SHAKIL AHMED Vs. HAROON RASHID

JUDGEMENT

(1.) The plaintiffs are the appellants against the judgment of affirmation. The original plaintiffs were mother and her children. It is a specific case of the plaintiffs that plaintiff No.1 Khursida Begam purchased the land of the suit premises No.10 B Anjuman Road as descirbed in the schedule of the plaint from its owners by a registered kobala dated 1st of February, 1971. She mutated her name in the record of Calcutta Municipal Corporation. At the time of purchase her husband Aktar Ali, his brother Haroon Rashid, and his sister Khairunnessa were the three thika tenants of said property. Aktar Ali and his brother and sister had other joint properties which they partitioned amicably through the deed of partition dated 20th December, 1979. On the said deed of partition Khairunnessa got premises No.18 Shamsul Huda Road and her two brothers namely Aktar Ali and Haroon Rashid were allotted suit premises at 10 B Anjuman Road, 16 Shamsul Huda Road, 9/H/4 Anjuman Road and 9/H/2 Anjuman Road jointly. The premises at 16 Shamsul Huda Road was sold out jointly by Aktar Ali and Haroon Rashid. Aktar Ali and her wife Khursida Begam (plaintiff No.1) were dependent upon Aktar's younger brother Haroon Rashid (defendant No.1). Haroon Rashid (defendant No.1) proposed to plaintiff No.1 Khursida Begam through her husband to execute a general power of attorney in favour of defendant No.1 for managing and looking after the suit property at premises No.10 B belonging to plaintiff No.1. plaintiff No.1 in good faith executed document on 27.11.1982 believing the same to be a general power of attorney but said document was not read over to the plaintiff. Plaintiff's three sons namely plaintiff Nos. 2, 3 and 4 also put their respective signatures in said document as witness. Aktar Ali died on 15th of November, 1985 and after his death the defendant No.1 claimed himself to be the owner of half of the suit property by virtue of a purported Heba-Bil-Ewaz dated 27.11.1982 and further claimed exclusive ownership of premises No.9/H/4 Anjuman Road which is a thika tenanted land under the commissioner of Wakfs of West Bengal.

(2.) The defendant No.1 is claiming exclusive ownership of 9/H/4 by virtue of a purported deed of partition dated 31st of October, 1983. On 16th of October, 1986 the defendant No.1 asserted his title through said alleged Heba Bill Ewaz dated 27.11.1982 and the purported partition deed dated 31.10.1983 and tendered xerox copies of the same. The plaintiffs for the first time came to know about fraud practised by defendant No.1 in obtaining said documents by representing that a power of attorney was executed by the plaintiff No.1 in favour of the defendant No.1. There was never alleged oral Heba of the property in 1975. As plaintiff No.1 had ten children, there was no question of gifting away the suit property to her husband and her 'Debar' by said alleged deed of gift dated 27.11.1982.

(3.) The alleged deed of partition dated 31.10.1983 was an unjust document whereby defendant No.1 got the better portions of the properties and that the same was obtained by defendant No.1 by practising fraud upon the plaintiff's husband Aktar Ali. The defendant No.1 started to put pressure upon the plaintiffs for partition by metes and bounds on the strength of said fraudulently obtained deed dated 31.10.1983 though there cannot be partition of thika tenancy land. The defendant was also putting pressure upon the plaintiffs for handing over possession of the half share of suit property. Under these circumstances the plaintiffs were compelled to file the suit praying for declaring the purported Heba Bill Ewaz dated 27.11.1982 and purported deed of partition dated 31.10.1983 being illegal, inoperative, invalid and not binding upon the plaintiffs in respect of the suit premises and for injunction and other consequential reliefs.