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2018 DIGILAW 1988 (JHR)

Md Nashir v. Md Manjoor

2018-08-30

RAJESH KUMAR

body2018
JUDGMENT Rajesh Kumar, J. - Heard the counsel for the appellants. 2. The appellants are original plaintiffs. 3. A suit being Title Suit No.3 of 1997 has been instituted by the plaintiffs for the following reliefs: Plaintiffs have filed this suit for declaration of their title over Schedule-B land. Further, plaintiffs have prayed that the deed of gift dated 23.08.1988, pertaining to Schedule-B land in favour of the defendants be declared fraudulent, bogus, null and void and by ejecting the defendants, therefore, plaintiffs be put in khas possession thereof. Along with cost of this suit, plaintiffs have prayed for other relief or reliefs to which they are entitled. 4. It has been pleaded by the plaintiffs that the suit land, as described in Schedule-B has been purchased by the original plaintiff in the year 1960, measuring an area 32 decimals from Ashraf Mian @ Ashraf Jolaha, but khata number, plot number and boundary wall has not been mentioned in the sale deed, on the basis of which plaintiffs came in possession of the suit land and after constructing some rooms, they are residing there. 5. It has been further pleaded that further construction has been made in the said suit land and the same has been let out to the defendants in the year 1987 by creating oral tenancy. The defendants have started constructing boundary wall, claiming the suit land as their own land and further, a gift deed dated 23.08.1988 has been obtained by the defendants and as such, present suit has been instituted. 6. The defendants have taken a defence that the suit land belongs to Laxminiya Bibi, which has been inherited by Laxminiya Bibi and the same has been gifted by gift deed dated 23.08.1988 in favour of the defendants, who are son and son-in-law of Laxminiya Bibi. 7. The trial court has framed following issues: (i) Is the suit maintainable in the present form? (ii) Is the suit barred by law of limitation, waiver, acquiescence? (iii) Is the suit bad for non-joinder of necessary parties? (iv) Is there any cause of action for the suit? (v) Whether Schedule ''B'' property is part and parcel of Schedule ''A'' to the plaint and was purchased by the plaintiffs from Ashraf Mian son of Sheikh Juman Mian who was rightful owner in possession of Schedule ''A'' land? (iii) Is the suit bad for non-joinder of necessary parties? (iv) Is there any cause of action for the suit? (v) Whether Schedule ''B'' property is part and parcel of Schedule ''A'' to the plaint and was purchased by the plaintiffs from Ashraf Mian son of Sheikh Juman Mian who was rightful owner in possession of Schedule ''A'' land? (vi) Whether Schedule ''B'' land was owned and possessed by Kheduja Khatoon W/o Late Hussain Mian as her ancestral property? (vii) Whether plaintiffs have got title over the Schedule-B property and whether plaintiffs are entitled to be put in possession over the suit property in Schedule-B to the plaint? (viii) Whether deed of gift dated 23.08.1988 executed in favour of defendant is fraudulent, bogus and void? (ix) Whether the plaintiffs are entitled to get any relief or reliefs? 8. The finding has been recorded by the trial court against the plaintiffs and accordingly, the suit has been dismissed. It has been specifically held that the plaintiffs have failed to prove title over the suit land, as they have claimed the suit land on the basis of sale deed executed in the year 1960 from Ashraf Mian, but how Ashraf Mian has acquired title, has not cleared and it has not been proved by placing any cogent evidence. In absence of any evidence of title with Ashraf Mian, the sale deed conveys no tile to the plaintiffs. Accordingly, suit has been dismissed. 9. Being aggrieved, the plaintiff has filed an appeal being Civil/Title Appeal No.10 of 2005. The appellate court has framed following points for decision. A) Whether the land and house which are in possession of the respondents/defendants are part and parcel of the land related to Thana No.188, P.S. Chatra, Ward No.02 (old), Ward No.07 (new) area 32 decimal purchased by the plaintiffs vide registered sale deed no.1039 dated 28.07.1960? B) Whether the property related to gift deed dated 23.08.1998 alleged to be executed in favour of defendants is part and parcel of the land purchased by the appellants/plaintiffs vide sale deed no. 1039 dated 28.07.1960 as described in Schedule- ''B'' property of the plaint? C) Whether appellants/plaintiffs are entitled to get decree for declaration in respect to Schedule-''B'' property of the plaint? 1039 dated 28.07.1960 as described in Schedule- ''B'' property of the plaint? C) Whether appellants/plaintiffs are entitled to get decree for declaration in respect to Schedule-''B'' property of the plaint? D) Whether appellants/plaintiffs have inducted the respondents/defendants as tenant over the Schedule-''B'' premises of the plaint in the month of March-1987 who are continuing their possession as tenant? E) Whether relationship of landlord and tenant is existing between both the parties and appellants/plaintiffs are entitled to get recovery of possession of the property related to Schedule-''B'' of the plaint by ejecting the respondents/defendants? F) Whether gift deed dated 23.08.1988 is related to Schedule-''B'' property of the plaint and liable to be declared fraudulent, bogus, null and void? G) Whether impugned judgment and decree require any interference by this court or not? 10. In paragraph-20 of the judgment of the appellate court, admitted position of the parties have been given, which is quoted hereinbelow: "20. At this place, I would like to mention the facts admitted by both the parties. A. That plaintiffs are residing in the premises situated towards north and west of the schedule-''B'' property of the plaint. B. That defendants are in possession of Schedule-''B'' property since long. C. That the house which is in possession of the plaintiffs is a Pucca house. D. The house which is in possession of the defendants is a tiled house having total area of 16 decimal including the Sahan. E. That there is boundary wall between the house of the plaintiffs/appellants and the house of the defendants/respondents. F. That there was no any survey in the Chatra hence khata number and plot number has not been given to the specific plots." 11. In totality, the appellate court has approved the finding recorded by the trial court and the decree of dismissal has been affirmed. 12. Being aggrieved, present second appeal has been filed. 13. Learned counsel for the appellants has submitted that since sale deed of the year 1960 and photocopy of the return has been filed in the court below wherein it has been mentioned that the land in question was settled to Ashraf Mian and further on the basis of possession, the Title Suit should have been declared in favour of the plaintiffs. 14. In view of the above discussion, I find no force in the submission advanced by the counsel for the appellants. 15. 14. In view of the above discussion, I find no force in the submission advanced by the counsel for the appellants. 15. As there is no substantial question of law involved in the present second appeal, the same is hereby, dismissed.