MOHD AZIZ Vs. MOHD HANIF

JUDGEMENT

(1.) THIS appeal is directed by the appellants/defendants under section 96 of the CPC being aggrieved by the judgment and decree dated 31. 10. 1998 passed by the Ist Additional District Judge, Sagar in Civil original Suit No. 32-A/96 whereby the suit for declaration and injunction filed by Mohd. Hanif, the principle plaintiff the predecessor of the respondents has been decreed against them.

(2.) THE facts giving rise to this appeal in short are that the predecessor of the respondents namely Mohd. Hanif filed the aforesaid suit for declaration and injunction against the appellant no. 1, 3 to 7 and one Jagdish the deceased appellant no. 2 in respect of the house situated in Vivekanand Ward Sagar described in the plaint and its annexed map. Here in after the deceased the principle respondent is being stated the principle plaintiff.

(3.) AS per averments of the plaint initially the aforesaid house was the property of late Kale Khan, the father of the principle plaintiff Mohd. Hanif and the appellant no. 1 who in his life time gifted the same with possession to the principle-plaintiff, vide registered gift deed dated 19. 10. 64. The front part of such house was shown to be in dilapidated condition as it was damaged because of fire, while one tenant Hedar was residing in it's rear part. In the month of September 1994 the appellant no. 1 claimed such house to be his property on the strength of a registered Hibanama (Baksisnama), dated 26. 2. 1954 executed by said kale Khan whereas such document was not the document of disputed house. The possession of the house was never remained with the appellant no. 1 and the gift deed on which he is claiming the house is ab initio void document. According to the Muslim Personal Law the possession of the property was never delivered by Kale Khan through hiba to the appellant no. 1. Thus, appellant no. 1 did not have any title in such property. The taxes of such house are being regularly paid to the municipal corporation by the principle-defendant. The appellant no. 1 did not have any right to alienate or transfer of such house. Thus, the sale deeds executed by him in favour of the deceased " appellant no. 2 to 6 had not conferred any right to them as the same are executed by the appellant no. 1 without having any authority in respect of such property. The aforesaid purchasers on the strength of such sale deeds are making construction on the open space of such property. The appellant no. 7 has also made some construction on the strength of sale deed executed by the respondent no. 4 in his favour. With these averments the principle plaintiff prayed for declaring him to be the owner and occupier of said house and the appellant no. 1 did not have any right or authority to interfere in his possession and also not having any right to transfer the same by way of sale or otherwise. The alleged Hibanama dated 26. 2. 1954 the doucment of appellant no. 1 be also declared ab initio void. In pursuance of it, the perpetual injunction restraining the appellants to interfere in his possession of such property either by sale or otherwise is also prayed. During pendency of suit the prayer for possession is also amended against the appellants no. 2 to 6.