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1994 DIGILAW 333 (PAT)

Mostt. Bibi Hakimunnissa v. Ram Naresh Singh

1994-09-30

B.L.YADAV

body1994
JUDGMENT B. L. Yadav, J. - This is plaintiff's second appeal preferred under section 100 of the Code of Civil Procedure in a suit for eviction of the defendant-respondent from the suit premises (two rooms with open space). The case of the plaintiff-appellant is that Md. Ishaque Khan and Md. Yunus Khan were full brothers and they had purchased Plot no. 219 khata no. 57 situate in village Deonah, P.S. Sarauni, District Begusarai from its owner Smt. Simla Devi by a registered deed. The land was partitioned half and half. One half came to the share of Ishaque Khan. He built up a house of 5 rooms on his portion and let out to the defendant on 1.7.1978 at the monthly rental of Rs. 150/-. The husband of the appellant however, through a deed of Baimokasha dated 2nd February, 1980 transferred it to his wife, the appellant. The defendant paid rant till March, 1980 and refused to pay thereafter. The plaintiff also required the suit premises for her personal bona fide needs. The defendant-respondent, however, contested the suit denying the plaintiff's allegation and alleged that Smt. Simla Devi acquired 2 kathas 14 dhurs by a deed of gift dated 6.10.1955 executed by her father, out of that she let out 18 dhurs to the defendant on a monthly rental of Rs. 15/-. The kirayanama dated 1st May, 1965 was also executed. Later on the defendant purchased the said land for his business purposes and constructed Pucca rooms over it and he was not the tenant of the plaintiff. It was averred that the suit was bad for nonjoinder of necessary parties, barred by limitation and also barred by the principles of acquiescence. 2. The trial court, however, considered the evidence, documentary and oral, dismissed the suit by the judgment and decree dated 19th December, 1986. Against that decree the plaintiff preferred a First Appeal which was dismissed on 5.8.1992 by the 5th Additional District Judge, Begusarai. The present second appeal has been filed against the judgment and decree of the courts below. 3. Learned counsel for the appellant strenuously urged that the courts below committed an error in holding that there was no relationship of landlord and tenant and that the plaintiff has no title towards the land and construction in dispute. The present second appeal has been filed against the judgment and decree of the courts below. 3. Learned counsel for the appellant strenuously urged that the courts below committed an error in holding that there was no relationship of landlord and tenant and that the plaintiff has no title towards the land and construction in dispute. It was also urged that through sale deeds dated 18th March, 1974 and 11th May, 1976 Smt. Simla Devi, the owner of the land had sold it to Md. Ishaque Khan, the husband of the plaintiff and Md. Yunus Khan. Later on the land was divided through a private partition and each of them got 1 katha 7 dhurs and out of that two rooms were let out to the defendant. Thereafter by a sale deed Md. Ishaque Khan transferred his share in favour of his wife who has filed the suit. The sale deeds have been held to be non-genuine by the courts below. Consequently they came to the wrong conclusion that there was no relationship of landlord and tenant. 4. Learned counsel for the respondent, on the other hand, urged that the appeal was concluded by a finding of fact inasmuch as whether there was any relationship of landlord and tenant, was a question of fact and whether any sale deed was genuine or fake was also a question of fact. Consequently there is no substantial question of law involved in this second appeal and the same deserves to be dismissed. 5. Having scrutinised the submissions of the learned counsel for the parties two more questions require consideration. The first question is whether the sale deeds on the basis of which the plaintiff derives title are genuine and whether there is any relationship of landlord and tenant and if not, was it a guestion of fact? 6. As regards the first point, suffice it to say that in respect of the sale deeds pertaining to the title of the plaintiff or her husband Md. Ishaque Khan entire oral and documentary evidence have been referred to and considered both by the trial court and appellate court. The first sale deed relied upon was dated 18.3.1974 and the second was dated 11.5.1976 executed by Smt. Bimla Devi in favour of Md. Ishaque Khan and Md. Yunus Khan. Ishaque Khan entire oral and documentary evidence have been referred to and considered both by the trial court and appellate court. The first sale deed relied upon was dated 18.3.1974 and the second was dated 11.5.1976 executed by Smt. Bimla Devi in favour of Md. Ishaque Khan and Md. Yunus Khan. The case of the defendant was that the sale deeds dated 18.3.1974 and 11.5.1976 were forged and fabricated one and they do not confer any title of possession over the land in favour of Ishaque Khan. Each sale deeds were examined in detail. Sale deed dated 18.3.74 is Ext. 10 whereas sale deed dated 11.5.76 is Ext. 10/B. The lower appellate court has made a discussion in paras 11 and 12 and onwards of the judgment and at the close of para-11 it was held that the sale deed relied upon by the plaintiff cannot be relied upon nor they confer title and possession over Ishaque Khan. Similarly other sale deed dated 11.5.1976 has been considered in para-13 onwards and ultimately under para-14 of the lower appellate court judgment that the plaintiff failed to prove her title and possession on the basis of the sale deeds. Both the sale deeds, however, have been held to be illegal, nor even the thumb impression of the executant Smt. Bimla Devi was proved. Under para-21 the learned Additional District Judge has held that the sale deed dated 183.74 (Ext.10) was fabricated and forged one and its genuineness was not beyond doubt. Similar is the finding in respect of the other sale deed. In this view of the matter the sale deeds on the basis of which the plaintiff derived her title from her husband were forged and fabricated. Consequently in respect of the land in dispute whether the construction was allowed to have been raised by Md. Ishaque Khan and later on the same was actually alleged to have been sold in favour of the plaintiff. As Ishaque Khan, the husband of the plaintiff has no title, hence he cannot convey better title in favour of his wife, the present appellant. In this view of the matter the plaintiff has filed a suit in respect of the land and construction but in view of the finding of fact recorded by courts below the sale deeds are not genuine. 7. In this view of the matter the plaintiff has filed a suit in respect of the land and construction but in view of the finding of fact recorded by courts below the sale deeds are not genuine. 7. Both the courts below have held that there was no relationship of landlord and tenant. This is a finding of fact based on appraisal of evidence on record and this point cannot be considered in second appeal. 8. In view of the premises aforesaid this appeal fails and the same is dismissed but without any order as to cost.