SHAHIDA BEGUM Vs. MD YAQUB

JUDGEMENT

(1.) Heard the parties.

(2.) The appellants who were the defendants in the trial court and respondents in the lower appellate court have preferred this Second Appeal being aggrieved by the judgment and decree dated 24.05.2007 passed by the 2nd Additional Sessions (sic District) Judge, Jamshedpur, in Title Appeal No.41 of 2003 whereby and where under the learned lower appellate court set aside the judgment and decree passed by the trial court in Title Suit No.83 of 1998 and declared that the plaintiffs are the owners of the property described in Schedule 'A' of the plaint to the extent of their 7/10th shares of the suit property and also declared that the defendants No.1 to 3 acquired no right in the suit property beyond their share to the extent of 3/10th share in the suit property and that the sale deed executed by the defendant Nos.1 to 3 in favour of the defendant Nos.4 and 5 being beyond the extent of their share is void, illegal and inoperative and as such the plaintiffs are entitled for recovery of Khas possession in Schedule 'A' property including Schedule 'B' property to the extent of their 7/10th share and the defendants No. 4 and 5 are the monthly tenants of the plaintiffs. The defendants were also made liable to pay the arrears of rents as claimed in Schedule 'C' of the plaint by the plaintiffs.

(3.) The case of the plaintiffs in brief is that the Schedule 'A' land of the plaint measuring 20 ft. x 40 ft. was allotted to Sk. Ibrahim. Sk. Ibrahim had two wives. Zannatun Nisha was his first wife and Julekha Begam was his second wife. Sk. Ibrahim had three daughters through his first wife Zannatun Nisha and two sons and three daughters through his second wife Julekha Begam. The plaintiffs are the descendants of Sk. Ibrahim through his second wife and the defendant Nos. 1 to 3 are the descendants of Sk. Ibrahim through his first wife. Schedule 'B' property of the plaint is a portion of the Schedule 'A' property of the plaint and the defendant Nos. 1 to 3 have executed the sale deed in respect of the Schedule 'B' property of the plaint, in favour of the defendant No.4 vide Sale Deed No.625 executed on 17.02.1997 for a consideration of Rs. 80,000/-. It was asserted by the plaintiffs that the said sale deed executed by the defendant Nos.1 to 3 was a fraudulent one and in the recital of the said sale deed, false averment was made by the defendant Nos.1 to 3 that there was an oral partition of the property belonging to late Sk. Ibrahim and in the said partition, the Schedule 'B' property was allotted to the defendant Nos.1 to 3, though in fact there was no partition of the properties of Sk. Ibrahim. It is the further case of the plaintiffs that Sk. Ibrahim died on 24.07.1964, his first wife died on 08.11.1943 and his second wife died on 105.1995. Though initially in the plaint, the plaintiffs made the pleadings that the defendant Nos.1 to 3 were not having any right, title, interest whatsoever over the Schedule 'A' property of the plaint but later on by way of amendments of the plaint, the plaintiffs pleaded that the plaintiffs are entitled to 5/6th share of Schedule 'A' property of the plaint. It is the case of the plaintiffs that the defendant No.5 was inducted as a monthly tenant by their mother Julekha Begam in respect of Schedule 'B' property of the plaint and defendant No.5 used to pay rent to Julekha Begam regularly and after the death of Julekha Begam, the defendant No.5 paid rent to the plaintiffs till the month of October 1995. But thereafter, the defendant No.5 stopped paying any rent to the plaintiffs in respect of the Schedule 'B' premises of the plaint. The plaintiffs thereafter issued notice to the defendant no. 5 through their lawyer requesting the defendant No.5 to vacate the suit Schedule 'B' premises on or before 31.01997 and to pay the arrears of rent. In his reply the defendant No.5 denied ever being inducted as monthly tenant in the Schedule 'B' property of the plaint and also asserted that the said property belonged to Zannatun Nisha and her daughters being the defendant Nos.1 to 3 of the suit and the defendant Nos.1 to 3 have transferred the ownership of the said premises in favour of the defendant No.4 Nivedita Singh.