SALAUDDIN Vs. S.K. MOHMOOD

JUDGEMENT

(1.) This second appeal is against the judgment and decree of learned Additional District Judge. F.T.C., Sahibganj passed in Title Appeal No. 2/99 whereby learned lower Appellate Court has dismissed the appeal and affirmed the finding of learned Trial Court holding that the Plaintiffs failed to prove that Bibi Rahiman and Bibi Kulsum had gifted their undivided shares of the suit property in favor of the Plaintiffs.

(2.) The Plaintiffs had filed title suit in the Court of the Subordinate Judge. Sahibganj praying for a decree declaring that the sale deed executed in favor of the Defendants with respect to the suit properly, described in Schedule 'B' of the plaint, is fictitious and further for a decree for eviction of the Defendant-first party from the suit premises.

(3.) The case of the Plaintiffs was that the suit property is jointly recorded in the names of Bibi Rahiman (widow of Md. Ishaque Hussain) and Bibi Kulsum (widow of Md. Magherat Hussain) in Register-II maintained by the Government The tenants Bibi Rahiman and Bibi Kulsum were the wives of the full brothers of Nurul Hoda, son of Kallu Mian. The Plaintiffs and the Defendant-second party are the heirs of the recorded tenant Mural Hoda. The Defendants-third party are other heirs and the Defendant-first party is an ouster having no concern with the family of the recoded tenants. The original Plaintiff (Shahjahan Begum) was the daughter of the recorded tenant Nural Hoda. Her husband died during the life time of her father. She had been living with her father along with her children in the suit house. Nural Hoda died in the year 1961 leaving behind the Plaintiff and the Defendants -second party as his heirs and they inherited their interest in the suit property after the death of Nurul Hoda. The said Bibi Rahiman and Bibi Kulsum, who were leaving elsewhere with their family members, had come to Sahibganj after the death of the Plaintiffs father (Nurul Hoda) and feeling pity on the destitute and helpless condition of the Plaintiff (Shahjahan Begum), they had gifted their undivided 2/3 share of the suit property in favor of the Plaintiffs in presence of their relatives. The Plaintiffs had accepted the said gift and they had been coming in possession of the suit property. Subsequently, in the year 1973, a portion of the suit property was let out to the Defendant-first party on a monthly rent of Rs. 35/-. The said Defendant paid rent till November 1978 and thereafter defaulted in payment of rent. The said Defendant claimed that he had purchased the suit property from the Defendants-third party and Mazhar Hussain, one of the grandsons of Bibi Rahiman on 20.12.78. According to the Plaintiff, the alleged deed was fictitious and was obtained by false impersonation. The Defendants third party had no saleable interest in the suit property, as their grandmother Bibi Kulsum had already transferred her 1/3 interest in favor of the original Plaintiff by oral gift. The property is Khas Mahal and the same is not transferable without prior permission of the Deputy Commissioner.