MOHD. DILSHAD Vs. HABIBAN

JUDGEMENT

(1.) This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for joint possession was decreed and judgment and decree dated 16.11.1996 in civil suit No. 107 of 9.4.1996 was set aside and further appellants were restrained from alienating the suit land.

(2.) Briefly the case of the plaintiff-respondent, as averred in the plaint, was that originally Jani alias Jan Mohd. son of Ghudu was owner in possession of half share in land measuring 35 kanals 10 marlas situated in the revenue estate of Malerkotla as per jamabandi for the year 1968-69 but he was in exclusive possession of land measuring 6 kanal 5 marlas (comprised in khasra No. 1504/3/2-5 and 1507/4-0). It was further averred that marriage of plaintiff-respondent was settled with appellant-defendant No. 4 on 6.8.1971 who is the son of Jani alias Jan Mohd. In consideration of marriage of appellant-defendant No. 4 with the plaintiff-respondent Jani son of Ghudu (father-in-law of the plaintiff-respondent) made a gift of aforesaid land measuring 6 kanal 5 marlas in favour of plaintiff-respondent and on the same date registered gift deed was executed in her favour. The aforesaid gift deed was duly thumb marked by Jani (donor) after admitting the same to be correct, the plaintiff-respondent accepted the said gift and also thumb marked the same. Appellant No. 4 also signed the same as a consenting party. The said gift deed was presented before the Sub Registrar, Malerkotla for its attestation and registration and it was registered as Deed No. 1600 dated 6.8.1971. It was further averred that on 6.8.1971 plaintiff-respondent accepted the gift deed and took actual possession of the suit land as a denee from the donor. Thereafter, the marriage of plaintiff-respondent was solemnized with appellant-defendant No. 4 as per Mohammedan rites.

(3.) The plaintiff-respondent being an illiterate Muslim lady could not get the mutation of the suit land entered and sanctioned in her favour on the basis of the aforesaid gift deed and the name of Jani (father in law of the plaintiff-respondent) continued in the revenue record. Jani was cultivating the suit land under plaintiff-respondent as a licensee and was giving share of the produce. Jani died on 15.9.1997. After his death, appellant defendants No. 1 to 3 started declaring themselves as the owners of the suit land. They with the help of appellant No. 4 forcibly took possession of the suit land on the basis of a judgment and decree dated 16.11.1996 passed in civil suit No. 107 of 9.4.1996 and mutation No. 22383 sanctioned on the basis of the above said judgment and decree. It was further averred that the said judgment and decree and mutation sanctioned on the basis of the above said decree was illegal and void qua the rights of the plaintiff-respondent and was liable to be set aside. Since the appellants were issuing threats to alienate the suit land in order to defeat the rights of the plaintiff-respondent, the present suit was instituted.