SYED MOHD ABDUS SAMAD Vs. BIBI ANWARI KHATOON

JUDGEMENT

(1.) This is defendant's Second Appeal preferred under Section 100 of the Code of Civil Procedure. 1908 (for short "the Code") arising out of a suit filed by the plaintiffs-respondents for a declaration that the sale deed dated 14-2-1966 alleged to have been executed by Md. Hasan alias Ajju in favour of the defendant-appellant was fraudulent and fictitious, and for a declaration that the compulsory registration of the said sale deed was illegal, and that the order passed under Section 145/146 of the Code of Criminal Procedure, 1973 is not binding on the plaintiffs-respondents and for declaration of title.

(2.) The plaintiffs-respondents filed Title Suit No. 45 of 1975 on 10 7-1975 for the aforesaid reliefs. This plaint was ordered to be returned on 28-8-1978 Against that order of return of plaint the plaintiffs-respondents preferred an appeal and the same dismissed on 4-4-1980. The plaint was taken back from the file on 20-8-1980 and was filed in the Court of the Subordinate Judge and thereafter it was numbered as Title Suit No 283 of 1980 There was no explanation offered by the plaintiffs-respondents as to why the plaint was taken back on 20-8-1980, when the appeal was dismissed on 4-4-1980.

(3.) The averments in the suit were that one Noor Hasan Mian had two sons, Amir Hasan alias Gunga and Md Hasan alias Ajju. Plaintiff No. 1 Bibi Anwari Khatoon is the'wife of Amir Hasan and plaintiff No. 2 S. Kalimuddin and plaintiff No. 3 Ainul Haque are the sons of Amir Hasan and plaintiff No. 4 Hamida Khatoon and plaintiff No. 5 Jamila Khatoon are the daughters of Amir Hassan Amir Hassan died about three years back and he was a deaf and dumb person. Md Hassan alias Ajju had married one Most. Rakiba who predeceased. After the death of Most. Rakiba, Md. Hassan alias Ajju remarried Most Bibi Quraisba (defendant No. 2), who also had no issue from Md Hassan. Thereafter she was divorsed by him and she remarried one AH Hassan, from whom a son Md Kamal was born, Md. Hassan alias Ajju had taken a loan of Rs. 800/- from plaintiff No. 1 and in lieu thereof he surrendered his right, title and interest in the property to the plaintiff No. 1 and accordingly entire house came in possession of Amir Hassan and his wife (plaintiff No. 1). Md. Abdus Samad (defendant-appellant) was a very clever person and he obtained a sale deed dated 14-2-1966, which was forged. He filed an application under Section 36 of the Indian Registration Act and without knowledge or service of notice on the plaintiffs, obtained an order of refusal on 11-5-1966 from the Sub-Registrar and thereafter an appeal was filed under Section 73 of the Indian Registration Act (compendiously "the Act") by the defendant-appellant and a collusive decree and order was obtained. After the death of Md. Hassan alias Ajju, his heirs executed a false and fabricated sale deed in favour of the defendant-appellant, but this was illegal. As the defendant-appellant has obtained the sale deed in his favour and possession was delivered to him in the proceedings under Section 145/146 Cr. P.C., hence the present suit was filed.