NOORBIBI Vs. AYESHABIBI

JUDGEMENT

(1.) These three matters involving common questions of law and fact are proposed to be disposed of by a common judgment.

(2.) In the trial Court two Suit Nos. 409 of 1971 and 1000 of 1972 were disposed of by consolidated judgment against which two Civil Appeals and cross-objections were filed in the lower appellate Court.

(3.) The brief facts are that two houses Nos. 497 and 498 together with open land on the east of House No. 497 situated in village Katargam, District Surat were owned by Jahangir Vazir @ Malik Jahangir. Suit No. 409 of 1971 was filed by the sons of Malik Jahangir. It was alleged that Kulsumbibi was married to Malik Jahangir and at that time Malik Jahangir made gift of house No. 497 in her favour through registered Gift Deed dated 16-4-1928. This house measured 13'.8" x 30'.2". However, some error crept in the deed and dimension was incorrectly shown therein. This Gift Deed was attacked on the ground that it was a conditional gift and that gift was not followed by delivery of possession and that the gift was also contingent and the contingency contemplated in the Gift Deed never arose. Hence, the gift was invalid. The defendant Nos. 11 and 12 holding Power of Attorney of Kulsumbibi executed Sale Deed of House No. 497 in favour of defendant No. 10 on 8-8-1967 and the defendant No. 10 thereafter executed a Sale Deed of the same house in favour of defendant No. 1 on 11-8-1970. Malik Jahangir died in 1961 and Kulsumbibi expired in the year 1967. The plaintiffs and the defendants No. 1, 2 and 9 pleaded that after the death of Malik Jahangir they became owners of the property bearing House Nos. 497 and 498 and open land towards east of House No. 497 as his heirs. In the alternative it was pleaded that if Gift Deed dated 16-4-1928 is held to be invalid then also Kulsumbibi became owner of House No. 497, but she had no right, title or interest on the open land towards east. It was further alleged that defendant No. 1 after purchasing the House No. 497 opened the doors and windows on the eastern side of House No. 497 and constructed stair- case on the eastern side of the open land. As such declaratory suit with relief of mandatory injunction for removal of encroachment was filed. The Gift Deed and subsequent Sale Deeds were challenged and declaration about their invalidity was sought.