NAG NARAIN SINGH Vs. MOHD ADALAT HUSSAIN

JUDGEMENT

(1.) This appeal is against the judgment of affirmance passed in Title Appeal No. 141 of 1989/5 of 1995 by 2nd Additional District Judge, East Champaran, Motihari affirming the judgment passed by Additional Munsif, Sikrahna at Motihari in Title Suit No. 5 of 1986/47 of 1988.

(2.) Briefly stated the case of the plaintiff- respondent No. 1 is that plot Nos. 344 and 790 having an area of 14 Katha 9 dhurs and 1 Bigha 5 Katha 6 dhurs respectively belonged to the family of plaintiff's vendor Mir Tauhid (defendant no. 7) whose father Mir Farhat died leaving behind three sons, namely, Mir Abdul Rahim, Mir Halim and MirTauhid. The eldest Mir Abdul Rahim died leaving behind his wife Ainulissa and four daughters, namely, Mehrunnissa (defendant No. 4), Sehrunnissa (defendant No. 5), Hasmunnissa (died unmarried) and Anwari Begum (defendant No. 6). In 1938 there was oral partition in the family and the entire lands of plot Nos. 344 and 790 besides other plots were allotted to Mir Tauhid (defendant No. 7). Defendant No. 7 on 23.5.1973 sold the entire land of plot No. 344 vide registered sale deed (Exhibit-2) in favour of mother of the plaintiff and on 10.2.1976 in favour of father of the plaintiff the entire land of plot No. 790 vide registered sale deed (Exhibit-2/A), who came in possession thereof. According to the plaintiff, plot number was wrongly entered in both the sale deeds (Exhibits. 2 & 2/A) and to rectify the same deed of rectification (Exhibits. 3 & 3/A) was executed by defendant No. 7 on 5.1.1981 and 26.11.1980 respectively. Plaintiff's further case is that defendant 1st set started creating trouble and for which a proceeding under Section 144 and later 145 CrP.C. was initiated and defendant dispossessed the plaintiff in the year 1985. From the show cause filed by the defendant 1st set in the proceeding under Section 145 Cr.P.C, plaintiff learnt that defendant No. 1 had purchased the suit land vide registered sale deed dated 1.10.1980 from Anwari Begum (defendant No. 6), who claimed it as her property, and defendant 2nd set also claimed to have purchased the suit land from her vide registered sale deed dated 12.2.1981. Hence, the plaintiff filed suit for declaration that the sale deeds dated 1.10.1980 and 12.2.1981 executed by Anwari Begum (defendant No.6) in favour of defendant 1st and 2nd set are void, and, further for declaration of plaintiff's title and possession over the property mentioned in schedule 1 and for restraining defendant No.1 from interfering with the suit property.

(3.) Defendant No. 1 -appellant in the written statement denied the story of oral partition in the year 1938. According to him, partition took place on 16.7.1936, vide Exhibit -B and the suit property was allotted in the share of Mir Abdul Rahim and subsequently it came to the share of Anwari Begum (defendant No. 6), who vide registered sale deed dated 1.10.1980 (Exhibit-A) sold the same in favour of defendant No. 1 and since then he is coming in possession over the same. Defendant No 6 had brought Title Suit No. 268 of 1979 for partition against her sisters and uncle in which the suit plots were also included and during the pendency of that suit the aforesaid sale deed to defendant No. 1 was executed.