JOAD MALLICK Vs. ABU MALLICK

JUDGEMENT

(1.) This appeal is by the Defendant against the judgment of the learned appellate Court affirming the decision of the trial Court in a suit brought by the Plaintiff for declaration of his title to the suit land and for confirmation of his possession thereto, alternatively for recovery of possession thereof if it is found that the Plaintiff is out of possession. The Plaintiff and the Defendant are step -brothers, both are sons of Asgar Mallick. The Plaintiff claimed title to the suit land from his father Asgar who, according to the Plaintiff, acquired the suit land on the basis of a sale deed dated November 30, 1937, (Ex. 1), made in the name of his son, Seraj Mallick, since deceased. The Plaintiff's further case was that Asgar remained in possession of the same till by way of Heba -bil -ewaz dated July 7, 1952, (Ex. 2) he made a gift of the same in favour of the Plaintiff who was the son of his fourth wife. It was alleged that the consideration for the said transfer, as also recited in the deed itself, was the copy of the holy Koran, which was given to him by the Plaintiff. As it transpired that the name of the Defendant was wrongly recorded in respect of the suit land, the Plaintiff instituted the suit for reliefs mentioned above.

(2.) The Defendant contested the suit stating, inter alia, that the suit land was purchased not by his father Asgar but by him in the benami of his step -brother, Seraj Mallick, that he being the owner thereof had been in possession of the same, the Heba -bil -ewaz executed by Asgar Mallick was collusive, manufactured, fraudulent, illegal, without consideration and ineffective and was never acted upon. Further, the said document was not accepted by any one on behalf of the minor nor was the same legally executed or attested. On the said and other averments the Defendant prayed that the suit be dismissed.

(3.) The following issues were framed at the trial: