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2002 DIGILAW 476 (PAT)

Most. Bibi Sahifa Khatoon v. Bibi Kulsum

2002-04-11

RADHA MOHAN PRASAD

body2002
Judgment 1. This appeal is directed against the judgment of affirmance passed in Title Appeal No. 9 of 1992 by the 2nd Additional District Judge, Nalanda, Biharsharif. 2. It is not in dispute that Wahid Ali had two sons, namely, Karim @ Kariman and Nayeem. Kariman had two wives and from the first wife he got three sons, Abdul Halim, Abdul Latif @ Chhedi Mian and Subhan and from the second wife, two sons and one daughter, namely, Salim @ Natwar, Md. Kalim @ Bahadur and Bibi Hesharan. According to the plaintiff, Nayeem Mian had sold the suit land to the father of the original plaintiff Latif Mian and shifted to Biharsharif and permanently left village home in 1921. Their further case is that Nayeem Mian died issueless and his wife also died issueless and defendant appellants are not sons of Nayeem Mian rather they are sons of Sultan Mian and always tried to disturb the plaintiff, somuch so that though their carries find place in survey record of rights the defendant 2nd set cunningly sold the land of the plaintiff in the hand of defendant 1st set and defendant 1st set started disturbing the plaintiff-respondent, which resulted in filing of the suit seeking declaration that the sale deed executed by defendant 2nd set is fabricated, non-effective and that the defendants have not acquired any right, title by the said collusive deed. Further prayer in the suit was that if the plaintiffs are dispossessed from the disputed land during the pendency of the suit their possession may be restored. 3. According to the case of the defendant, Nayeemuddin had two wives. From the first wife Makbulan, there was no issue, but from the second wife Most. Idan there were four sons, Alim, Salim, Nayeem and Samiuddin. It is said that Subhan died after marriage. The defendants except defendant no. 13, who accepted the case of the plaintiff-respondent, have denied that Nayeemuddin died in the year 1952 and his only wife Makbulan died in the year 1970 without any issue. According to them, Idan died during the life time of Nayeem and four sons and Makbulan, the first wife of Md. Nayeem lived together at Konasarai where she died in the year 1981. According to them, Idan died during the life time of Nayeem and four sons and Makbulan, the first wife of Md. Nayeem lived together at Konasarai where she died in the year 1981. With respect to entry of name in the survey record of rights in favour of the plaintiffs, it is stated that Kariman was the karta of the family and looking after the management of the land, and, as such, rent receipts were being issued in his name, which tradition was followed after the death of Kariman and rent receipts were issued in the name of Latif, the original plaintiff. According to them the land was jointly possessed by the heirs of Karim and Nayeem. Their further case is that till January, 1988 the family was joint and partition took place in the family and sons of Kariman got half share and half share was allotted to the sons of Nayeemuddin and accordingly, they started cultivation and due to need of the money they sold the land to other defendants as they got handsome price. Defendant no. 13 who is purchaser of some of the land from plaintiff has supported the case of the plaintiff. 4. The parties led evidence and after full discussions of the evidence the trial court decreed the suit and the lower appellate court has affirmed it by the impugned judgment. 5. The main contention before the lower appellate court was as to whether the story of oral sale as alleged by the plaintiff is correct and the plaintiff acquired right and title on the basis of oral sale and also that whether the plaintiff acquired right and title over the disputed land by adverse possession. On both counts, the lower appellate court has affirmed the judgment of the trial court and decreed the suit. The oral sale by Nayeem in favour of the plaintiff some times in the year 1921 has been held to be valid. On both counts, the lower appellate court has affirmed the judgment of the trial court and decreed the suit. The oral sale by Nayeem in favour of the plaintiff some times in the year 1921 has been held to be valid. It has been held by the trial court and affirmed by the appellate court that the defendants have not filed any documentary evidence regarding their claim of being sons of Nayeem and that oral evidence adduced regarding marriage of Nayeem with Idan has not been established by the defendants, and further, the story of partition in 1983 claimed by the defendants has not been found to be believable, in the circumstances discussed in paragraph 11 of the trial court judgment. It has, thus, been held no partition between defendant 2nd set and the plaintiff has taken place in the year 1983. It is true that the trial court in paragraph 7 has noticed that there is admittedly no document of transfer by Nayeem, but, on consideration of the evidence found that they support the case of the plaintiff that in the year 1328 Fasli Nayeemudin sold the land to Karim, and lastly sold the home in the year 1944 which shows that Nayeem had no property at village Mohani and, as such, the trial court has found it difficult to believe that a person would sell his house in the village, if he had property in the village. Finally the trial court has clearly found that Nayeem had already sold his share of property in the year 1921 and so-called sons of Nayeem had no concern with the suit properties. 6. Learned counsel for the appellants has contended that the story of oral sale as set up by the plaintiff has wrongly been accepted by both the courts-below and the same is hit by Sections 12 and 26 of the B.T. Act. He also contended that the findings regarding adverse possession is also based on conjecture and surmises. 7. I am unable to appreciate the said contention of the learned counsel for the appellant. Once the marriage of Nayeem with Idan has not been established by the defendants and, further, it has not been established by the defendant 2nd set that Alim and his brother defendant 2nd set are sons of Nayeem, the rest of the questions. would not be relevant to succeed in the second appeal. Once the marriage of Nayeem with Idan has not been established by the defendants and, further, it has not been established by the defendant 2nd set that Alim and his brother defendant 2nd set are sons of Nayeem, the rest of the questions. would not be relevant to succeed in the second appeal. However, I find that the trial court has fully discussed the evidence on the question of oral sale as well as acquisition of right and title over the suit properties by the plaintiff by adverse possession and in absence of any infirmity pointed out by the learned counsel for the appellant, no interference with the impugned judgment is warranted, more so when no substantial question of law is involved. 8. The appeal is, thus, dismissed in limine.