BIBI ZAMIRUNISSA Vs. SK QUDOOS

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for declaration that the kebala dated the 11th November, 1951, executed by Bibi Sirejan widow of Sk. Doman in favour of respondents Nos 1 and 5 (defendants Nos. 1 and 2) and that dated the 26th February, 1952, executed by Bibi Sairunnissa daughter of Sk. Doman in favour of respondent No. 8 (defendant No. 3) were illegal, without consideration and did not affect the appellant's right to the suit lands as she was a prior purchaser. A prayer was further made for confirmation of possession, in the alternative, for recovery of possession as also for carving out a share to the extent of 1 bigha 13 kathas 13 1/2 dhurs in her favour after partition of Schedules 2 and 3 lands.

(2.) On the case of both the parties, 5 bighas 1:5 kathas 12 dhurs of land of village iDilawarpur, described in Schedule 1 of the plaint, belonged to and was in possession of one Sk. Doman. The entire land was sold in execution of the decree passed in Rent Suit No. 1369 of 1936 for arrears of rent. It was purchased in auction sale by the decree-holder who also took delivery of possession. Sk. Doman died leaving behind three sons, five daughters and a widow. On his death, three of his sons filed an application under Order 21, Rule 58, Code of Civil Procedure, (Miscellaneous Case No. 157 of 1938), but it was dismissed. Thereafter the five daughters and the widow of Doman filed an application under Order 21, Rule 90, Code of Civil Procedure, (Miscellaneous Case No. 117 of 1948), for setting aside the sale. This application was also dismissed but at the appellate stage (Misc. Appeal No. 66 of 1950) a compromise was arrived at between the parties as a result of which 1 bigha 10 kathas 17 1/4 dhurs out of the auction-sold lands (Schedule 3 of the plaint) was given to the five daughters and the widow of Sk. Doman. By the said compromise, the title of the five daughters and the widow of Sk. Doman and their possession over this land was accepted (the sons of Doman having nothing to do with it) and the claim over the rest of the auction-sold lands by the aforesaid female heirs of Sk. Doman was given up.

(3.) Out of the aforesaid female heirs of Sk. Doman, two of his daughters, Sairunnissa and Zulekha and his widow Sirajan executed a sale deed in favour of the appellant on the 22nd of October, 1951 (Exhibit 1). By this document they sold their entire share which they had got by means of the above compromise in Misc. Appeal No. 66 of 1960, arising out of Miscellaneous Case No. 117 of 1948. The share of the vendors was to the extent of one-half of 1 bigha 10 kathas 17 dhurs and odd as indicated by the petition of compromise (Exhibit 4).