MOHD AYUB KHAN Vs. ASHIF ALI

JUDGEMENT

(1.) This First Appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 27.11.2007, passed in Civil Suit No.11-A/1998, by the First Additional District Judge, Waraseoni, District Balaghat, dismissing the suit of the appellants/ plaintiffs.

(2.) Brief facts giving rise to filing of this appeal are that one Mst. Noorjahan Begum, daughter of Inayatulla Khan, was the owner in possession of 24.934 hectare land of Village Nilaji, Patwari Circle No.16, Revenue Inspector Circle Lalbarra, Tahsil Waraseoni, District Balaghat, said Mst. Noorjahan Begum died issueless on 25.7.1993. Said Mst. Noorjahan Begum had instituted a Civil Suit in the Court of IV Civil Judge, Class-II, Balaghat, bearing Civil Suit No.20-A/1991, in which the family genealogy was given according to which the appellants herein were the legal representatives of father and brother of said Mst. Noorjahan Begum. During pendency of the said suit, Mst. Noorjahan Begum died and nobody appeared in the said suit, therefore, the same was dismissed. After the death of said Mst. Noorjahan Begum, the names of appellants were recorded in the land in suit. However, all of a sudden, the original defendant No.2 and respondents No. 3 and 4 tried to take forcible possession of the land, therefore, suit was required to be filed by the appellants in the Court of I Additional Civil Judge Class-II, Waraseoni, bearing C.S.No.5-A/94. A written statement was filed in the said suit by the original defendant Yushuf Khan and respondents No. 3 and 4 herein that the land in the said suit was bequeathed to the respondents No. 3 and 4 and to the original defendant Yushuf Khan vide a Will dated 15.2.1992 by Mst. Noorjahan Begum. It was alleged that the said Will was got registered after the death of Mst. Noorjahan Begum on 13.8.1993. By the said Will not only the land in said suit, but other lands were also bequeathed to the said respondents. In the said Civil Suit, a compromise was entered into on 8.8.1994 wherein the respondents No. 3 and 4 have admitted the claims of the appellants over the land in dispute. However, the said compromise application remained pending and since the suit was transferred from one Court to another and after the transfer, the case number was changed to Civil Suit No.155-A/1998, ultimately, a final decree on the strength of compromise was passed on 15.2.1999. The respondents No. 3 and 4 were fully aware of the fact that they have relinquished their right if at all on the land in dispute and, therefore, were not entitled to ownership over the said land.

(3.) In between this, the respondent No.1 herein filed some suit against the deceased Yusuf Khan and the respondents No. 3 and 4 for specific performance of the agreement to sell agricultural land saying that there was an agreement executed by Mst. Noorjahan Begum with respect to sale of said land and since by virtue of the Will executed by said Mst. Noorjahan Begum, the original defendants No. 2,3 and 4 were the legal representatives of said Mst. Noorjahan Begum and since after the death of said Mst. Noorjahan Begum, they were liable to execute the sale deed in fulfilment of the agreement of sale, such a decree be granted in favour of the respondent No.1. Though a written statement was filed by the respondents No. 2,3 and 4 in the said suit filed by the respondent No.1 for specific performance, but they proceeded ex-parte and the suit was decreed in favour of the respondent No.1. When the appellants came to know about the execution of the said ex-parte judgment and decree, they obtained the information and since such a decree has been obtained in collusion with original defendants No. 2,3 and 4, such a decree is bad in law. The suit was required to be filed for the said purpose.