SULTAN AHMAD KHAN Vs. SIRAJUL HAQUE

JUDGEMENT

(1.) This is an appeal by Sultan Ahmad Khan, minor, through his next friend Mohammad Raza, and arises out of a suit brought by him for the recovery of possession of certain immovable properties mentioned at the foot of the plaint by avoidance of a document dated 23 December 1927. It is conceded that if this document is binding on the plaintiff his suit cannot succeed. The transactions anterior to the aforesaid document are mentioned in the plaint and the disputes that arose in connexion with those anterior transactions are mentioned in the deed itself, but in order to make our judgment intelligible it will be necessary to state them in some detail. The suit was dismissed by the trial Court in a very perfunctory judgment which hardly does any justice to the complicated questions of fact and law that arise in the case, and hence the present appeal which has been argued ably by learned Counsel appearing for the parties. At the very outset it would be convenient to set forth the pedigree of the family which plays a prominent part in this litigation.

(2.) After the death of Karim Khan, there was a suit for partition and rendition of account between the two brothers Ali Bakhsh and Maula Bakhsh which came up to the High Court in which the shares were separated and a decree for Rs. 15,000 was passed in favour of Ali Bakhsh against Maula Bakhsh. In execution of this decree, Ali Bakhsh got a half share of Maula Bakhsh put up to auction and purchased it himself in the years 1907, 1908 and 1909. It might be mentioned here that village Lado did not stand in the name of Maula Bakhsh and that of his wife Mt. Daulat Bibi, but the case of Ali Bakhsh was that that property also belonged to Maula Bakhsh and the sale certificate in respect to that property was obtained on 1 March 1912 (p. 87), and the dakhaldehani was obtained on 22nd March 1912 (p. 89). There is one other sale certificate at p. 71 of villages Sharfuddin patti and Megapur, dated 11 August 1910. The dakhaldehani in respect of Megapur, Sharfuddin patti and Ballia Kalyanpur, dated 3 October 1910, is also on the record at p. 73. It appears that there was some delay in applying for delivery of possession as regards certain items of property, and therefore Maula Bakhsh applied on 18 November 1910 that the Court may order the amin not to effect delivery of possession over certain portions of property in Ballia Kalyanpur, Megapur and Sharfuddin patti. His objections were allowed.

(3.) On 22 August, 1910, presumably while the proceedings regarding redelivery of possession were in contemplation, Maula Bakhsh executed a sale deed of certain isolated plots in favour of one Mirza Taja Beg. Ali Bakhsh died in 1910. Azimullah, the son of Ali Bakhsh, also died some time after, and then two suits were instituted by the sons of Azimullah against Maula Bakhsh. In Suit No. 31 of 1912 possession was sought of the properties over which Ali Bakhsh had failed to obtain possession on account of the delay in applying for delivery of possession. Suit No. 32 of 1912 related to the property covered by the sale deed of 22nd August 1910 executed by Maula Bakhsh in favour of Taju Beg in which it was said that the sale deed was fictitious. Both these suits were pending in the Court of the same Subordinate Judge. On 22 May, 1912 the parties entered into an agreement for reference to arbitration (p. 91). The agreement specifically referred to the properties in dispute in the two cases, but added that if in disposing of the case it might be found necessary to decide any other family matter also, which was not in issue in the case, the arbitrators had right and power to do that also. The matter was therefore referred to arbitration through the intervention of Court under Schedule 2, Civil P.C. The arbitrators delivered two distinct and separate awards. In Suit No. 31 of 1912 the award dated 29 July 1912 was a long one (p. 95) and divided the family properties among the various members. It also provided that the defendants should pay a sum of Rs. 2000 to the plaintiffs. On the same date another award (p. 101) was delivered in Suit No. 32 of 1912 which was to the effect that the sale deed executed in favour of Taju Beg was fictitious and without consideration and that accordingly the plaintiffs claim should be decreed. The second paragraph of this award, which was the cause of considerable trouble later, may be quoted. Let this be known that, in the award made by us, the arbitrators, in Suit No. 31 of 1918, the plaintiffs V/s. Maula Bakhsh and Ors. we the arbitrators, have awarded the property objected to, to the plaintiffs, but as this plaint is a separate one, a decree is passed, in favour of the plaintiffs, holding that the defendants have no concern (withthe property).