ALI HASAN Vs. MATIULLAH

JUDGEMENT

(1.) This second appeal has been preferred against the judgement and decree dated 18-7-85 passed by IV Addl. Civil Judge, Varanasi in Civil Appeal No. 156 of 1975 by which the judgement and decree dated 9-1-75 passed by III Addl. Munsif, Varanasi in Original Suit No. 17 of 1971 decreeing the suit of the plaintiff with costs for ejectment and possession was set aside.

(2.) Plaintiff-appellant Ali Nasan later on substituted by his heir Nurul Haq filed a suit (No. 17 of 1971) for possession and ejectment of the defendant-respondents on the allegations that premises bearing Municipal No. J-28/55, Agaganj, Jaitpur, Varanasi was the sole property of Abdul Gafoor, Abdul Shakoor, Smt. Fatima Bibi, Shami Ullah and Smt. Nabbubat Bibi. The defendants who were near relations of the plaintiff were permitted to live in the south eastern portion of the said premises as licensees. All the above owners executed a gift-deed in favour of Smt. Saira Bibi daughter of Abdul Gafoor. The defendants thus became licensee of Smt. Saira Bibi. On 12-5-1970 Smt. Saira Bibi sold the above premises inclusive of the portion in possession of the defendants to the plaintiff. A sale deed was executed. The licence in favour of the defendants was renewed. The defendants had agreed to vacate the portion in their possession as and when required by the plaintiff. However when the plaintiff called upon the defendant to vacate the suit portion, the defendants did not do so and ultimately a notice dated 6-11-70 was sent by the plaintiff. This notice was served on the defendants on 7-11-1970. On the failure of the compliance of the requirements of the notice calling upon the defendants to vacate the suit portion, the plaintiff filed a suit claiming possession and ejectment of the defendants from the suit portion.

(3.) Initially defendants 1 and 2 (Mati Ullah and Shami Ullah sons of Fateh Mohammad) filed a joint written-statement denying the allegations as set out in the plaint. At the foot of the written-statement a pedigree was given on which reliance was placed. The plea of the plaintiff that they are licensees was denied and the defendants came forward with an allegation that they are in possession since the time of their ancestors in their own right as owners. It was further alleged that Kalloo Mian was their common ancestor and Abdul Gafoor had only one anna share in the suit premises. The genuineness and validity of the gift deed executed in favour of Smt. Saira Bibi was denied. It was further alleged that Smt. Saira Bibi had no right to transfer the suit premises in favour of the plaintiff and in any case the sale deed is void and ineffective.