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2006 DIGILAW 1072 (JHR)

Abdul Hafiz v. Abdul Azim

2006-08-14

N.N.TIWARI

body2006
ORDER N.N. Tiwari, J. 1. This second appeal Is against the judgment and decree of affirmance dated 6.9.2004 passed by learned Additional District Judge, Fast Track Court III, Jamshedpur in Title Appeal No. 39 of 1998 upholding the judgment and decree dated 22nd July, 1998 passed by learned Munsif, Jamshedpur in Title Suit No. 169 of 1993. 2. The plaintiffs had filed the said suit praying for a decree of permanent injunction restraining the defendant from executing and registering any transfer deed in respect of Schedule 'B' premises in favour of any third party. 3. The plaintiffs case is that a general power of attorney dated 9.11.1993 was executed and registered by Fatima Bibi, defendant No. 1 in favour of Abdul Hafiz, defendant No. 2 authorising him to exercise all the powers including the power to executed transfer deed in respect of entire house premises bearing Holding No. 521 situated at Kasidih, P.S. Sakchi, Jamshedpur. It was stated that by registered deed of release dated 23.11.1955 the dispute relating to suit holding No. 521 was settled among the co-sharers and 1/4th share, each of the co-sharers Abdul Gaffar, Gulam Rabani and Md. Darbesh respectively was admitted by the said defendant No. 1 including her own 1/4th share in the suit property. The possession of the parties to their respective share was also confirmed. Accordingly, the western 1/2 portion was in exclusive possession of the plaintiff and proforma defendant No. 4 and the entire eastern 1/2 portion was in possession of Fatima Bibi, Defendant No. 1 and Md. Darbesh. Defendant No. 2 wanted to purchase the entire holding No. 521 from Sahanaz but could not succeed. Md. Darbesh, however, agreed to transfer his 1/4th share but due to his sudden death, he could not execute any sale deed and his son Md. Tahir executed a sale deed in respect of 1/4th share in the eastern portion of Holding No. 521. The defendant No. 1, thereafter, executed and registered a sale deed and transferred her entire share of Holding No. 521 in the name of the wife of the defendant No. 2. Tahir executed a sale deed in respect of 1/4th share in the eastern portion of Holding No. 521. The defendant No. 1, thereafter, executed and registered a sale deed and transferred her entire share of Holding No. 521 in the name of the wife of the defendant No. 2. When the defendant No. 2 failed to get the plaintiffs share transferred in his favour, he obtained a colourable power of attorney dated 9.11.1993, purportedly executed by Fatima Bibi defendant No. 1, whereby the defendant No. 2 has been conferred all the power including to transfer the western portion of the suit land to any third party, though, she had absolutely got no right, title interest or possession over the same. 4. The case was contested by the defendant. It was contended by him that the defendant No. 1 had never executed any registered deed of release dated 23.11.1955 and the share of Abdul Gaffar, Gulam Rabani and Md. Darbesh as co-sharer was never admitted by her. The said deed of release is forged and fabricated document and prepared with ulterior malafide motive to grab the property of defendant No. 1. It has been stated that the defendant No. 1, herself executed the transfer deed in favour of wife of the defendant No. 2 and she has no power to execute power of attorney dated 9.11.1993 in favour of defendant No. 2 conferring any power including the power to transfer the suit land. 5. On the basis of the said pleadings, several issues were framed. Parties led their evidences. Learned Trial Court, after" thorough appraisal and consideration of the facts, evidences and materials on record, came to the finding that the defendant No. 1 has absolutely got no right to execute or register any sale deed or any general power of attorney in favour of defendant No. 2 in respect of Schedule 'B' property as the said defendant has got no right, title over the eastern portion of Holding No. 521. Learned Trial Court decreed the plaintiffs suit restraining the defendant No. 1 from executing and registering any sale deed or general power of attorney. The defendant No. 1 then filed appeal in the Court of the District Judge. Jamshedpur which was registered as Title Appeal No. 39 of 1998. Learned Trial Court decreed the plaintiffs suit restraining the defendant No. 1 from executing and registering any sale deed or general power of attorney. The defendant No. 1 then filed appeal in the Court of the District Judge. Jamshedpur which was registered as Title Appeal No. 39 of 1998. The said appeal was finally heard and decided by learned Additional District Judge, Fast Track Court-VIII, by the impugned judgment and decree. Learned Lower Appellate Court has also thoroughly scrutinized the facts and evidences and considered all aspects and came to the finding that the judgment and decree of the learned Trial Court was sound and legal and there is no infirmity in the same. Since defendant No. 1 Fatima Bibi died in the meanwhile, a point was raised by the appellant contending that the power of attorney became nonest after the death of its executor, Fatima Bibi, and in that view, the judgment and decree of the trial Court became redundant. Learned Lower Appellate Court, rejecting the said contention, held that the suit was filed during the life time of late Fatima Bibi and as such the said decree was effective during her lifetime and after her death the decree of injunction would have no force. 6. Since the judgment and decree of the Courts below are based on through appraisal of evidences and materials on record and there are concurrent findings of two Courts of facts, I find no ground made out giving rise to any substantial question of law to be framed and decided in this second appeal. This appeal is accordingly, dismissed. Appeal dismissed.