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2004 DIGILAW 1117 (JHR)

Buta Rana v. Mahmood Alam

2004-12-21

HARI SHANKAR PRASAD

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JUDGMENT Hari Shankar Prasad, J. 1. This Second appeal is directed against the judgment dated 13.6.1990 and decree signed on 23.6.1990 passed in Title Appeal No. 38 of 1987 whereby and whereunder the learned 2nd Additional District Judge, Giridih allowed the appeal and set aside the judgment dated 25.7.1987 decree signed on 5.8.1987 passed by Munsif, Giridih in Title Suit No. 122 of 1985. 2. Admitted case of the parties is that the plaintiff/ appellant purchased 5 decimals of land through two registered sale deeds executed in his favour by Jahoor Khan and the execution of sale deeds has not been denied by him. Admittedly he inherits the property jointly with. Yasin Khan, his brother. After the death of their father. Daimali Khan and Jahur Khan sold out of 10 Kathas, 5 Katha of land through two sale deeds in favour of the plaintiff/appellant. Further admitted case of the parties is that both the brothers executed another sale deed in favour of defendant/respondent. 3. The plaintiff/appellant filed a Title Suit No. 122 of 1987 with the reliefs to declare his right, title and possession and also for confirmation of his possession and If he Is found to have been dispossessed during the pendency of the suit, then for recovery of possession. Defendant appeared in the suit and contested the suit stating therein that prior to execution of sale deed by Jahur Khan in favour of plaintiff/appellant, defendant had entered into an agreement with both the brothers and subsequently in pursuance of that agreement for sale, both the brothers have executed registered sale deed in his favour by sale-deed dated 4.10.1977 and the sale deed said to have been executed by Jahur in favour of plaintiff/appellant also by forged and fabricated document, wherein a plea was taken that the vendor had no right to sale the land and that sale deed is sham, fargi and fabricated. 4. The defendant/respondent being aggrieved by the said judgment and decree, filed appeal before the District Judge, Giridih and the learned 2nd Additional District Judge, vide his judgment dated 13.6.1990 and decree dated 26.6.1990 set aside the judgment and decree of the learned Court below and allowed the appeal in favour of the defendant/respondent and thereafter this Second appeal has been preferred. 5. 5. Here in the instant second appeal, the substantial question has been framed which is as follows : "Whether the learned Court of appeal below, on his own finding would have declared that the appellant is entitled to acquire the share of his vendor in the suit land in terms of the deed of sale dated 7.9.1977?" 6. Admittedly, the sale deed was executed by Jahoor Khan in favour of the appellant-plaintiff. Through registered sale-deed, the lands of Khata No. 59 of village Dhanwar, District Giridih in the last survey settlement, operation were recorded in the names of Budhan Khan, Heman Khan and Haban Khan, sons of Nathu Khan and Jamal Khan son of Mohan Khan of village Dhanwar. The lands of plot No. 1163 under Khata No. 59 measuring an area of 0.09 acre was recorded in the name of Jamal Khan in Kabjwari column over which he was in exclusive possession over the same as the aforesaid tenants have already been partitioned amicably among themselves and hence, separate Kabjwaris have been prepared in, the name of the recorded tenants and accordingly the said Jamal Khan exercised his exclusive right, title, interest and possession over the lands of plot No. 1163 of Khata No. 59 of village Dhanwar, but the aforesaid Jamal Khan died leaving behind him his two sons namely Fate Khan and Daimali Khan and soon after the death of Jamal Khan, his son Fate Khan also died, then Daimali Khan also died leaving behind his two sons namely Jahur Khan and Yashin Khan and this Jahur Khan on 7.9.1987 executed sale-deed with respect to the suit land in favour of the appellant- plaintiff and soon there-3 after both brothers who inherited the property of their father Daimali Khan, jointly executed the sale deed on 4.10.1987 jointly in favour of the defendant-respondent. When the appellant-plaintiff filed a petition before Dhanwar Anchal, Sherista of the State of Bihar for mutation of his name, the Anchal Adhikari, Dhanwar after thorough inquiry cancel the mutation order. Then it transpired that name of the defendant-respondent has been mutated with respect to the land in dispute as he had also purchased the land through sale-deed executed by both the brothers in his favour on 4,10.1987. When a petition for mutation was turned down, then he filed an appeal before LRDC. Then it transpired that name of the defendant-respondent has been mutated with respect to the land in dispute as he had also purchased the land through sale-deed executed by both the brothers in his favour on 4,10.1987. When a petition for mutation was turned down, then he filed an appeal before LRDC. But since name of the plaintiff-appellant was not mutated, he has filed this instant suit and in the suit the learned Court of Munsif decreed the suit but in appeal) the learned appellate Court set aside the judgment and decree of the learned Court of Munsif. 7. Since after the death of the Daimali Khan, Jahur Khan and Yashin Khan inherited the land jointly and came in possession over the entire lands over which Daimali Khan was exercising his right, title, interest and possession and consequently both of them also got right, title, interest and possession over the said land. As per settled principle of Mohammedan Law, there is no concept of jointness and, therefore, heirs do not come in possession of the land and when Jahur Khan executed the sale deed in favour of the appellant-plaintiff with respect to the land described in schedule through two sale deeds, then plaintiff-appellant got right, title, interest and possession over the land sold by Jahur Khan as in the suit, Jahur Khan had not denied that he did not execute the registered sale deed in favour of the appellant-plaintiff and whatever plea that has been taken on behalf of the defendant-respondent, is not acceptable in view of the fact that there is no denial on the part of Jahur Khan that he has not executed the sale deed in favour of the appellant-plaintiff. To that extent, this appellant-plaintiff will have his right, title, interest and possession over the share of Jahur Khan and, subsequent sale by Jahur Khan and Yashin Khan shall not be applicable to the extent of land that has been executed in favour of the appellant-plaintiff. To that extent, this appellant-plaintiff will have his right, title, interest and possession over the share of Jahur Khan and, subsequent sale by Jahur Khan and Yashin Khan shall not be applicable to the extent of land that has been executed in favour of the appellant-plaintiff. In this connection, reliance may be placed upon AIR 1971 MP 23 wherein it has been held that a co-owner under the Mohammedan Law has a right to sale his undivided share in the estate to which he has succeeded as heir and in the instant case, the learned Court below came to a finding that partition has taken place between brothers and even if there is no partition, still then Jahur Khan has right to sale his undivided share in favour of the appellant-plaintiff. Reliance was also placed upon AIR 1966 SC 792 . 8. Hence, so far as share of Jahur Khan over the land in question is concerned, he had already sold the land in favour of the plaintiff-appellant and to that extent the plaintiff- appellant has acquired right, title, interest and possession over the land in question. Therefore, in my view, the suit brought by the plaintiff-appellant is just and proper. Accordingly, the appeal is allowed and judgment and decree of the learned Court below is, hereby set aside, but in the circumstances without any order as to costs.