NASEEMA BAI Vs. JAIPRAKASH

JUDGEMENT

(1.) THIS appeal under section 96 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 20 -4 -1999, passed by Additional District Judge, Burhanpur in Civil Suit No. 38A/98, rejecting the plaintiff's suit for declaration to the effect that she is the owner of the suit plot.

(2.) THE facts in brief shorn of details and necessary for the disposal of the appeal lie in a narrow compass : - 1. Plaintiff/appellant Naseema Bai filed a suit stating that the suit plot situated at Mohalla Lohar Mandi, Burhanpur was received by her by way of gift from Batul Bai in the year 1974. The plaintiff was in need of some money, therefore, she mortgage the suit plot in favour of one Salma Bai for a sum of Rs. 2,000/ - . As the husband of Salma Bai was transferred from Burhanpur to Ratlam, she insisted for return of Rs. 2,000/ - , therefore, the plaintiff requested defendant No. 2 Rabab Bai who was the close relative of her to give Rs. 2,000/ - to Salma Bai and for the security of the amount, she (plaintiff) proposed that she will mortgage the suit plot in favour of defendant No. 2 Rabab Bai to which Rabab Bai agreed. Accordingly, for the security of Rs. 2,000/ - the suit plot was mortgage in favour of Rabab Bai but as per then existing practise a sham document of sale deed was executed in favour of Rabab Bai. The same was never intended to be used as sale deed and was to be used only as mortgage deed. Later on defendant No. 2 though she was only a mortgagee sold the suit plot to respondent No. 1 Jai Prakash. Jai Prakash applied for the mutation of his name on the suit plot. A notice of mutation was received by the appellant. 2. The appellant submitted her objection which was not accepted and the directions for the mutation of the name of respondent No. 1 Jai Prakash in place of appellant were given. Appeal filed by the appellant against this order of mutation was also dismissed. Thereupon, the plaintiff filed this suit for declaration that the document of sale dated 13 -1 -1975 alleged to have been executed by the plaintiff in favour of Rabab Bai be declared as void. She also prayed for the delivery of possession of the suit plot.

(3.) DEFENDANT No. 1 filed a separate written statement and submitted that the disputed property was sold by the plaintiff vide document dated 13 -1 -1975. The transaction was an out and out sale and not a mortgage. On the basis of sale deed Rabab Bai became the owner of the suit land and she was entitled to sell the plot and accordingly, she sold the suit plot to him. It is also the case of defendant No. 1 that Rabab Bai was in possession of the suit plot since 13 -1 -1975 and the suit is barred by limitation as the same has not been filed within 12 years. The defendant No. 1 further pleaded that the plaintiff has filed this false and vexatious suit with a view to blackmail him and therefore, he is entitle to compensatory cost.