ABU KHAN Vs. MORIAM BIBI

JUDGEMENT

(1.) THIS is a Defendant 's Second Appeal from the confirming decision of the Second Additional District Judge, Cuttack passed in Title Appeal No. 16/46 of 1971/70. It arises out of a suit for declaration of title to and confirmation of possession over the suit property or, in the alternative, for recovery of possession of the same by evicting the Defendant there from, and for permanent injunction restraining him not to interfere with the right, title, interest and possession of the Plaintiff. The suit property is house, property in Bakharabad, of Cuttack and comprises of one tiled room and five thatched rooms.

(2.) ADMITTEDLY the Plaintiff 's mother Saburan Bibi was its owner having purchased it on 30 -3 -1948. Plaintiff is the daughter and the only issue of, the said Saburan Bibi. The latter made a gift of the suit property in her favour that is the Plaintiff, by a gift deed dated 31 -5 -1961 (Ext. 2). Thereafter Saburan Bibi died on 10 -4 -1964. The Plaintiff in due course got her name mutated in respect of the suit property in the landlord 's sirista and has been paying rent and public dues in respect thereof regularly. Though the Plaintiff was given away in marriage about a year after the deed of gift and was staying in her husband 's house at Jaleswar, she had been looking after her mother and to all her comforts even after her marriage. Taking advantage of her absence, the Defendant, one Noor Mohammed, uncle of the Plaintiff and one Ramjan Ali colluded together and obtained a fraudulent deed of cancellation dated 28 -8 -62 (Ext. G) from Saburan Bibi by which the aforesaid deed of gift was cancelled, and subsequently obtained a nominal and fraudulent deed of sale from her in favour of the Defendant on 19 -2 -1963. While the Plaintiff was in possession of the suit property as owner, she allowed the Defendant who was in helpless condition at the time to occupy one room of the suit house and subsequently she allowed him to possess three rooms as house as tenant on a monthly rent of Rs. 30/ -. After obtaining the nominal and fraudulent sale -deed from Saburan, he has been trying to claim absolute interest in the suit property which has given rise to the cause of action for the present suit. This, in substance, is the case of the Plaintiff.

(3.) THE defence case is that the Plaintiff in collusion with and at the instance of her maternal uncle: pir Mohammed exercised undue influence and practised fraud on Saburan Bibi and managed to procure a collusive and fraudulent deed of amicable settlement from her on 31 -6 -1961, which is called by the Plaintiff as the deed of gift (Ext. 2). Subsequently, Saburan Bibi became aware of the undue influence and fraud practised on her and validly Cancelled the deed of gift by a registered deed of cancellation dated 28 -8 -1962 (Ext. G). As she was in need of money for her maintenance, she validly transferred the suit property to the Defendant for a valuable consideration of Rs. 2, 000/ - under a registered sale deed dated 19 -2 -1963 and put the latter in possession thereof. Since then the Defendant has been possession of the suit property in his own right and has dug a well and constructed five thatched rooms subsequent to the acquisition of property under the aforesaid sale deed from Saburan Bibi. The Plaintiffs claim of possession and title is therefore, denied.