M.Y.EQBAL, J. - (1.) THIS appeal directed against the judgment and decree dated 20.9.1990 passed by the 2nd Additional District Judge, Giridih in Title Appeal No. 32 of 1981 whereby he has allowed the appeal filed by the plaintiff in part and right tile and interest of the plaintiff -respondent Nos. 1 and 2 was declared in respect of a portion of the suit property.
(2.) THE plaintiff -appellant filed Title Suit No. 58 of 1979 for a declaration that plaintiff Nos. 1 and 2 have subsisting right, title and interest over a pucca built house measuring 4.25 decimals forming part of holding No. 103, Ward No. 3 of Giridih Municipality fully described in Schedule "B" of the plaint which is the suit property. Further relief for declaration that the agreement for sale dated 24.4.1997 alleged to be executed by defendant No. 2 in favour of defendant No. 1 in respect of the suit property as well as Schedule "A" property is illegal, collusive, void and without consideration and it did not confer any right to defendant No. 1 and consequently, the decree obtained by defendant No. 1 in Title Appeal No. 29 of 1979 on the basis of the aforesaid agreement Is not binding on the plaintiffs. The facts of the case lie In a narrow compass: The plaintiffs case was that one Jan Mohammad (Plaintiff No. 3) purchased a tiled house and land measuring 6.5 decimals bearing old Holding No. 165 Ward No. 3, Giridih Municipality fully described in Schedule "A" of the plaint by a registered sale -deed dated 24.8.1929. The purchase was benami in the name of his wife Bibi Jafiran. It is alleged that Jan Mohammad, thereafter continued to be real owner of the house and land and he remained in possession over the same and never treated his wife as the owner of the house and the land purchased by him. The plaintiffs' further case is that adjacent sought of Schedule "A" house, there was vacant land measuring 4.25 decimals which was acquired by Jan Mohammad by way of permanent settlement from the landlord and came in exclusive possession of the land and constructed a pucca house on it. This land has been described in Scheduled "B" of the plaint which is the suit property. According to plaintiffs, after constructing house over the suit property, Jan Mohammad started living therein with his family members and let out Schedule "A" house to different tenants and used to collect rent from them as absolute owner. Plaintiffs further case is that both Schedule "A" and Schedule "B" properties were subsequently treated as one holding which was numbered as 165. Jan Mohammad used to pay municipality taxes for the aforesaid holding. It was alleged that Bibi Jafiran, wife of Jan Mohammad, died 40 years ago leaving behind her husband and one son Abdul Sattar. Even after death of Bibi Jahiran, Jan Mohammad continued to be the real owner of the properties to the knowledge of the whole world including his son Abdul Sattar and his wife Nisha Khatoon. After the death of Bibi Jafiran, Jan Mohammad married a second wife Bibi Putni from whom he got four sons who are defendant Nos. 3 and 4 and plaintiff Nos. 1 and 2. It was alleged that when the four sons of Jan Mohammad attained majority, he made an oral partition of the suit property. In that partition Schedule "A" house was allotted to Abdul Sattar, Abdul Gaffar and Md. Jaf - far, whereas the suit property was allotted to Md. Rahim and Md. Shakil. In order to avoid any further trouble, Jan Mohammad also executed two sale -deeds. By the first sale -deed dated 28.7.1972, he transferred the house in favour of Abdul Sattar, Abdul Gaffar and Abdul Jaffar. By another sale -deed dated 5.8.1972, he transferred Schedule "B" the suit property, in favour of Md. Rahim and Md. Shakil. It was further pleaded by the plaintiffs that the eldest son of Jan Mohammad, namely, Abdul Sattar had no issue. He, at the request of his wife, defendant No. 2 divorced her. Soon after giving divorce, Abdul Sattar died and after his death, his father Jan Mohammad became the sole heir and succeeded to the entire share of Abdul Sattar in Schedule "A" house. In the year 1978, Jan Mohammad and his son Abdul Gaffar and Abdul Jaffar sold Schedule "A" house to Bibi Nazma, Md. Qudus Md. Siddique and Md. Safique by a registered sale - deed dated 25.2.1978. Thereafter, the plaintiff came to know that defendant No. 1 obtained a decree in Title Suit No. 29 of 1977 against defendant No. 2 Nisha Khatoon on the basis of agreement alleged to have been executed by defendant No. 2 in her favour. The plaintiff alleged that the agreement to sale dated 20.4.1977 executed by defendant No. 2 in favour of defendant No. 1 on a consideration and it did not confer any right, title and interest on the basis of decree passed in the said suit.
(3.) DEFENDANT Nos. 3 and 4, the two sons of Jan Mohammad did not contest the suit. Defendant No. 2 filed a separate written statement supporting the case of the plaintiff stating that she had no right title or interest or possession over any part of the suit property. She further denied to have executed any agreement in favour of defendant No. 1.;