AMIN AHMAD Vs. SAIKINA KHATOON

JUDGEMENT

(1.) THIS appeal has been preferred under Section 100 of the Code of Civil Procedure against the judgment and decree dated 18.5.1991 passed by the then IInd Additional Judicial Commissioner, Ranchi, in Title Appeal No. 42 of 1989 confirming the judgment and decree dated 29.4.1989 passed by the then VIth Additional Subordinate Judge, Ranchi, in Title Suit No. 134 of 1982 (343/87).

(2.) THE respondent as plaintiff filed the abovementioned suit for specific performance of contract dated 29.9.1980 in respect of 25 Kathas of land appertaining to Plot No. 234, Khata No. 55 of Village Bariatu within the district of Ranchi. The details of the suit land have been given in the foot of the plaint itself.

(3.) ORIGINALLY there were nine defendants only. Defendant No. 1 (Syed Abdul Halim) and defendant No. 2 (Syed Abdul Alim) are the two brothers being sons of Abdul Hussain. The defendants No. 3 to 7 are the sons of Syed Abdul Halim i.e. defendant No. 1 while defendants No. 8 and 9 are the daughters of defendant No. 2, Syed Abdul Alim. Notices on the defendants could not be served through the process of the Court and then substituted service was ordered by publication in the English daily 'The Statesman' published from Calcutta as the addresses of the defendants were of 4, Ustagar lane, Calcutta14 except defendant No. 2 who was residing at Bariatu, Police Station Bariatu, District Ranchi. The defendant No. 2 (Syed Abdul Alim) appeared by filing vakalatnama and in the vakalatnama it could be found that by different hand after the signature of Syed Abdul Alim (defendant No. 2) it was mentioned that he was appearing as attorney of the other defendants but written statement was not filed. Then the defendant No. 2 was said to be died during the pendency of the suit in the year 1983 and as he was bachelor, other defendants were asked to disclose the names of heirs of defendant No. 2. It was mentioned in the petition filed by the plaintiff that Syed Abdul Alim died leaving behind his elder brother Syed Abul Halim, defendant No. 1, nephews and nices i.e. defendants No. 3 to 9. As disclosure being made from the side of the defendants, the name of Syed Abdul Alim was struck off and in his place, defendants No. 2(a) to 2(d) were substituted vide order dated 23.5.1984. The defendant No. 2(d) Amatul Khadaija, happens to be the sister of defendants No. 1 and 2 and defendants No. 2(a) to 2(c) are the sons and daughter of defendant No. 2(d) through her husband Tufail Ahmad. The defendant No. 2(a) then only filed written statement denying all the allegations made in the plaint. It was denied that the defendant No. 2 was holding power of attorney for and on behalf of the defendants. Any agreement made by defendant No. 2 for sale of the land has also been denied and it was stated that if any such agreement was made by the defendant No. 2 that can be bound in respect of the share of defendant No. 2 alone. All the actions as stated in the plaint regarding notice being given to defendant No. 2 from the side of the lawyer of the plaintiff have also been denied. It was also stated that the agreement as alleged and the receipt thereof were only forged, fabricated and any such parole agreement, if made, suffers from uncertainty of land and as such void.