ATIULLAH Vs. BIBI SABRATUN

JUDGEMENT

(1.) This is an appeal by defendant No. 2. The claim of the parties is as follows:

(2.) The plaintiff-respondent No. 1 filed a partition title suit No. 31 of 1974 before the Munsif, Arrah, for a decree claiming 12 Annas 4 pie out of the House left behind by the mother of plaintiff and the defendants. The plaintiff's further case was that the suit House belonged to Bibi Haliman, mother of the plaintiff and defendants No. 1 to 3. and she purchased it by a sale deed dated 3. 12. 1942. During her life time Haliman sold 8 Annas share in the suit property to the plaintiff-respondent No. 1 by a sale deed dated 9.11.1971. The plaintiff-respondent No. 1 also, subsequently, purchased share of defendant No. 1 equivalent to 3 Annas 2 pie 8 Krant by a sale deed dated 21.7.1976, The plaintiff is also entitled to her own share equivalent to I Anna 7 pie 4 Krant. In all she is entitled to 12 Annas 9 pie 4 Krant. The defendant No. 2-appellant filed written statement making averments, inter alia, that the sale deed dated 9.11.1971 is a sham transaction and no consideration passed to Bibi Haliman. The plaintiff has never been in possession of the Scheduled House nor she has purchased the alleged 8 Annas share of Haliman. Defendant No. 1 and 3 are in collusion with the plaintiff. Bibi Haliman made an oral gift of 8 Annas share in suit House on 7.12.1971 in favour of defendant No. 2 in presence of witnesses which she accepted and was put in possession thereof and was also handed over the original sale deed dated 3.12.1942, Exhibit-D. Municipal receipts, Exhibit-B series and notices. Exhibit-C series, by the donor. Bibi Haliman also executed a stamped Ekrarnama dated 7.2.1972 admitting the factum of gift. The defendant-appellant claimed 8 Annas by gift 1 Anna 7 paise 8 Kraut. The defendant Nos. 1 and 3 did not file any written statement in the suit and on the contrary defendant Nos. 1 and 3 filed petition stating that their share may be allotted to the plaintiff. The Munsif decreed the suit by judgment dated 14.2.1977 holding that the sale deed dated 9.11.1971 was genuine and valid and the oral gift made in favour of defendant-appellant is also genuine and valid which is supported by not only the witnesses of the defendant No. 2 but also the rest of the witnesses of the parties and including defendant No. 1, Nasar Ahmad, as D.W.I except the plaintiff who is the witness denying oral gift. The trial court held that the plaintiff was entitled to 8 Annas share whereas the defendant No. 2-appellant was entitled to 8 Anna share in the suit property. The plaintiff preferred Title Appeal No. 50 of 1977 against the judgment and decree of the trial court which was allowed by the 6th Additional District Judge, Bhojpur, on 22.12.1980 without considering the merits of the case and material and evidence on record.

(3.) The points of law arising in this case are as follows: