Patna High Court
Makhan Lal Agrawal vs Bibi Zohra & Ors on 13 April, 2009
1APPEAL FROM ORIGINAL DECREE NO. 212 OF 1976
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Against the judgment and decree dated 31.01.1976, passed by Sri S.P.
Dwivedi, Sub-Judge, Aurangabad, in Title Suit No.87/165 of 1971/73
.......
1. Ashok Kumar Agarwal
2. Rajan Prasad Agarwal
3. Hiranya Garbh Agarwal
4. Pradeep Kumar Agarawal
5. Anil Kumar Agarwal
All sons of Makhan Lal Agarwala
6. Smt. Sushma Agarwal W/o Dwarika Das Agarwal
7. Smt. Sukhda Agarwal, w/o Hanuman Pd. Agarwal
8. Smt. Rani Agarwal, w/o Phagu Lal Agarwal
9. Kumari Rashmi Agarwal, D/o Makhan Lal Agarwala
10. Smt. Bimla Agarwal, w/o Makhan Lal Agarwal
All residents of Aurangabad, P.S. Aurangabad, District Aurangabad.
......Plaintiff-Appellants
versus
1. Bibi Zohra, daughter of Abdul Rahim alias Chand Mian and wife of
gulam Murtaza, resident of Muhalla Sarai Gaya at present at Muhalla
Sarai, P.S. Aurangabad, District Aurangabad.
2. Shrimati Anchi Devi, wife of Basant Ram, resident of MuhallaTekari,
village Shahpur, P.S. Aurangabad, District Aurangabad.
...Defendants-Respondents.
.....
For the Appellants : M/s Krishna Prasad Singh and
Bhanu Pratap Singh,Advocates.
For the Respondents: M/s L. N. Das and Sidhendra Narayan
Singh, Advocates.
PRESENT
THE HON'BLE MR. JUSTICE S.NAYER HUSSAIN
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S.N. Hussain,J. This appeal has been filed by the sole plaintiff-appellant against the judgment and decree dated 31.01.1976, by which the learned Subordinate Judge, Aurangabad, dismissed Title (Partition) Suit No. 87 of 1971 (165/1973), which was filed by the plaintiff-appellant.
2. The aforesaid suit was filed by the sole plaintiff-appellant Makhan Lal Agrawal against Bibi Zohra and Smt. Anchhi Devi (defendant-respondents no.1 -2- and 2, respectively) for the following reliefs with respect to the suit property, namely, a house with Sahan on four decimals of land of plots no. 877 (part) (0.3 decimals) and 884/1432 (part) (0.1 decimals) of Khata no.156, Touzi no. 4858, Thana No.560 within Aurangabad Police Station in the district of Gaya (old) with boundary given in Schedule 1 of the plaint :-
(a) Preliminary decree for partition of 3/8th share ( 6 annas out of 16 annas) be passed in favour of the plaintiff and a separate Takhta of 6 annas of the plaintiff of the property in suit be separately carved out by metes and bounds by appointment of a Commissioner and on its confirmation final decree be passed.
(b) Cost of suit be saddled on the defendants.
(c) Any other relief or reliefs be given to the plaintiff, for which the Court thinks him entitled to.
3. The claim of the plaintiff was that the suit properties along with several other properties belonged to Hassan Ali, who had five sons, namely, (i) Saheb Ali, (ii) Raja, (iii) Ghisa, (iv) Bahadur and (v) Doman and a daughter Mostt. Poli, out of whom Saheb Ali died leaving behind a son Khuda Buksh and hence after death of Hassan Ali they were recorded in the cadastral survey khatian and the share of Mostt. Poli in the suit properties was 2 annas. It was also claimed by the plaintiff that, thereafter, the said heirs partitioned the entire land of Hassan Ali, in which Mostt. Poli got 10 decimals of plot no.887, which, after her death, devolved upon her three sons Abdul Rahim alias Chand Mian, Abdul Aziz and Rasool Buksh, who also partitioned the said land among themselves, in which Abdul Rahim alias Chand Mian got 3 decimals of plot no.887 and subsequently he acquired the adjacent 1 decimal of plot no.884/1432 and amalgamated them. It is -3- also claimed by the plaintiff that after the death of Abdul Rahim alias Chand Mian, his said land devolved upon his widow Bibi Hamidan, his daughter Bibi Zohra and his two nephews Faiyaz Ahmad and Neyaz Ahmad, both sons of Abdul Aziz as per the provision of Mohammedan Law applicable to them. The plaintiff also averred that as per the provision of Mohammedan Law, the widow inherited 2 annas share and the sole daughter, in absence of any other issue, inherited 8 annas share and the remaining 6 annas was inherited by the said nephews, who sold it to the plaintiff by registered deed dated 17.07.1971(Ext. 1). Hence the plaintiff claimed partition of his said 6/16th share in the suit proper Genealogical Table
4. Defendant no.1 Bibi Zohra filed her written statement in the said suit admitting the said genealogy of the family and partition among the heirs of Hassan Ali, but she contradicted the subsequent claim of the plaintiff stating that Most. Poli was allotted 9 decimals of plot no.887, which was adjacent to 3 decimals of ghairmazarua land of plot no.886, which she amalgamated with her 9 decimals of land and hence in the survey khatian the said 3 decimals of plot no.886 was recorded in sole occupation of Most. Poli. But since the said portion of plot no.886 was ghairmazarua land and the landlord wanted to settle it to some other persons, he gave the Sahan strip of plot no.884/1432 to Most. Poli in lieu of aforesaid land -4- of plot no.886. It is also stated that after death of Most. Poli, her three sons partitioned the house with Sahan among themselves and the suit land fell into the share of Abdul Rahim alias Chand Mian, which is apparent from the registered deed of Bai mokassa (Ext. F). It is also claimed that Abdul Rahim alias Chand Mian gave the suit land to his wife Bibi Hamidan in lieu of dower debt by the said registered deed of Bai mokassa dated 29.10.1946 (Ext. F) and put her in possession of the same as absolute owner thereof and subsequently he died in the year 1950 and since then the said Bibi Hamidan, who was mother of defendant no.1, dealt with the property as absolute owner and paid rent and taxes etc. and after her death in 1965 the name of defendant no.1 was mutated in her place. It is also claimed by defendant no.1 that after transferring the suit land to his wife, the aforesaid Abdul Rahim alias Chand Mian had no interest left in the suit property and hence her brother or nephews would legally have no share, right, or interest in the suit properties, which had fully devolved upon Bibi Hamidan and after her death upon defendant no.1 and hence Faiyaz Ahmad and Neyaz Ahmad having no right, title or interest in the suit property, the sale-deed executed by them could not legally confer any right, title or interest in the plaintiff with respect to the suit property.
5. Defendant no.2 Anchhi Devi also filed her written statement in the suit claiming that the suit was not maintainable, was barred by principle of waiver, estoppel and acquiescence and was also barred by the provisions of Limitation Act and Specific Relief Act and the plaintiff had no cause of action in the suit land as he or his predecessor in interest had never been in possession of any portion of the suit land although several 12 years have passed and in the circumstances the plaintiff very cleverly filed this suit for declaration of his title and recovery of possession in the garb of a partition suit, without even paying any ad valorem court -5- fee. Defendant no.2 adopted the case of defendant no.1, but also added that defendant no.1 agreed to sell the suit premises to defendant no.2 and, accordingly, a registered agreement for sale dated 29.06.1971 (Ext. B) was executed by them, whereafter defendant no.1 sold the suit house to defendant no.2 by registered deed of sale dated 23.07.1971 (Ext. C) and transferred her right, title and interest in the suit property to defendant no.2, who, thereafter, has become the absolute owner in exclusive possession of the suit property.
6. Considering the respective pleadings of the parties, the learned trial court framed the following issues for deciding the title suit :-
(i) Is the suit as framed maintainable ?
(ii) Has the plaintiff got a cause of action for the suit ?
(iii) Is the suit barred by limitation ?
(iv)Is the suit barred by the principles of estoppel, waiver and acquiescence ?
(v) Is the suit barred under the provisions of section 34 of the Specific Relief Act and Order 2 Rule 2 of the C.P.C. ?
(vi) Have Faiyaz Ahmad and Neyaz Ahmad, the vendors of the plaintiff right, title and interest in the suit property ?
(vii) Did the plaintiff acquire any right, title and interest in the suit property by virtue of the sale deed Ext. 1 dated 17.07.1971 executed by Faiyaz Ahmad and Neyaz Ahmad ?
(viii) Had Abdul Rahim @ Chand Mian executed a valid
Bai mokassa (Ext.F) in favour of his wife Bibi Hamidan and
did she become absolute owner of the suit property by
virtue of the same ?
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(ix) To what relief or reliefs, if any, is the plaintiff entitled ?
7. After hearing the arguments of learned counsel for the parties and also after considering the pleadings and evidence of the respective parties, the learned Subordinate Judge, Aurangabad dismissed Title (Partition) Suit No.87 of 1971 on contest with cost by his judgment and decree dated 31.01.1976 after arriving at the following findings :-
(a) Issues no. 1,3 and 4 were not pressed and no defect was found in the frame of the suit. Suit was not barred by limitation. Suit was not barred by estoppel, waiver and acquiescence.
(b) It does not come out from the compromise petition, which accompanied the decree (Ext. O) of the earlier suit that Bai mokassa (Ext. F) was a farzi and sham transaction. Defendant no.1 was not required to mention in her written statement about the oral gift of her mother with respect to the suit house as she had already got absolute right over the suit house by way of the decree passed in the earlier suit bearing Title Suit No. 211 of 1965(Ext.4).
(c) An admission made in the previous suit is not a conclusive evidence against a party and the party can very well show that the admission was wrong.
(d) There is no evidence before the Court to believe the version of the plaintiff that the mortgage deeds (Exts E and E/2) were farzi and sham.
(e) Due to non-mention of Bai mokassa by D.Ws. 9,10 and 19, their evidence cannot be discarded as it might not have been in their knowledge and they specifically proved the possession of Chand -7- Mian, Bibi Hamidan and defendant no.1 as living in the house which they had seen.
(f) The deposition of P.W.11 with regard to deed of Bai mokassa (Ext.F) claiming it to have been executed as showy document by Chand Mian to save himself from Mahajan on the advise of the deed-writer is absolutely unreliable as he even failed to say as to who were the creditors of Chand Mian and how much loan had incurred and what was the extent of dower debt.
(h) The allegation of Hasuli having been got prepared in lieu of dower debt and the evidence of the goldsmith (P.W.11) cannot be relied upon as according to the statement of the goldsmith, it was prepared even before the marriage of Chand Mian when there was no occasion for any dower debt.
(i) Even the plaintiff (P.W.9) admitted that he was not present at the time of execution of the deed of Bai mokassa (Ext. F) and hence he cannot be said to have any personal knowledge about the same.
(j) The deed of Bai mokassa (Ext.F) is not a farzi and sham document rather it was a legal and valid document executed by Abdul Rahim alias Chand Mian in favour of his wife Bibi Hamidan, whereafter the said Bibi Hamidan became absolute owner of the suit property by the compromise decree (Ext. O and Ext.7).
Defendant no.1 Bibi Zohra became the absolute owner of the suit house and, thereafter, she had full right to sell the entire suit house to defendant no.2 Anchhi Devi and hence sale-deed (Ext.C) by defendant no.1 in favour of defendant no.2 with respect to the suit -8- land was a legal and valid document and the evidence fully proved that after her purchase defendant no.2 Anchhi Devi came in possession of the suit premises.
(k) Faiyaz Ahmad and Neyaz Ahmad had no title over the suit property and it was well proved by D.Ws. 9,10,15,16 and 19 that they never came in possession of the suit house nor they ever lived in the same in their own right, whereas, no chit of paper has been filed on behalf of the plaintiff to show his possession.
(l) It has come in evidence that Faiyaz Ahmad and Neyaz Ahmad reside at Aurangabad but they have not been examined by the plaintiff in support of his case although the plaintiff claims his title through them.
(m) Ext. 1 sale-deed dated 17.07.1971 executed by Faiyaz Ahmad and Neyaz Ahmad in favour of the plaintiff is not a valid document and it did not confer any right, title and interest in the plaintiff.
(n) The notices Ext. 2 series indicate that the plaintiff had also filed a petition in the Municipality for mutation of his name with respect to the suit house, but it was never allowed.
(o) Merely because the eastern portion of the house was locked at the time when the photograph was taken, it cannot be presumed that either it was vacant or it was in possession of the plaintiff.
(p) From the evidence of the parties, it does not come out that the plaintiff ever came in possession of the suit house.
(q) Faiyaz Ahmad and Neyaz Ahmad had no right, title and interest in the suit property and the plaintiff did not acquire any right, title and -9- interest in the same by virtue of the sale-deed dated 17.07.1971 Ext. 1 executed by Faiyaz Ahmad and Neyaz Ahmad in favour of the plaintiff.
(r) Abdul Rahim alias Chand Mian had executed a valid deed of Bai mokassa (Ext.F) in favour of his wife Bibi Hamidan and she became absolute owner of the suit property by virtue of that deed of Bai mokassa.
(s) Plaintiff has got no cause of action for the suit and he is not entitled to get any relief.
8. Against the aforesaid judgment and decree of the learned court below, the instant first appeal (F.A. No.212 of 1976) has been filed by the plaintiffs- appellants whose learned counsel raised the following arguments :
(i) The learned Subordinate Judge has failed to appreciate the crucial points which are involved in the suit and has applied wrong perspective in application of his mind.
(ii) In written statement filed by respondent no.1 in Partition Suit No. 211 of 1965 she had taken the plea that deed of Bai mokassa (Ext.
F) was merely a farzi transaction and it was brought only to avoid the payment of money to the creditors of Chand Mian and it was never acted upon but in this suit she has taken the plea that Bai mokassa (Ext.F) was a valid and genuine document, therefore, the onus lies upon her to prove that the said statement made in written statement in Partition Suit No. 211 of 1965 was not true and erroneous and was made without knowledge or due to ignorance. But in this case respondent no.1 has not been able to discharge the
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said onus. On the other hand she has stated in her evidence that she had taken this plea in order to defeat the claim of Mubarak Mian ( her maternal uncle).
(iii) Since earlier respondent no.1 had taken the plea that Bai mokassa was a farzi transaction therefore in this case she cannot take stand that the Bai mokassa was a valid document because principle of estoppel (section 115 of the Indian Evidence Act) will apply against her. Further in this suit sections 17,18, 21,32 and 58 of the Indian Evidence Act will also be applicable.
(iv) No document or any evidence was brought by the respondents to show how the suit property which was in the name of Bibi Hamidan went to Bibi Zohra because according to Mohammedan Law a daughter of a deceased mother cannot be the absolute owner of her entire property. In the judgment it has been stated that Bibi Zohra became absolute owner through compromise petition which is Ext. O and Ext. 7 but it is very strange that this stand was not taken at all by Bibi Zohra either in her written statement or in her evidence and this was not the case of the parties, and as such a third case was made out by the court below itself. .
(v) In the compromise petition filed in Partition suit No. 211 of 1965 no where it has been said that Bibi Zohra got absolute ownership through this compromise petition on the contrary it was stated that the defendants of that partition suit who were the sons of Mobarak Mian brother of Bibi Hamidan had neither title nor possession in the disputed house. So the compromise petition conclusively
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proves that the Bai Mokassa was a farzi transaction. Had it been genuine then Mobarak brother of Bibi Hamidan must have inherited half interest of Bibi Hamidan, because Bibi Hamidan died leaving behind only one daughter Bibi Zohra and one brother Mobarak Mian so the compromise petition was sufficient to make the Bai mokassa a farzi transaction.
(vi) Bibi Zohra in her written statement in Partition Suit No. 211 of 1965 (Ext.4) had pleaded the story of oral gift made in her favour by her mother Bibi Hamidan and on this plea she claimed absolute ownership and barred Mobarak Mian from inheriting half share of Bibi Hamidan. So this was very important point for Bibi Zohra, because her absolute ownership was based on this oral gift such important stand which was the basis of title of Bibi Zohra must have been taken in the written statement of the present suit, but it is surprising that no such stand was taken by her and she is conspicuously silent in her evidence too. It is very strange that the court opines in para no.24 of the judgment that Bibi Zohra was not required to mention the story of oral gift in the suit.
(vii) In paragraph no.13 of the written statement filed by Bibi Zohra it has been stated that Bibi Zohra inherited the suit property after death of her mother Bibi Hamidan so the story of oral gift as well as the finding of the court, that Bibi Zohra got absolute interest by compromise goes away. The deed of Bai mokassa was executed in the year 1946 and Chand Mian husband of Bibi Hamidan died in year 1950 in between this period the name of Bibi Hamidan was not
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entered either in Chawkidari Register or in the Municipality and Bai mokassa remained as a sham deed and only after death of Chand Mian when Bibi Hamidan inherited the house, her name was entered in Chowkidari Register and Municipality. In order to prove the effectiveness of Bai mokassa it was the duty of defendants to examine the attesting witnesses of the deed, but the defendants failed to produce any such attesting witness, whereas on the other hand the plaintiff examined P.W.12 Md.Hanif who was an attesting witness of the deed and he said that Bai mokassa was a farzi transaction.
(viii)Deed of sale was executed by Bibi Hamidan after the death of Chand Mian when Bibi Hamidan inherited 1/8th share out of the property of Chand Mian and the total area being 4 decimals, she rightly sold her share of ½ decimal only. Furthermore, the mortgagees of all the Rehan deeds are local persons residents of Aurangabad but none of them have been examined to prove the validity of its execution, its effectiveness or endorsement. None of the persons who endorsed the Rehan deeds were examined. No body was examined to prove the payment of the Rehan money or repayment by the mortgager to the mortgagees. The endorsement was apparently sham and bogus which appears from oral evidence. It is surprising that the person who allegedly made the endorsement was present in court but he was not examined as it will be clear from the evidence of Md. Sayeed D.W. 14. Moreover, the Rehan deeds were with respect to part of the suit property which is clear
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from evidence of P.W.8 at para 4.
(ix) Bibi Zohra herself admitted that after death of Chand Mian, Neyaz Ahmad and Faiyaz Ahmad were living in the house. (DW 15 at para
15). It was also admitted that Neyaz Ahmad and Faiyaz Ahmad were the sons of Bibi Zohra's paternal uncle and so it was natural that they might have gone in the camp of Bibi Zohra after receiving their consideration money from the plaintiff. Faiyaz Ahmad and Neyaz Ahmad were Rickshaw pullers and therefore it was very easy for the defendants to gain them over and for this a petition was filed in court on behalf of the plaintiff. Plaintiff had given their names in the list of witnesses which was admitted by the plaintiff in his deposition but they did not come which is clear from para 9 of the deposition of the plaintiff (P.W.9). Hence, the judgment and decree passed by the learned Subordinate Judge, Aurangabad are against the law and evidence as well as against the facts and circumstances of the case and as such this first appeal is fit to be allowed.
9. In support of their pleadings with respect to the aforesaid issues, the plaintiffs-appellants had produced altogether 12 witnesses, out of whom P.W.1 Md. Jahurul Haque was the deed writer of plaintiff's registered sale-deed dated 17.07.1971 (Ext.1); P.W.2 Md. Amin proved the notices from the Chairman of the Municipality (Exts.2- 2/B); P.W.3 Gulam Rasool was nephew of Bibi Hamidan, who supported the sale-deed (Ext.1); P.W.4 Nisar Ahmad Khan was the attesting witness of sale-deed dated 17.07.1971 (Ext. 1); P.W.5 Md. Zahoor proved the L.T.I. of defendant no.1 and signature of her Advocate on the vakalatnama (Ext.3) in the other case bearing P.S. No. 2311 of 1965 which was much earlier filed by
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Mobarak Mian brother of Hamidan against Zohra, which was compromised; P.W.6 Ali Manzar Khan proved the written statement of defendant no.2 (Ext.4) filed in the other case bearing P.S. No. 211 of 1965; P.W.7 Ramdas Gupta and P.W.8 Deo Nandan Sao stated about the share and possession of Faiyaz and Neyaz ; P.W.9 Makhan Lal Agrawal was the plaintiff himself, who supported his pleadings but could not bring his vendors to depose in the suit; P.W.10 Girish Chandra Karan was a photographer and proved Exts. 5 & 5/A i.e. photograph and negative of the house, P.W. 11 Mahadev Ram was a goldsmith and stated that Abdul Rahim alias Chand Mian had got a Hasuli worth Rs.500.00 made 30-35 years back for his wife Bibi Hamidan in lieu of dower debt; P.W.12 Md. Hanif claimed to have worked with the deed-writer, who prepared the deed of Bai mokassa (Ext.F) executed by Abdul Rahim alias Chand Mian in favour of his wife Bibi Hamidan, which he claimed to be showy only to save the property from Mahajan. The same witness is also attesting witness of Ext. F, the Bai mokassa deed, in which his signature is marked as Ext. 6.
10. The plaintiffs-appellants relied upon documents produced by them, namely, Ext. 1 sale deed dated 17.07.1971 executed by Faiyaz and Neyaz Ahmad in favour of the plaintiff; Exts.2, 2A and 2B notices from the Chairman of the Municipality from 1971 to 1975; Ext. 3 Vakalatnama of defendant no.1 in an earlier Partition Suit No.211 of 1965 filed by Mobarak; Ext.4 written statement of defendant no.1 in the aforesaid partition suit claiming Bai mokassa (Ext. F) to be sham and farzi and to avoid his father's creditors; Exts.5 and 5/A negative and positive of photograph of the house; Ext.6 signature of P.W.12 Md. Hanif over Bai mokassa; and Ext. 7 decree in Partition Suit No. 211 of 1965 on compromise between the parties dated 18.11.1968.
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11. In support of his above mentioned contentions and evidence, learned counsel for the appellant relied upon the following case laws :-
AIR 1960 SC Page 100 ( Narayan Bhagwantro Gosavi Balajiwale vs. Gopal Vinayak Gosavi & Ors.) A.I.R. 1966 Patna Page-110( Satyadeo Pandey vs. Smt. Chanderjoti Debi & Ors.) A.I.R. 1967 Supreme Court Page 341 ( Basant Singh vs. Janki Singh & Ors. ) A.I.R. 1956 Calcutta Page 477 ( Nanalal M. Verma & Co.
(Gunnies) Pvt. Ltd. Vs. G. Ambalal (Export)
12. The contentions and arguments of learned counsel for the plaintiff- appellant have been contested by the learned counsel for the respondents, who raised the following points :-
(i) From the pleading it is apparent in the garb of partition in fact the plaintiff has filed the present suit for declaration of title and possession and also for declaration that by virtue of his sale deed dated 17.07.1971 the plaintiff acquired title in the suit property. In this context paragraph 10 of the plaint is very important where the plaintiff has expressed full knowledge about the transfer of entire property by Bibi Zohra in favour of defendant no.2 Anchhi Devi.
Inspite of knowledge of this transfer the plaintiff has mischievously filed a suit for partition of share of his vendor. The plaintiff cannot have better right, title and interest than his vendor. When the share or the right, title or interest of his vendor is not admitted and the same is in serious dispute, the plaintiff cannot get preliminary decree of partition to the extent of share of his vendor.
(ii) The other important aspect in this case is that in spite of full knowledge of serious dispute with regard to right, title and interest
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of his vendors Faiyaz Ahmad and Neyaz Ahmad, the plaintiff has not made any attempt to bring his vendors on record in any manner. Faiyaz Ahmad and Neyaz Ahmad were not made party to this suit. They were not brought even as witness in favour of the plaintiff. The plaintiff has not produced even a chit by way of documentary evidence to show that after the death of Chand Mian (in 1950 as per paragraph 13 of the written statement of defendant no.1 Bibi Zohra ), his vendors inherited 6 annas share and became owner of the same. There is no mutation, no rent receipt in the name of Faiyaz Ahmad and Neyaz Ahmad to show even prima facie proof that they acquired any right, title or interest in any portion of Chand Mian's property during 20 or 21 years long period. The witnesses have stated that both Faiyaz Ahmad and Neyaz Ahmad are residing at Aurangabad itself where they are Rickshaw pullers but did not come to support the claim of their Vendee in the capacity of vendors. This in itself shows that the plaintiff has purchased mere bag of wind and nothing else. The vendors had no perfect right, title to transfer and, therefore, they did not come to support the plaintiff's claim.
(iii) So it is apparent that whole case rests upon the registered Bai mokassa (Ext. F ) in favour of Bibi Hamidan executed by Chand Mian in the year 1946. If that registered deed of Bai mokassa is valid and genuine document then Chand Mian had ceased to have any right, title and interest in the property during his life time that is in 1946 and hence after his death in 1950 his nephews could not
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acquire any right, title or interest even to the extent as claimed by plaintiff in capacity of vendee and the suit for partition filed by a vendee in absence of his vendors must fail. The defendants have produced both oral as well as documentary evidences in support of their case that Bai mokassa was a valid and genuine document in favour of Bbi Hamidan and after execution of that document Chand Mian ceased to have any right, title or interest in the properties whereas Bibi Hamidan became the absolute owner and she also acted as an absolute owner by selling some portion in 1953 (Ext. C/1) by executing three registered mortgage deeds of the years 1957 (Ext.C/1), 1960 (Ext.2) and 1965 (Ext. E-1). The defendants have also produced Municipal receipts in the name of Bibi Hamidan (Exts.A-3, A-4 and A-5), Municipal receipt in the name of Bibi Zohra (Ext.A-6) and Municipal receipt in the name of defendant no.2 after purchase (Exts.A and Ext.A-2). The defendants have also produced Ext. D series which are Chowkidari receipts in the name of Bibi Zohra and defendant no.2 after purchase.
(iv) The defendants have filed a decree of civil court passed in Title Suit No.211 of 1965 in favour of Bibi Zohra (Ext. O, Ext. 7) whereby her right, title and interest in the properties of Chand Mian and Bibi Hamidan was affirmed by competent civil court in the year 1968. The defendants have also filed report of Tax Collector, (Ext. G1) for mutation from Bibi Zohra to Anchhi Devi showing that earlier Bibi Zohra was rightful owner in possession and by the application
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for mutation dated 10.08.1971 ( Ext. J), the possession of Ambika Singh through registered sale deed of 1953 by Bibi Hamidan has been affirmed. Besides this the defendants have also filed Exts H and K reply notice by tenant of defendant, apart from the admitted registered sale deed executed by defendant no.1 in favour of defendant no.2 (Ext. C) and the agreement to sell between them ( Ext. B).
(v) As against the chain of documents of title and possession of Bibi Hamidan, Bibi Zohra and, thereafter, defendant no.2, the plaintiffs have not been able to show any document of title or possession of their vendor Faiyaz Ahmad and Neyaz Ahmad. The plaintiff has filed sale deed in question Ext. 1 executed by alleged Faiyaz Ahmad and Neyaz Ahmad, along with Ext. 2 series which are notices by executive officer of municipality where the plaintiffs applied for mutation after purchase. Apart from these, other documents filed by the plaintiffs concern the defendants and no document has been filed to show the right, title and possession of their vendor Faiyaz Ahmad and Neyaz Ahmad.
(vi) The plaintiff has filed Ext. 4, the written statement of Bibi Zohra in T.S. No.211 of 1965 in the said written statement Bibi Zohra (defendant no.1) took a stand that Bai Mokassa was a farzi transaction and a sham and showy document. The plaintiff has tried to establish his claim on the basis of this Ext.4 and has tried to take shelter of law of estoppel against Bibi Zohra while claiming
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her title through her mother. It may be noted that Title Suit No.211/1965 was filed by maternal uncle of Bibi Zohra in which she took the above stand at the advice of her lawyer at that time. This has been clarified by Bibi Zohra in her written statement and deposition in the present case. However, in Title Suit No. 211 of 1965 no such issue was framed nor the Bai mokassa was declared farzi. The suit ended in compromise and dismissed in favour of Bibi Zohra. Ext. 7 and Ext. O is the compromise decree along with the compromise petition. The learned trial court in paragraph 20 and onward has dealt with this issue and has rightly come to conclusion that in the earlier suit the stand of Bibi Zohra on Bai mokassa was her alternative prayer. Prior to the alternative remedy she all along claimed to be the owner after her mother on the basis of gift by mother. The learned trial court has rightly held that the stand of Bibi Zohra on Bai mokassa is not unequivocal admission. Her case was not based on her alternative plea as she specifically claimed absolute owner. The court below has also found that in compromise which is part of decree nowhere it is mentioned that Bai mokassa was farzi and sham transaction. The court has also observed that an admission made in previous suit is not a conclusive proof or evidence against a party. One is entitled to say that earlier admission was wrong.
(vii) It is also important to mention that the plaintiff's witnesses have also supported the case of the defendant inasmuch as some of them admitted the mortgage deed executed by Bibi Hamidan as absolute
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owner, others admitted execution of Bai mokassa by Chand Mian and some of them even proved the possession of the defendants, whereas, they miserably failed to prove the claim of the plaintiffs.
(viii) On the other hand, the defendants' witnesses fully proved the transfer of the suit land by Chand Mian in favour of his wife Bibi Hamidan vide Bai mokassa in question and also the exclusive possession of Bibi Hamidan as well as devolving of right, title and interest upon her daughter Bibi Zohra and also her exclusive possession as absolute owner of the suit property. It was also proved that subsequently defendant no.1 transferred the suit property to defendant no.2, who, thereafter, became owner of the suit property and continued possession thereof in the said capacity.
(ix) From the above discussion and on the basis of evidence brought on record by the parties, it is apparent that the plaintiffs have not been able to prove right, title and interest of their vendors to the extent of 6 annas in the properties of Chand Mian nor had been able to produce a single chit of documentary evidence. The plaintiffs have not been able to produce even their vendors as a witness to support their right, title and interest which was conveyed by them to the plaintiffs. Only on the basis of Ext. 4, a written statement of Bibi Zohra filed in another suit the plaintiff cannot claim law of estoppel against Bibi Zohra from claiming her 16 annas right, title and interest in the properties of Chand Mian. In these
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circumstances, the plaintiff's claim of partition of 6 annas in the suit property in the capacity of a vendee has rightly been rejected by the learned court below.
13. In support of the said contentions, the defendants-respondents relied upon the 19 witnesses produced by them, out of whom D.W.1 Kailash Mistri proved Exts. A to A/2, municipal receipts in the writing of the Tahsildar; D.W.2 Ishwar Prasad Singh, Advocate Clerk and scribe proving agreement for sale (Ext. B) and deed of sale dated 23.07.1971 (Ext. C); D.W.3 Abdul Rashid was Advocate Clerk and identifier of Ext. C proving payment of consideration money in presence of the Registrar and delivery of possession in favour of purchaser (defendant no.2); D.W.4 Ram Chandra Prasad, who was a Teacher, proved Choukidari receipts (Exts. D to D/10) and stated that earlier the house belonged to Bibi Hamidan, whereafter it was transferred to Bibi Zohra and, thereaftrer, to Anchhi Devi; D.W.5 Kailash Prasad stated about the possession of the defendants and also stated that the plaintiff or his vendors were never in possession; D.W.6 Gulam Anwar was an Advocate Clerk and scribe proving Ext. Y/1 mortgage deed executed by Bibi Hamidan in favour of Sk. Wali Mohammad in his presence; D.W.7 Munshi Lal was the attesting witness of Ext.C/1 registered sale-deed dated 28.09.1953 by Bibi Hamidan in favour of Ambika Narain Singh; D.W. 8 Zahoor Ali was attesting witness of Ext. E mortgage deed dated 07.05.1957 executed by Bibi Hamidan in favour of Sk. Wali Mohammad and was also attesting witness of Ext.I mortgage deed dated 06.07.1965 executed by Bibi Hamidan in favour of Bibi Fatima; D.W.9 Ram Charitra Narayan Singh and D.W.10 Ram Sewak Singh stated about the possession of Bibi Hamidan, thereafter of Bibi Zohra and, thereafter of Anchhi Devi and also stated that the plaintiff or his vendors were never in possession;
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D.W.11 Abdul Majid was the scribe of Ext. F the deed of Bai mokassa and proved its execution in his presence; D.W.12 Manish Kumar Sinha was an Advocate Commissioner who on the direction of the Court held local inspection and submitted his report dated 08.02.1974 (Ext. G) and supported it; D.W.13 Mahabir Mistri was the tenant of Anchhi Devi and proved Ext. H the reply of Anchhi Devi through her counsel to the Advocate notice; D.W.14 Md. Sayeed Ansari was an Advocate Clerk and proved the notes of Aminuddin (Exts. I & I/1) made in Exts. E and E/1; D.W.5 Bibi Zohra was defendant no.1 herself and supported her pleadings, D.W.16 Munga Lal Halwai proved his signature as witness on Ext. E/2 mortgage deed dated 14.01.1960 executed by Bibi Hamidan in favour of Badri Narayan Gupta; D.W.17 Ramchandra Singh, Tax Collector, Aurangabad Municipality proved municipal receipts (Exts. A series) in favour of defendant no.1 and defendant no.2 and also proved his report and his signature (Ext.G/1); D.W.18 Kashi Thakur tenant of Anchhi Devi supported her possession and D.W.19 Basant Ram was the husband of Anchhi Devi defendant no.2 and supported her pleadings.
14. Defendants-respondents relied upon the documents produced by them i.e. Exts. A series municipal receipts in the name of Bibi Hamidan, Bibi Zohra and Anchhi Devi; Ext. B registered deed of agreement for sale dated 28.06.1971 executed by defendant no.1 in favour of defendant no.2; Ext. C registered sale-deed dated 23.07.1971 executed by defendant no.1 in favour of defendant no.2 for the suit land; Ext. C/1 registered sale-deed dated 29.09.1953 executed by Bibi Hamidan in favour of Ambika Narain Singh, Ext. D Chawkidari Receipt in the name of Bibi Hamidan; Ext. E Rehan deed dated 07.05.1957 executed by Bibi Hamidan in favour of Sk. Wali Mohammad; Ext. E/1 Rehan deed dated 06.07.1965 executed by Bibi Hamidan in favour of Bibi Fatma; Ext. E/2
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Rehan deed dated 14.01.1960 executed by Bibi Hamidan in favour of Badri Narayan Gupta; Ext. F registered deed of Bai mokassa dated 29.10.1946 executed by Abdul Rahim alias Chand Mian in favour of his wife Bibi Hamidan; Ext. G report of the Pleader Commissioner dated 08.02.1974 given in title suit at the instance of the Court; Ext. G/1 report of the Tax Collector dated 16.08.1971 given to the Municipality; Ext. H signature of the tenant Mahabir Mistri (D.W.13) on his Mokhtarnama (Ext.L); Exts. I, I/1 and I/2 endorsements of Aminuddin on the Rehan deeds (Exts. E, E/1 and E/2); Ext. J petition of Anchhi Devi dated 10.08.1971 to the Chairman, Notified Area Committee for recording her name; Ext. K reply of the tenant (D.W.13) dated 18.01.1972 to the notice of the Advocate of defendant no.2; Ext. K/1 notice by the Advocate of defendant no.2 to D.W.13 dated 07.01.1972; Ext. L Mokharnama of D.W.13 in favour of the Advocate for filing of reply dated 18.01.1972; and Ext. O decree in the earlier Partition Suit No. 211/1965 dated 18.11.1968 passed on compromise between the parties.
15. In support of his aforesaid contentions, learned counsel for the respondents relied upon the following case laws :-
1970 P.L.J.R. 573 (Langa Manjhi & Ors. Vs. Jaba Majhain & Ors.) 1970 P.L.J.R. S.C. 721 (Bhaiya Ram Munda vs. Anirudh Patar & Ors.) A.I.R. 1970 S.C. 426 (Bennett Coleman & Co. Ltd. vs. Punya Priya Das Gupta )
16. After considering the respective claims of the parties and their pleadings raised in the learned court below as well as in the instant appeal and also after perusing the impugned judgment and decree of the learned court below, this Court has come to the conclusion that the following points are to be considered for the disposal of the instant first appeal :-
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(i) Whether the deed of Bai mokassa (Ext.F) executed by Abdul Rahim alias Chand Mian in favour of his wife Bibi Hamidan was legal, valid and proper and conferred right, title and interest in the suit property on her as an absolute owner thereof ?
(ii) Whether defendant no.1 Bibi Zohra, who was the only daughter of Bibi Hamidan acquired full right, title and interest in the suit property and came in possession thereof as an absolute owner ?
(iii) Whether the vendors ( Faiyaz Ahmad and Neyaz Ahmad ) of the plaintiffs had any right, title, interest or share in the suit property, which they could legally transfer to the plaintiffs ?
(iv) Whether the plaintiffs acquired any right, title, interest or share in the suit property by virtue of sale deed dated 17.07.1971 (Ext.1) executed by the said vendors ?
Points no. (i) & (ii) :
17. So far the deed of Bai mokassa (Ext. F) executed by Abdul Rahim alias Chand Mian in favour of his wife Bibi Hamidan is concerned, the claim of the plaintiffs-appellants is that it is a sham and farzi document prepared by Abdul Rahim alias Chand Mian only with a purpose to avoid payment of money to his creditors and hence it was never acted upon. It was also claimed that earlier in Partition Suit No. 211 of 1965 defendant no.1 had herself taken the plea that the said deed of Bai mokassa was a farzi transaction and hence she cannot now turn around and say in the instant suit that the said Bai mokassa was a valid document as the principle of estoppel would be applicable in view of sections 17, 18, 21,32 and 58 as well as section 115 of the Evidence Act. On the other hand, specific claim of the defendants-respondents is that the said deed of Bio mokassa was a
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legal and valid transaction, which was given effect to and on its basis Bibi Hamidan became the absolute owner of the suit property, which subsequently devolved upon her daughter (defendant no.1).
18. From the facts and circumstances of this case, it is an admitted fact that the suit property belonged to Abdul Rahim alias Chand Mian, who had a wife Bibi Hamidan and they had only one issue, namely, Bibi Zohra ( defendant no.1). It is also an admitted fact that the said Abdul Rahim alias Chand Mian executed a registered deed of Bai mokassa dated 29.10.1946 (Ext.4) in favour of his wife Bibi Hamidan in lieu of her dower debt. The point in dispute is whether the said deed of Bai mokassa was a legal and genuine document conferring full right, title and possession of the suit property upon Bibi Hamidan or it was a sham and showy document not conferring any right, title and interest upon Bibi Hamidan and hence the property remained the property of Abdul Rahim alias Chand Mian till his death, whereafter it devolved upon his heirs according to the Mohammedan Law.
19. From a bare perusal of the aforesaid deed of Bai mokassa (Ext. F), it transpires that all the ingredients of a deed of Bai mokassa as well as requirements of a registered document are present therein and there is no dispute with respect to the signatures of the executant as well as scribe and identifying witnesses. Furthermore, the said deed (Ext. F) has been proved by its scribe (D.W.11). It also transpires that after execution of deed of Bai mokassa, the name of Bibi Hamidan was mutated and municipal receipts (Ext. A series) as well as Chowkidari receipts (Exts. D series ) were issued in the name of Bibi Hamidan. Registered sale-deed dated 29.09.1953 (Ext. C/1), Rehan deeds dated 07.05.1957, 06.07.1965 and 14.01.1960 (Exts. E series), which were executed by Bibi Hamidan in favour of the vendee and mortgagees, also show that she was dealing with the suit property after
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the deed of Bai mokassa.
20. On the other hand, no chit of paper was filed on behalf of the plaintiffs-appellants to disprove the said Bai mokassa and the possession of Bibi Hamidan except the written statement of defendant no.1 in the earlier Partition Suit No. 211 of 1965 (Ext. 4), Ext.1 is the sale-deed dated 17.07.1971 executed by Faiyaz Ahmad and Neyaz Ahmad in favour of the plaintiffs; Exts. 2 series are the notices from the Chairman of the Municipality from 1971 to 1975, Ext. 3 is the vakalatnama of defendant no.1, Exts. 5 series are the negative and positive of photograph of the suit house, Ext. 6 is the signature of P.W.12 over Bai mokassa and Ext. 7 is degree in Partition Suit No. 211 of 1965 on compromise dated 18.11.1968 and none of them give any indication of either Bai mokassa being sham and farzi or Bibi Hamidan not being in possession after the deed of Bai mokassa.
21. So far the oral evidence of the plaintiffs' witnesses in that regard is concerned, P.Ws. 1 and 2 are formal witnesses, whereas, P.Ws. 3,4,5,6,7 and 8 gave bald statements regarding possession and out of them P.W.3 admitted that the vendors of the plaintiffs were rickshaw-pullers in the same town, but they did not come to depose, whereas, P.Ws. 4 and 8 admitted about the transaction made by Bibi Hamidan as an absolute owner. P.W.9 is the plaintiff himself, whereas, P.W.10 is the photographer, who had merely proved the photographs, which cannot be a proof of even present possession P.W.11 is the goldsmith stating that Abdul Rahim alias Chand Mian got a Hasuli, worth Rs.500.00, made to give it to his wife in lieu of dower debt, but the period of preparation of the said Hasuli stated by the said witness is much earlier to the marriage of Abul Rahim alias Chand Mian with Bibi Hamidan. P.W.12, who was an attesting witness to Bai mokassa (Ext. F) has stated that Abdul Rahim alias Chand Mian got the Bai mokassa prepared because
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his creditors were annoying him and a scribe in the Cutchery advised him to execute a sham Bai mokassa in favour of his wife but no evidence has been produced in the case to show that there was any creditor of Abdul Rahim alias Chand Mian or he was indebted and any step was taken by any one for realisation of any debt. He could also not state the amount of dower debt of Bibi Hamidan and hence both the said witnesses on the point of dower debt, namely, P.Ws. 11 and 12, are absolutely false and unreliable.
22. The said oral and documentary evidence adduced on behalf of the plaintiffs-appellants themselves sufficiently proved the execution and legality of Bai mokassa, whereas, the subsequent possession of Bibi Hamidan of the suit property on the basis of the said Bai mokassa was proved by the evidence of D.Ws. 5,9,10,12,13,16,18 and 19 and from the perusal of their depositions, this Court finds that the learned trial court has rightly held the said depositions of D.Ws. superior to the depositions of the plaintiffs-witnesses, namely, P.Ws. 3,4,5,6,7,8 and 9. It may be noted in this regard that the oral evidence of the plaintiffs- appellants are not based on any documentary evidence, whereas, the oral evidence adduced on behalf of the defendants are based on documentary evidence as mentioned above. Hence it is established that the deed of Bai mokassa had taken effect and was acted upon and on its basis Bibi Hamidan came and remained in possession of the suit property.
23. So far the written statement (Ext.4) of defendant no.1 in Partition Suit No. 211 of 1965 and the compromise decree (Ext. 7) passed therein are concerned, the plaintiffs have tried to take shelter of the law of estoppel against defendant no.1. From the perusal of the documents of the aforesaid Paritition Suit No. 211 of 1965, it is quite apparent that the said suit was filed by the maternal
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uncle of Bibi Zohra for his share in the suit property and in that suit the original claim of defendant no.1, who was contesting the suit, was that she was the owner of the suit property on the basis of gift by her mother and subsequently she made an alternative prayer that the deed of Bai mokassa relied upon by the plaintiffs of that suit was a farzi document, but after filing of that written statement no stress was placed upon the said alternative prayer and no such issue was framed in the earlier partition suit nor any such plea was mentioned either in the compromise petition or in the earlier judgment/order of that suit and it was amicably compromised by the parties accepting the right, title and possession of defendant no.1 with respect to the suit properties. In the said circumstances, the learned trial court has rightly come to the conclusion that the said stand of defendant no.1 with respect to Bai mokassa taken in the earlier suit was not her unequivocal admission specially when her case was not based on the said alternative prayer as she specifically claimed to be the absolute owner of the suit property and even in the compromise petition or decree in the earlier suit, it was nowhere mentioned that the deed of Bai mokassa was a farzi and sham transaction.
24. In the said circumstances, the provisions of the Evidence Act with regard to res judicata are clearly not applicable to the facts and circumstances of this case, specially when law is well-settled that an admission made in an earlier suit cannot be a conclusive proof against a party, who is fully entitled to say that the earlier admission was wrong. It may be noted in this regard that the specific claim of defendant no.1, which she had fully proved, is that she got the suit property from her mother, who was earlier the exclusive owner thereof on the basis of Bai mokassa and hence the deed of Bai mokassa having been found to be legal, valid and proper in favour of Bibi Hamidan, the only person, who can come
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forward to challenge the right, title and interest of defendant no.1 could be the other heirs of Bibi Hamidan as per the Mohameddan Law of Inheritance, but none of them has come forward to lay any claim clearly because they had already compromised the matter with defendant no.1 in the earlier Partition Suit No. 211 of 1965.
25. It is, thus, held that the deed of Bai mokassa (Ext.F) executed by Abdul Rahim alias Chand Mian in favour of his wife Bibi Hamidan was a legal, valid and proper document conferring full right, title and possession of the suit property on her as absolute owner thereof and, thereafter, defendant no.1 Bibi Zohra who was admittedly the only daughter of Bibi Hamidan acquired full right, title and interest in the suit property and came in possession thereof as absolute owner.
Points no.(iii) & (iv)
26. So far the claim of the plaintiffs that their vendors, namely, Faiyaz Ahmad and Neyaz Ahmad had six annas share in the suit property being the nephews and heirs of original owner Abdul Rahim alias Chand Mian and that the plaintiffs acquired right, title and interest in the suit property by virtue of sale-deed dated 17.07.1971(Ext.1) executed by the said vendors, is concerned, it is true that admittedly Faiyaz Ahmad and Neyaz Ahmad were sons of Abdul Aziz, who was full brother of Abdul Rahim alias Chand Mian and hence Abdul Rahim alias Chand Mian having left behind only a widow and a daughter, any property left by him after his death would devolve upon his widow (Bibi Hamidan), his daughter (Bibi Zohra) and nephews (Faiyaz Ahmad and Neyaz Ahmad ) to the extent of 2 annas, 8 annas and 6 annas, respectively. But here in the instant case, it is quite apparent that the said Abdul Rahim alias Chand Mian had not left the suit property at the
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time of his death to be inherited by his said heirs as at the time of his death he was not the owner of the suit properly clearly because he had already transferred the said property much before his death to his widow Bibi Hamidan by a registered deed of Bai mokassa (Ext. F), whereafter the said Bibi Hamidan came and remained in possession of the suit property as absolute owner thereof, which has been specifically found and affirmed by this Court while dealing with Points no. (i) and (ii) in the above paragraphs.
27. Furthermore, since the said property became the exclusive property of Bibi Hamidan, it will devolve only upon the heirs of Bibi Hamidan and according to the provisions of inheritance in the Mohammedan Law, the nephew of the husband of a widow cannot, in any manner, be the heir of the widow. In the said circumstances, the vendors of the plaintiffs, namely, Faiyaz Ahmad and Neyaz Ahmad had no right, title, interest or share in the suit property and hence when they had no right, title, interest or share in the suit property they cannot legally transfer it to the plaintiffs and hence the plaintiffs cannot be legally deemed to have acquired acquire any right, title, interest or share in the suit property by virtue of sale-deed dated 17.07.1971 (Ext.1) executed by the aforesaid Faiyaz Ahmad and Neyaz Ahmad .
28. After considering the pleadings and evidence, both oral and documentary adduced on behalf of the parties, it has already been specifically held in the above paragraphs that the deed of Bai mokassa dated 29.10.1946 (Ext.F) executed by Abdul Rahim in favour of his widow Bibi Hamidan was legal and valid and had taken effect and was also acted upon and on this basis Bibi Hamidan came and remained in possession of the suit property, whereas, on the other hand, the plaintiffs have miserably failed to show that their said vendors had any title or
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were ever in possession of the suit property. They also failed to prove by any legal and proper evidence that the sale-deed dated 17.07.1971 (Ext.1) executed by Faiyaz Ahmad and Neyaz Ahmad in favour of the plaintiffs had taken effect and was ever acted upon and on this basis the plaintiffs ever came in possession of the suit property, hence their claim and suit had to be rejected.
29. It is, thus, held that Faiyaz Ahmad and Neyaz Ahmad , the vendors of the plaintiffs had no right, title, interest or share in the suit property and as such they were not entitled to execute any deed of transfer with respect thereto and hence the said sale-deed was not legal, valid and proper and on its basis the plaintiffs did not acquire any right, title, interest or share in the suit property.
30. In the aforesaid facts and circumstances and on the basis of the aforesaid findings, this Court does not find any merit in the instant first appeal nor does it find any illegality in the impugned judgment and decree of the learned court below and, accordingly, this first appeal is dismissed. However, in the facts and circumstances of this case, there will be no order as to costs.
Patna High Court ( S. N. Hussain, J. ) The 13th April, 2009 N.A.F.R. MPS/ - 32 -