ABDUL KABIR Vs. JAMILA KHATOON

JUDGEMENT

(1.) In the suit, which is the subject of this appeal, the plaintiffs claimed that on 16-2-1938, they had purchased holding No. 221 of Giridin town, area about 3 bigahs 8 kathas, by registered kobala from defendants 4 and 5, Md. Ishaw and Abdul Jabbar. The relationship of the parties will appear from the following pedigree. <FRM>JUDGEMENT_315_AIR(PAT)_1951Html1.htm</FRM> The plaintiffs alleged that defendants 4 and 5 had previously sold 3 kathas of holding NO. 224 to Mohammad Qasim who in his turn sold to Guldasta and Mt. Bibban (defendants 2 and 3). After having made the purchase, defendants 2 and 3 encroached upon holding No. 221, built houses and garages thereon, cut down the trees of the orchard and appropriated the fish from the tank. The plaintiffs, therefore, asked for a declaration of their title to holding No. 221 described in schedule of the plaint and for possession thereof. Defendants 2 and 3 contested the suit on the ground that defendants 4 and 5 had no title to the land in dispute. When Bulaki died, his father Mohan Mian was alive and so inherited one-sixth of Bulaki's share. In lieu of the share, Mohan obtained 2 1/2 bighas, of which he made a verbal gift to his daughter Mt. Bibban. The latter also purchased about 3 kathas from Md. Qasim and obtained settlement of 2 kathas from Equitable Goal Company. After amalgamating all the portions, Mt. Bibban constructed dwelling houses, garages and sunka well. Defendants 2 and 3 denied that they made any Encroachment on holding No. 221. Mossomat Jamila, defendant 1 alleged that Bulaki made an oral gift of the entire holding in her favour at the time she was married.

(2.) Upon these contentions, the learned Subordinate Judge held that the plaintiffs were entitled to 0/9/4 share of holding No. 221 and that defendants had made encroachment. As the plaintiffs failed to prove the exact measure of encroachment, the learned Subordinate-Judge refused to grant decree for ejecting the defendants. Against this decree, the plaintiffs have preferred this appeal. A cross objection has been filed on behalf of defendants 1, 2 and 3.

(3.) The first question to be examined is whether Ishaq and Jabbar had legal right to convey the entire sixteen annas share of holding No. 221 by the registered kobala. On behalf of the respondents, it was argued that Jabbar and Ishaq could make a valid transfer only of their shares and not of Hasiba or Jamila, who did not execute the kobala. It was pointed out that in the petition of compromise (Ex. 7) the two sisters had agreed that the Jharia property should be Bold to Md. Qasim, but as regards the Giridih property, the sisters had only authorised Abdul Jabbar to be the manager on their behalf. For the appellants, it was argued that since sisters had been benefited by the sale the brothers had the legal right to convey their shares, that they had implied authority to sell for the benefit of the joint estate. The argument has some attraction but it is invalid, for, the compromise petition expressly confers upon the two brothers the right to manage and not the right to sell the properties. In view of the express stipulation in the compromise decree, it is not possible to hold that there was an implied contract by which the two sisters authorised the brothers to sell.