ABDUL KARIM AND ORS. Vs. ABDUL RAHMAN

JUDGEMENT

(1.) THE instant appeal is directed against the judgment and decree dated 31st July, 1993, decree signed and sealed on 21.08.1993 passed in Title Suit No. 15 of 1989 by learned Sub -Judge Ist, Supaul in the matter of Md. Abdul Rahman Plaintiff v. Md. Abdul Karim and others defendants. The defendants are the appellants and the plaintiff is the respondent here.

(2.) THE respondent/plaintiff has filed the suit for declaring sale deed No. 2631 dated 04.08.1986 executed in favour of defendant Ist Party as forged and illegal as well as for the cost of the suit.

(3.) THE defendant No. 1 has filed written statement but it has neither been signed by defendant No. 1 nor by his learned counsel and they signed only on verification. The defendant No. 1 has pleaded that suit is not maintainable, the plaintiff has got no valid cause of action. The suit is barred by law of limitation, estoppel and acquiescence, non -joinder and mis -joinder of the parties. Bibi Gulesa Khatoon is the necessary party but she has not been made party in the suit. According to the defendant, the mother of the plaintiff has not acquired those lands rather the defendant No. 1 has purchased those lands in the name of Akhtarun Nissa and further he acquired 2 Khattas 1 Dhur of land of Ward No. 9 through settlement which was the land of his share of his brother Abdul Kadir's Jamindari and Parwana was taken in the name of his wife. The date of birth of the plaintiff is 25.01.1960. It is denied that on the Chhatiari of the plaintiff, Abdul Kadir executed a deed of gift in respect of 10 Dhurs of land on 16.08.1967 and the plaintiff was admitted in the school where he managed to write the date of birth of the plaintiff as 04.01.1968. Aktharun Nissa never died in the year 1970 but she died before. This defendant has denied that he was separated from his brother Abdul Kadir on 09.09.1970 and the partition had taken place between the brothers rather they were separated in mess and business in the year 1960 and only land of Basdih was in jointness which was orally partitioned on 02.02.1970. The plaintiff was married on 19.06.1982 not in the year 1983. It is false to say that on assurance that he would take house loan for construction of the house got the sale deed executed from the plaintiff on 14.03.1985. As a matter of fact the plaintiff on his own willingness executed the sale deed in the name of defendant No. 1 along with step mother after receiving the consideration amount of Rs. 2000/ - and the defendant No. 1 acquired title and possession and further this defendant sold 6 Katthas and 13 Dhurs of land to Jagdeo Yadav and executed deed of gift in respect of 2 khattas an 1 Dhur of land on 20.05.1986 in favour of Gulesa Khatoon. The deed of cancellation executed by plaintiff is inoperative and objection petition dated 24.12.1986 is not binding upon the defendant. The plaintiff was never assaulted by defendant No. 1 nor he managed the plaintiff to divorce Gulesa Khatoon rather the plaintiff himself is a mischievous man and assaulted his wife which was objected by his father -in -law and brother -in -law and then, he divorced his wife in writing and then, Gulesa Khatoon filed a case No. 36/85 -86 falsely which was compromised and thereafter, this defendant obtained the sale deed executed by the plaintiff from the office of Sub -Registrar. In maintenance Case filed by Gulesa Khatoon also compromise was done and defendant No. 1 executed a deed of gift in her favour in respect of 2 Khattas and 1 Dhur of land within the knowledge of the plaintiff. In some portion of Basdih land of defendant, the plaintiff has constructed Phush house and due to false allegation made by plaintiff regarding his assault, the defendant No. 1 was arrested by the Police and kept in Police Hazat. This defendant has never cheated the plaintiff nor got the sale deed executed fraudulently. The sale deed is not illegal and forged, nominal and under valuation but the same is legal with reasonable consideration. The plaintiff has no right, title and possession. This defendant has got right, title and possession on the basis of the said sale deed and there is house and garden etc. Jamabandi is standing in the name of plaintiff and defendant No. 2 but now the names of plaintiff and defendant No. 2 have been cancelled and correction slip has been made in the name of defendant No. 1. Holding Number in Supaul Municipality is also in the name of defendant No. 1. On the false allegation proceeding under Section 107 Cr.P.C. was started but was dropped and the report of the S.D.O., Supaul is not binding upon defendant No. 1. The plaintiff was not minor and the valuation was not worth Rs. 1,00,000/ -. At the time of execution of the sale deed the plaintiff was major and he was working in the office of sub -Registrar as deed writer and has scribed many sale deeds in the year 1983 -84. After attaining majority the plaintiff and defendant No. 2 have sold the land to the defendant No. 1 after receiving the consideration amount and since thereafter, the defendant No. 1 is in possession as rightful owner thereon but due to enmity the plaintiff has brought this false case. The plaintiff and his wife Gulesa Khatoon sold 2 Khattas and 1 Dhur of land which she received on gift by this defendant to Akhtar Alam on 03.07.1987 and the recital of the sale deed is binding upon the plaintiff. Accordingly, it has been prayed that the suit of the plaintiff be dismissed.