BIBI RIAJAN KHATOON Vs. SADRUL ALAM

JUDGEMENT

(1.) This Second Appeal by the plaintiffs has been preferred under Section 100 of the Code of Civil Procedure, 1908 (compendiously the 'Code') against the decree and judgment of the 3rd Additional District Judge, Purnia, setting aside the decree of the Subordinate Judge in a title suit brought by them for declaration that gift deed dated 25-3-1972 executed by Haji Zakiruddin the original Plaintiff No. 1 in favour of the defendants was a sham and collusive transaction, and it did not create any title in favour of the defendants and the plaintiffs have got title over the suit land to the extent of -/8/10 paise.

(2.) Shorn of details the case of the plaintiffs-appellants is that the suit property having an area of 3.49 acres of land mentioned in Schedule A of the Plaint belongs to original Plaintiff No. 1 Haji Zakiruddin and was recorded in his name. Plaintiff Nos. 2 and 3 are daughters of Haji Zakiruddin. The third daughter named Bibi Aliman had pre-deceased Hazi Zakiruddin, Plaintiff No. 1. Hazi Zakiruddin and defendants are descendants of common ancestors Lapatu Mian who had two wives and through his first wife, he has two sons, namely, Late Hazi Zakiruddin and Ajmat Ali. The latter Ajmat Ali died leaving behind a son late Masraf Ali and the defendants are the sons of Masaraf Ali. Plaintiff- Hazi Zakiruddin had share only to the extent of 20 bighas of land and on wrong advice of the counsel Hazi Zakiruddin executed the collusive registered deed of gift dated 25-31972 in favour of the defendants. But later on he cancelled the registered deed of gift by executing a deed dated 25th July, 1972. In this way the defendants have no right or title, but they started threatening the plaintiff. The plaintiffs accordingly filed a suit for declaration that the said deed of gift was sham, collusive and also for declaration of title over the suit land.

(3.) The defendants contested the suit denying the plaintiffs' allegations. It was stated that the suit as filed was not maintainable, the plaintiff had got no cause of action for the suit against the defendants, the suit was barred by the law of limitation, principles of estoppel waiver, acquiescence as well as defect of parties. The original deed of gift executed by the plaintiff on 25-3-1972 was valid and the said deed of gift was executed by Hazi Zakiruddin consulting his daughters in favour of the defendants as they were his grand-sons and they had entered possession over the lands in dispute. They had no knowledge of cancellation of the deed of gift and the suit was liable to be dismissed.