BIBI ABEDA KHATOON Vs. MD UMAR & ORS

JUDGEMENT

(1.) The defendant-2nd party respondent appellant has filed this Second Appeal against the Judgment and Decree dated 15.12.1995 passed by the learned Ist Addl. District Judge , East Champaran at Motihari in title suit No.25 of 1994 / 1 of 1994 whereby the learned lower appellate Court allowed the appeal and set aside the Judgment and Decree dated 31st March, 1994 passed by the learned Ist Addl. Munsif, Motihari in partition suit No.36 of 1989 / 62 of 1994.

(2.) The plaintiff respondent filed the aforesaid partition suit praying for declaration that the sale deed dated 15.05.1957 executed by Bibi Rashidan as illegal and inoperative and also prayed for partition of his share in the suit property measuring 14 dhur. The plaintiff respondent claimed the aforesaid relief alleging that 1 katha 8 dhur land belong to Mostt. Manoram. On her death, the said property devolved on her two sons, namely, Mobarak Hussain and Amanat Hussain. Amanat Hussain sold his half share to the defendant No.1. Mobarak Hussain died leaving behind his wife Bibi Rashidan and 3 sons, namely, Md. Ibrahim, Md. Suleman and Ahmad Hussain, the defenantNo.1 and daughter Fauzdar Bibi. Md. Ibrahim died leaving behind his son, defendant No.2 whereas Md. Suleman died leaving behind his two son who are defendant No.3 and 4. The son and daughters of Bibi Khodaija are defendant No.5 and 6. According to the plaintiff Bibi Rashidan on her behalf and on behalf of her minor son Ahmad Hussain sold 7 dhur land by registered sale deed dated 20.11.1948 ext. 1/B in favour of Bibi Kitaban and Md. Shabir. The plaintiff is the heir of said Mostt. Kitaban who purchased the shares of both the co-sharer by registered sale deed dated 19.01.1989 by ext. 1/A. In the suit property measuring 14 dhur Bibi Rashidan had 1/8th share, Md. Ibrahim, Md. Suleman and Ahmad Hussain had 2/8th share each and Bibi Khodaija had 1/8 share. The plaintiff had already purchased the shares of the defendants total to the extent of half in the suit property from Bibi Rashidan and the share of Khodaija, Ibrahim and Ahmad Hussain and thus the plaintiff became the owner and in possession of 12 dhurs and the remaining 1 dhur is in joint possession with the defendant No.1 and 2.

(3.) The defendant No.7 appellant filed contesting written statement alleging that the plaintiff had got no unity of title and unity of possession in the suit property. The main defence of the defendant is that Mostt. Rashidan was the owner of property who sold the entire suit land by registered sale deed dated 15.5.1957 ext.'C' to Mostt. Rahima Khatoon. Mostt. Rahima Khatoon sold the entire land by registered sale deed dated 21.08.1967, i.e., ext. C/2 to Ahmad Hussain and Ahmad Hussain sold to defendant No.7 by registered sale deed dated 25.08.1967, ext. 'C'. After selling the property, Ahmad Hussain remained in possession of the suit house as tenant. He lost the eviction suit No.386 of 1969 up to the High Court and the defendant No.7 has filed execution case No.13 of 1976 for obtaining delivery of possession of the suit property. The sale deed of the year 1948 executed by Bibi Rashidan is forged, fabricated document.