FATIMA BI Vs. KU. NAJNIN

JUDGEMENT

(1.) This second appeal has been filed by the defendants challenging the judgment and decree dtd. 29/10/2002 passed by 3rd Additional District Judge, Hoshangabad, Link Court Sohagpur in regular civil appeal no.24-A/02 confirming the judgment and decree dtd. 19/11/2001 passed by Civil Judge Class-I, Piparia, District Hoshangabad in civil suit no.118-A/96 whereby, learned trial Court decreed the suit of the respondents for declaration of title and permanent injunction with regard to land Khasra no.54/1 area 26.67 acre, situated in Village Mehandikheda, Tahsil Piparia, District Hoshangabad.

(2.) In short the facts are that, the plaintiffs/respondents instituted a suit claiming themselves to be successors of Zahiruddin, who was born out of wedlock of second wife of Shamsuddin, whereas the plaintiffs are the children from first wife Aysa Bi. It is alleged that on 23/10/1972, father of plaintiffs, Shamsuddin purchased the suit land in the name of minor son Zahiruddin for consideration of Rs.1,000.00 from the original owner Smt. A.G. Granvile, but due to ailment, Shamsuddin instructed Aziz Mohd. to get the sale deed executed in the name of Zahiruddin and he being minor, name of Aziz Mohd. was shown in the sale deed as guardian. As trees of Sagwaan and Satkate were standing on the land, therefore, no agriculture was done. In the month of July 1992, when the plaintiffs made contact to the Patwari for getting their name mutated, then they came to know that there is no land in the name of Zahiruddin in the village. Thereupon, the plaintiffs applied for certified copies of the Khasra entries, as well as of the sale deeds and came to know that the land area 53.38 acre is recorded in the name of Edit William, Adaginvil widow of H.S. Greenvil and Aziz Mohd. Habibullah and in the Khasra of the year 1991-92, name of defendants is recorded as bhoomiswami. Zahiruddin was born on 15/9/1967 and attained majority on 15/9/1985 and died on 28/2/1989 whereas Aziz Mohd. had died in the year 1987 itself. On what basis name of Aziz Mohd. was recorded in the revenue record, is not clear but he had no right to get the land recorded in his name in the minority of Zahiruddin, which does not confer any right on Aziz Mohd. On the aforesaid and on inter alia allegations the suit was filed.

(3.) The defendants appeared and filed written statement denying the plaint allegations. Taking several objections, the defendants contended that they received the disputed land in succession through Aziz Mohd., regarding which the original owners raised objections which were overruled by Tahsildar and declared that the land of Khasra no.54/1 is of Mohd. Aziz. The previous owners A.G. Huge and Smt. William sold 1/3 share of the land in question to Mohd Aziz vide registered sale deed dtd. 29/2/1960, later upon raising objection by Greenvil, Aziz Mohd. got executed the sale deed in the name of Zahiruddin who was residing with Aziz Mohd. and the amount of consideration of Rs.1000.00 was not paid by Shamsuddin, who was driver and had no sufficient means. The plaintiffs without having any right want to grab the suit land, which has been in possession of Aziz Mohd. since prior to the year 1960. The defendants claiming themselves to be in possession of the land with effect from the year 1960, also claimed themselves to be owner, on the basis of adverse possession. On inter alia contentions, the suit was prayed to be dismissed.