SARIFAN BIBI Vs. DILWAR HOSSAIN

JUDGEMENT

(1.) This Second Appeal is against the decision of Sri S. N. Bhatta-charjee, Additional District Judge, 24 Par-ganas, in Title Appeal No. 1102 of 1969 affirming those of Sri B. P. Bose, Subordinate Judge, 5th Court, Alipore, made in Title Suit No. 80 of 1963.

(2.) The facts of the case lie in a short compass which may be stated like this : One Sukhdas Bind mortgaged some properties to Rafikunnessa, wife of Md. Yusuf and Rahutunnessa, his mother. Rafikunnessa died, Md. Yusuf inherited her properties. Sukhdas Bind sold the property subject to that mortgage to Sarifan Bibi -- the plaintiff at a sum of Rs. 5,000/- on 9th August, 1955. On September 3, 1955, she brought the Title Suit No. 50 of 1955 against Md. Yusuf for redemption of the mortgage. On the 18th August, 1958, a preliminary decree was passed. That decree was put into execution which was registered as Title Execution Case No. 12 of 1958 at the instance of the plaintiff Sarifan Bibi against the defendant No. 2. Respondent No. 1 preferred an objection under Order 21, Rule 58 of the Code of Civil Procedure claiming the property as his own. Misc. Case started on the basis of that claim application, was allowed to be dismissed for default on 12th August, 1961, as the judgment-debtor Md. Yusuf cleared up the dues of the Title Execution Case No. 12 of 1958. Thereafter no further step was taken by the claimant Dilwar Hossain. The plaintiff thereafter got a final decree in Title Suit No. 50 of 1955, which was upheld upto the Appellate Court. The plaintiff next started Title Execution Case No. 14 of 1962 in the 5th Court of Subordinate Judge at Alipore and the property in suit which has been described in Schedule 'A' was attached on 13th August, 1972. Defendant No. 1 Dilwar Hossain again filed an application under Order 21, Rule 58 of the Code of Civil Procedure. He claimed to have purchased the said property by means of a sale deed, Ext. C from Md. Yusuf, his brother on the 6th November, 1958. That application was registered as Misc. Case No. 40 of 1962 in that Court. His prayer for releasing the attachment of the said property was allowed on December 22, 1962. Against that order the plaintiff has filed the suit under the provisions of Order 21, Rule 63 of the Code of Civil Procedure. The plaintiff asserted that defendant No. 1 was merely a benamdar of defendant No. 2 the judgment-debtor; that the property alleged to have been sold was for a paltry sum of Rs. 1,000/- though the actual value was much more than that which would not be less than Rs. 15,000/-; that the conveyance dated 6th November, 1958 was executed by the defendant No. 2 in favour of defendant No. 1 just after the preliminary decree in Mortgage Suit No. 50 of 1955 was passed. It was only to delay and defeat the claim of the plaintiff; it was a sham and colourable transaction; that the defendant No. 2 was all along in possession of the property in suit and defendant No. 1 had no right, title and interest as well as possession in the said property on the strength of sale deed referred to above. On the above allegations the plaintiff prayed for declaration that defendant No. 1 had no right, title and interest or possession in schedule "A" property and that the same was liable for attachment for the dues of the plaintiff and that she was entitled to realise the decretal dues by sale of such properties. Defendant No. 1 has contested the claim of the plaintiff. He has stoutly denied all the allegations of the plaint. According to him he is a bona fide purchaser for value of the property in suit. The sale in question was for consideration and that the said sale deed could not be said to be a sham and colourable transaction. It was further asserted that since his purchase he was in possession of the property in question.

(3.) Both the Courts below found against the plaintiff. As such this appeal has been preferred by her.