ISHTIYAQ HUSAIN ABBAS HUSAIN Vs. ZAFRUL ISLAM AFZAL HUSAIN

JUDGEMENT

(1.) THIS is a defendant's second appeal arising out of a suit filed by the plaintiff-respondent for a declaration that the plaintiff is the owner in possession of the house described at the foot of the plaint, situate in village Sahaspur Ali Nagar, Pargana Amrcha, district Moradabad.

(2.) THE plaintiff's case was that he was the owner in possession of the house in suit of which defendant No. 2 was a tenant. One Mukhtar Ahmad Pradhan of the Gaon Samaj instituted proceedings under Rule 115D of the U. P. Zamindari Abolition and Land Reforms Act, claiming that the Gaon Samaj was the owner of the house in dispute. It was alleged, further, that neither defendant No. 2 nor defendant No. 4 was the owner of the house and that the sale-deed alleged to have been executed by Chhidda in favour of defendant No. 4 conferred no title upon him. In the proceedings under rule 115-D of the U. P. Zamindari Abolition and Land Reforms Act the plaintiff was directed to file a regular suit and hence he filed the suit out of which this appeal has arisen. The State Government was made a pro forma defendant and it did not put in appearance. The Gaon Samaj filed a written statement but thereafter took no further interest in the litigation. Defendant No. 2 did not put in appearance. The suit was contested only by the appellant, Ishtiyaq Husain. He pleaded that the plaintiff was not the owner of the house and that the answering defendant had purchased the house by a registered sale-deed dated the 3rd of September 1956 from Chhidda who was the real owner of the house. The bar of Section 42 of the Specific Relief Act was also pleaded.

(3.) IN Raghubans Sahai v. Ful Kumari, (1905) ILR 32 Cal 1130 a Division Bench of the Calcutta High Court observed as follows:--