AFROZ JAHAN Vs. SYED NAJMUL HODA

JUDGEMENT

(1.) THE plaintiff -appellant has filed this Second Appeal against the judgment and decree dated 19.01.2001 passed by the learned 7th Additional District Judge, Munger in Title Appeal No.19 of 1999/01 of 2000 whereby the learned lower appellate court allowed the appeal and reversed the judgment and decree of the trial court dated 17.09.1999 passed by the learned Subordinate Judge -VI, Munger in Title Suit No.240 of 1987.

(2.) THE plaintiff -appellant filed the aforesaid suit for declaration of title and confirmation of possession and in the alternative for recovery of possession over the suit property appertaining to Tauzi No.461, Ward no.C No.13, Sheet No.20, Municipal Plot No.3448 alleging that Plot No.3448 (ka), (kha) and (gha) Holding No.437 total area 191 decimal was recorded in the name of Sk. Sultan Hassan and others in the Municipal Survey Khesra dated 10.07.1917 and the Zamindar was Babu Damodar Prasad. There was partition between Sk. Sultan Hassan, Sk. Munshi Mian and Sk. Rahmat Ali to the extent of 1/3rd each in the year 1922. Ultimately the entire suit property came in possession of Sk. Munshi Mian, who orally gifted the property to his wife Bibi Rafiqan on 10 Ramjan 1932. After accepting the gift, she came in possession and on her death her two daughters Madina Khatoon and Zarina Khatoon came in possession. Madina Khatoon also died issueless and her share devolved upon her sister Zarina Khatoon and thereafter on her death the plaintiffs being the daughter and husband of Zarina Khatoon inherited the property and are in possession of the same. The defendant 2nd party having no right, title and interest transferred the suit property to defendant 1st party by registered sale deed dated 26.08.1985. The transferee did not acquire any right, title and interest nor he ever came in possession. For the first time in March, 1987 the plaintiff came to know about the aforesaid sale deed and obtained a certified copy thereof and filed the suit.

(3.) THE trial court decided all the issues in favour of the plaintiff recording the finding that the plaintiff inherited the property and came in possession of the entire property. Accordingly, the plaintiff's suit was decreed. The defendant filed Title Appeal before the lower appellate court. The lower appellate court recorded the finding that the plaintiff failed to prove the origin of title to the suit property because the Municipal Survey Record is inadmissible in evidence and set aside the judgment of the trial court.