BIBI AZIMAN Vs. SALEHA

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for declaration that they had l/3rd share (5 annas 4 Pies) in lands measuring 1.504 acres which at one time belonged to their father. They made a further prayer for being put in possession after dispossessing defendant No, 1. A short genealogy will indicate the relationship of the parties. Maulvi Mazhar Hussain alias Chamari and Nazir. Hussain were two brothers: Mazhar Hussain had two sons, viz., Hafiz Zafar Hussain and Dr. Aminuddin Ahmad (Defendant 7) besides two daughters, Mosammat Aziman and Mosammat Shakuran (Pltffs. 1 and 2). Defendants 2 and 3 are the sons of Hazif Zafar Hussain, defendant 4 is the widow and defendants 5 and 6 are his daughters. In the other branch, Nazir Hussain left a son Ahmad Zahirul Haque whose widow Mostt. saieha is defendant 1 in this action. Defendants 8 to 12 intervened in the suit as being transferees from defdt. 1. Plaintiff's case was that the land in suit belonged exclusively to Maulvi Mazhar Hussain and he was recorded In the record-of-rights. After his death, the plaintiff, Hatiz Zafar Hussain and defendant 7 came in possession of those lands as absolute owners. Defendant 1 instituted a title suit (No. 39/20 of 1949/1951) against defendants 2 to 7 without making the plaintiffs parties, praying therein for a decree for administration of the estate of Ahmad Zahirul Haque and other reliefs. The plaintiffs were not at all aware of that suit and there was a fraudulent compromise between the parties to that suit, according to which defendant l who was the plaintiff in that suit, got 1.504 acres (the lands in this suit) exclusively in her share. A final decree was prepared on the basis of that compromise on 13-5-1952 and defendant 1 took steps for the execution of that decree. A pleader commissioner was appointed for giving delivery of possession and he was accompanied by military police when he went to the spot. The plaintiffs then learnt of the suit, the collusive compromise and the decree and they filed a petition on 4-10-1953 before the Commissioner stating that they had l/3rd share in the lands of which possession was sought to be delivered to the decree-holder of that case. The Commissioner however, submitted a report regarding symbolical delivery of possession and the plaintiffs being dispossessed, they filed an application on 9-11-1953 under Order 21 Rule 100 of the Code of Civil Procedure in Execution Case No. 22 of 1952. That application was registered as Miscellaneous Case No. 42. of 1953, but that was dismissed on 14-5-1954. Defendant 1 disclosed in that miscellaneous case that there was a compromise in a land registration case as well to which plaintiffs were parties and they had, in fact, agreed to the terms of the compromise recorded in that case. The plaintiffs were surprised to learn of that compromise, inasmuch as that also was fraudulent and collusive and in no way binding, on them. The plaintiffs being aggrieved by the dismissal of their miscellaneous case filed an application in the High Court for revision of that order (Civil Revision no. 699 of 1954), but it was dismissed on 16-9-1954. The properties belonged exclusively to Mazhar Hussain and as such, the plaintiffs had l/3rd share in those lands, the other shares belonging to their two brothers and their descendants. On these allegations, they instituted this suit on 14-8-1955.

(2.) Defendant 1 took several pleas and her case was that the lands in suit belonged to both the brothers, viz., Mazhar Hussain and Nazir Hussain, but as former was the elder he happened to be recorded in the record-of-rights. After the death of the two brothers, the lands in suit and other lands came in possession of their heirs. A dispute arose sometime after the death of Mazhar Hussain between Hafiz Zafar Hussain, the plaintiffs and others, inasmuch as the heirs of IVIazhar Hussain claimed the properties recorded in his name as being his exclusive properties, whereas Ahmad Zahirul Haque representing the branch of Nazir Hussain claimed a moiety share in all those lands, me dispute was settled between the parties and a compromise was arrived at in Land Registration Case No. 501/D of 1926-27. According to that compromise, the heirs of Nazir Hussain got half share in the properties standing either in the name of Mazhar Hussain or Nazir Hussain and the other half was to belong to the heirs of Mazhar Hussain. The plaintiffs were parties to that land registration case and they agreed to the terms of the said compromise after a careful consideration of all the facts and circumstances. That compromise was acted upon by the parties and, in fact, they came into possession on that basis and got themselves mutated in Register D. Ahmad Zahirul Haque was unfortunately killed during the communal disturbances of 1946 and he left his widow, defendant 1, Hafiz Zafar Hussain and Dr. Aminuddin Ahmad, defendant 7, as his heirs according to the Sunni School of Mohammadan Law. Defendant 1 happened to be at Delhi at the time of the death of her husband Ahman Zahiru Hague and thus latar Hussain and Dr. Aminuddin Ahmad misappropriated the properties of her husband. They did not pay even her dower debt and as such, she filed Title suit No. 39 of 1949 impleading all the heirs of Ahmad Zahirul Haque as parties to that suit. The plaintiffs were not the heirs of Ahmad Zahiru Haque and as such, they were not made parties. That suit, after a keen contest, was compromised on 13-5-1952, and, according to the terms incorporated therein, she was to get the lands which are the subjectmatter of the present suit. She executed the decree passed on the basis of that compromise in Execution Case No. 22 of 1952 and obtained delivery of possession on 4-10-1953 in respect of those lands. Neither the plaintiffs nor the other heirs of wazhar Hussain had any concern with those lands. The compromise in the land registration case was binding on the plaintiffs and the plaintiffs being parties to that compromise they had no right to challenge it. She further stated that the suit was barred by limitation. She further disclosed that she had no interest left in the lands in suit, inasmuch as she had transferred them and the transferees were necessary parties to the suit. Defendant 6 supported the case of the plaintiffs and she alleged that the disputed properties belonged exclusively to her grand- lather Mazhar Hussain without the co-partnership of others. The transferees (defendants 8 to 12) supported defendant 1 end their case was that they were bona fide purchasers for value. It appears that there were four sale deeds in their favour from the 25th January, 1955 and upto the 19th February, 1955.

(3.) Besides the issue regarding limitation, the other main issues in the case were as to whether the properties in suit belonged exclusively to the plaintiffs' ancestor and whether the compromise decrees in the land registration case and Title Suit No. 39/20 of 1949/1951 were legal, valid and binding on the plaintiffs. The Additional Subordinate Judge held that the compromise arrived at in the land registration case was genuine, binding on the parties and it was acted upon. His further finding was that the plaintiffs were not bound by the other compromise arrived at in Title Suit No. 39/20 of 1949/1951, inasmuch as they were not parties to that suit and accordingly he held that the lands in suit were the joint properties belonging to the heirs of Mazhar Hussain and Zahirul Haque In which the plaintiffs had 1/6th share. He took the view that the suit not having been instituted within one year of the dismissal of Miscellaneous Case No. 42 of 1953, It was barred by time and, on this ground, he refused to give any relief to the plaintiffs. The result was that he dismissed the entire suit, and being aggrieved by that decree, the plaintiffs have preferred this appeal.