GHULAM ZUHRA Vs. HABLA BEGUM

JUDGEMENT

(1.) This judgment will dispose of two Letters Patent Appeals, one preferred by the plaintiff and the other by the defendants directed against the same judgment and decree dated 3rd December, 1982, passed by the learned single Judge, upsetting the judgment and decree of the learned trial Court.

(2.) We will first take up the Letters Patent Appeal preferred by the plaintiff which arises in the following circumstances:- Two persons namely, Abdul Gani Shah and his wife Jalla Bano by virtue of two sale deeds purchased the suit house from its owner Lala Shiv Dass in the year 2007 SV. This sale was pre-empted by Gulam Zuhra, the appellant herein, by filing two suits, and decrees were passed therein in her favour in the year 1957, and she was also put in possession of the suit house in pursuance of the execution of the said decrees. Thereafter, these two vendees purchased another house from its owner Lala Ramcharan Dass. This sale was also sought to be pre-empted by the appellant, for which she laid a suit, but this suit was later on withdrawn by her. Abdul Gani Shah and Jallo Bano later on sold this house to one Mohd. Sultan Lassu. The appellant's case is that she served a notice on Mohd. Sultan Lassu on 7th Jan., 1961 through her Counsel, calling upon him to execute a sale deed in her favour in respect of the house purchased by him within a week from the date of the notice, failing which she would file a suit for pre-emption against him. Mohd Sultan Lassu not having agreed to execute the sale deed, the respondent Hafiz Ullah brought the necessary stamps and the petition writer over to the house of the appellant and got two documents signed by her on 24th Jan.,1961 by making a false representation to her that one of these documents was a plaint in the proposed suit for pre-emption, and the other a power of attorney in his favour on behalf of the plaintiff for prosecuting in the Court, the proposed suit, on her behalf. These documents were not in fact the plaint and the power of attorney, but one of them, according to her, was a sale deed in respect of half portion of the suit house on her behalf in favour of the respondent, and the other was a deed of agreement, restraining her from alienating the other half of the house to any person other than the respondent. She further goes on to state that she came to know about this fraud for the first time, when she received a summons from the Sub Registrar, Srinagar, requiring her to admit or deny the execution of the aforesaid sale deed. She accordingly challenged the execution of the aforesaid two documents on the grounds: firstly, that these were got executed by fraud, and mis- representation and secondly, that these were neither supported by any consideration nor was the alleged consideration lawful. In this suit she also claims a decree for future mesne profits.

(3.) The suit was resisted by the respondent on the ground that none of the two documents was vitiated by any fraud or misrepresentation, rather the suit resulting in the pre-emption decree had been filed by the appellant for his benefit because he himself could not have pre-empted the sale, that the suit for declaration simpliciter was not maintainable, that the suit was not properly valued for the purposes of court-fee, that it did not disclose any cause of action and that no decree for mesne profit could be claimed in the suit without specifying the amount of mesne profit and paying adequate court-fee on it.