LALITA DEVI Vs. SYED AQUIL AHMAD

JUDGEMENT

(1.) THE defendant No.8 Ram Nagina Singh was the original appellant. On his death during the pendency of this first appeal his legal representatives have been substituted. Likewise the respondent No.1 Bibi Hasbun Nisha who was plaintiff No.1 also died and her legal representatives have been substituted. THE first appeal was filed by the original defendant No.8 against the judgment and decree dated 13.3.1998 passed by Sri Raghuraj Singh, the learned 2 nd Additional Subordinate Judge, Bhagalpur in Title Suit No. 140 of 1974 decreeing the plaintiff respondents' suit for declaration of title and recovery of possession over the suit land and for declaration that the order passed under Section 145 Cr.P.C. proceeding is erroneous and illegal.

(2.) THE plaintiff respondent Nos. 1 and 2 filed the aforesaid Title Suit No. 140 of 1974 for declaration of title and recovery of possession over the suit property alleging that the holding No. 14 ward No.5 circle No.7 measuring about 6 kattha 12 dhurs and 11 dhurkies of land comprised within plot Nos. 8377 and 8378 belonged to one Rahim Bux. THE said Rahim Bux had one son namely Wali Ahmad and a daughter Bibi Ayasha. By amicable settlement between the said Wali Ahmad and his sister Bibi Ayasha 2 kattha 2 dhurs 5 dhurkies land in the western portion of plot No. 8377 was allotted in favour of Bibi Ayasha and the remaining land measuring 4 kattha 10 dhurs 6 dhurkies comprised within plot No. 8378 and eastern portion of plot No. 8377 i.e. the entire eastern portion to the land of Bibi Ayasha remained in possession of her brother Wali Ahmad but there was no separate holding. THE lands of Wali Ahmad i.e. 4 kattha 10 dhurs 6 dhurkies along with his other lands were sold in civil court decree which was purchased by one Soukhi Mandal who was decree holder. His name was recorded in the municipality along with Bibi Ayasha in holding No. 18. THEre was litigation between the decree holder and Wali Ahmad for setting aside the sale and a compromise was arrived at between the heirs of Soukhi Mandal and Wali Ahmad wherein Wali Ahmad paid the decreetal amount to the decree holder after borrowing the money from his daughter Bibi Zaibun Nisha and the sale of 4 kattha 10 dhurs 6 dhurkies of plot No. 8377 and 8378 and others were set aside. Subsequently, Wali Ahmad sold the said land measuring 4 kattha 10 dhurs 6 dhurkies of plot Nos. 8377 and 8378 and 1 kattha 17 dhurs 8 dhurkies land of plot No. 8374 to his daughter Bibi Zaibun Nisha by registered sale deed dated 30.10.1934. THE name of Bibi Zaibun Nisha was mutated along with Bibi Ayasha in the holding which was then numbered as holding No.19 in the year 1949-50. In 1958-59 the holding number was changed to 22 from 19 and only the name of Bibi Zaibun Nisha was recorded and by mistake name of Bibi Ayasha was left. However, Bibi Zaibun Nisha was entitled to be recorded with respect to only 4 Kattha 10 dhurs 6 dhurkies. THEreafter Bibi Zaibun Nisha sold the said purchase land measuring 4 kattha 10 dhurs 6 dhurkies of plot No. 8377 and 8378 to Alimuddin by registered sale deed dated 5.8.1958. This sold property has been described in Schedule B of the plaint.

(3.) THE learned counsel Mr. Ramosh Jha appearing on behalf of the appellant submitted that even the case of the plaintiff is believed that Ayasha was given 2 kattha 2 dhurs 5 dhurkies in plot No. 8377 then how the plaintiffs are in possession of the entire land measuring 6 kattha 12 dhurs 11 dhurkies. In fact the said land measuring 2 kattha 2 dhurs 5 dhurkies was not the land of Ayasha as in the partition she was not allotted any land rather after selling 4 kattha 10 dhurs 6 dhurkies the remaining land was in possession of Wali Ahmad but the learned court below without considering this fact misunderstood the case and decreed the plaintiffs' suit. THE father of defendant No.1 had purchased the said land from Washi Ahmad who was the owner of the said property after death of Wali ahmad because the other sons and daughters of Wali Ahmad had relinquished their interest in favour of Washi Ahmad and Bibi Zaibun Nisha. THE learned counsel further submitted that the trial court has not properly considered the evidences documentary as well as oral and has wrongly decreed the plaintiffs' suit. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside.