SITARAM SAH AND ANOTHER Vs. BIBI AISA KHATOON AND OTHERS

JUDGEMENT

(1.) The plaintiffs have moved this Court in appeal against the judgment and decree of affirmance by the Subordinate Judge, Sitamarhi in Title Appeal no. 27/4 of 1979/1980 holding that they have failed to prove their title and possession over the suit land. The plaintiffs filed the suit for declaration of title and confirmation of possession over the lands mentioned in schedule I of the plaint or in the alternative, if dispossessed during the pendency of the suit, for a decree for recovery of possession, stating that on 16.8.1969 defendants 7 and 8 executed a sale deed in their favour and by virtue of the said sale deed they acquired title in the lands mentioned in schedule I of the plaint and came in possession thereof. One Abdul Mazid Nadaf had two daughters, defendant nos 1 and 7 and three nephews defendant nos. 5, 6 and 8. After his death, his two daughters and three nephews inherited the properties left by him. The daughters, Mostt. Aisa and Mostt. Amana got l/3rd share each and the nephews, defendants 5, 6, and 8 got l/9th share each in the said properties. There was a partition between them. Schedule II lands measuring 17 kathas were allotted to defendants 7 and 8. On 16.8.1969 they transferred the said land to plaintiff no. 1. The plaintiffs came in possession. Defendants 1, 5, and 6 however, started interfering with their possession over 7 kathas of land situate in Sitamarhi and 1 katha land situate in Bhabdepur. A proceeding under Sec. 144of the Code of Criminal Procedure was started and converted into a proceeding under Sec. 145of the Code of Criminal Procedure between the parties. The same was decided against the plaintiffs -appellants. Hence the suit.

(2.) Defendant nos. 1 to 4, who have contested the suit, have pleaded that Abdul Mazid Nadaf had only one brother, Abdul Rahim alias Jittu Mian, who died in the life time of Abdul Mazid Nadaf, leaving behind two sons, Md. Taiyab and Md. Nadaf, defendants 5 and 6 respectively. Defendant no. 8 is a creature of the plaintiffs -appellants and an imposter set up by the plaintiffs. They have denied that the two daughters and three nephews succeeded to the properties of Abdul Mazid Nadaf as legal heirs and came in possession of the same. The story of partition, as set up by the plaintiffs -appellants between the daughters of Abdul Mazid Nadaf is false. The plaintiffs vendors had no title in schedule II property. They have also said that Abdul Mazid Nadaf had no male issue. He had only two daughters, Mostt. Aisa and Mostt, Amana. His wife had already died. Aisa was an issueless widow and dependent upon Abdul Mazid Nadaf. Amana was married at Bairgania in a well -to -do family. Abdul Mazid Nadaf executed a will in favour of Mostt. Aisa after consulting his daughter Mostt. Amana and mother and guardian of the two nephews. On the basis of the said will, the two daughters came in possession. Mostt. Aisa came in possession of the schedule II lands. Md. Nadaf and Md. Taiyab, the two nephews of Abdul Mazid Nadaf executed a deed of Ladavi disclaiming any interest in the properties of Abdul Mazid Nadaf under the said deed. Amana got 9 kathas of land of survey plot no. 38 at Sitamarhi and came in possession of the same. Aisa executed a Waqf and dedicated an area of 1 Bigha 19 dhurs land to Jama Masjid, Sitamarhi and herself remained Muttwalli. After the death of Abdul Mazid Nadaf the lands were mutated in her name. Amana had no right, title or interest over the suit land and the sale deed dated 16.8.1969 executed by her in favour of the plaintiff no. I is collusive, bogus and fraudulent.

(3.) The suit was tried in the court of the Munsif (East), Sitamarhi. He dismissed the suit holding that Abdul Mazid Nadaf had no third brother -namely, Manjhi Mian who had a son Md. Hussain Nadaf and he is not the legal heir of Abdul Mazid Nadaf. He also found that the plaintiffs vendors had no right, title and interest over the suit land. The plaintiffs' appeal has been disposed of by the learned Subordinate Judge, Sitamarhi holding that the defendant -respondents have been able to prove possession on the basis of the will executed by Abdul Mazid Nadaf in favour of Mostt. Aisa and Mostt. Amana and the plaintiffs have failed to prove their title and possession.