1APPEAL FROM ORIGINAL DECREE NO. 212 OF 1976 ---- Against the judgment and decree dated 31.01.1976, passed by Sri S.P. Dwivedi, Sub-Judge, Aurangabad, in Title Suit No.87/165 of 1971/73 ……. 1. Ashok Kumar Agarwal 2. Rajan Prasad Agarwal 3. Hiranya Garbh Agarwal 4. Pradeep Kumar Agarawal 5. Anil Kumar Agarwal All sons of Makhan Lal Agarwala 6. Smt. Sushma Agarwal W/o Dwarika Das Agarwal 7. Smt. Sukhda Agarwal, w/o Hanuman Pd. Agarwal 8. Smt. Rani Agarwal, w/o Phagu Lal Agarwal 9. Kumari Rashmi Agarwal, D/o Makhan Lal Agarwala 10. Smt. Bimla Agarwal, w/o Makhan Lal Agarwal All residents of Aurangabad, P.S. Aurangabad, District Aurangabad. ……Plaintiff-Appellants versus 1. Bibi Zohra, daughter of Abdul Rahim alias Chand Mian and wife of gulam Murtaza, resident of Muhalla Sarai Gaya at present at Muhalla Sarai, P.S. Aurangabad, District Aurangabad. 2. Shrimati Anchi Devi, wife of Basant Ram, resident of MuhallaTekari, village Shahpur, P.S. Aurangabad, District Aurangabad. …Defendants-Respondents. ….. For the Appellants : M/s Krishna Prasad Singh and Bhanu Pratap Singh,Advocates. For the Respondents: M/s L. N. Das and Sidhendra Narayan Singh, Advocates. P R E S E N T THE HON'BLE MR. JUSTICE S.NAYER HUSSAIN -------- S.N. Hussain,J. This appeal has been filed by the sole plaintiff-appellant against the judgment and decree dated 31.01.1976, by which the learned Subordinate Judge, Aurangabad, dismissed Title (Partition) Suit No. 87 of 1971 (165/1973), which was filed by the plaintiff-appellant. 2. The aforesaid suit was filed by the sole plaintiff-appellant Makhan Lal Agrawal against Bibi Zohra and Smt. Anchhi Devi (defendant-respondents no.1 - 2 - and 2, respectively) for the following reliefs with respect to the suit property, namely, a house with Sahan on four decimals of land of plots no. 877 (part) (0.3 decimals) and 884/1432 (part) (0.1 decimals) of Khata no.156, Touzi no. 4858, Thana No.560 within Aurangabad Police Station in the district of Gaya (old) with boundary given in Schedule 1 of the plaint :- (a) Preliminary decree for partition of 3/8th share ( 6 annas out of 16 annas) be passed in favour of the plaintiff and a separate Takhta of 6 annas of the plaintiff of the property in suit be separately carved out by metes and bounds by appointment of a Commissioner and on its confirmation final decree be passed. (b) Cost of suit be saddled on the defendants. (c) Any other relief or reliefs be given to the plaintiff, for which the Court thinks him entitled to. 3. The claim of the plaintiff was that the suit properties along with several other properties belonged to Hassan Ali, who had five sons, namely, (i) Saheb Ali, (ii) Raja, (iii) Ghisa, (iv) Bahadur and (v) Doman and a daughter Mostt. Poli, out of whom Saheb Ali died leaving behind a son Khuda Buksh and hence after death of Hassan Ali they were recorded in the cadastral survey khatian and the share of Mostt. Poli in the suit properties was 2 annas. It was also claimed by the plaintiff that, thereafter, the said heirs partitioned the entire land of Hassan Ali, in which Mostt. Poli got 10 decimals of plot no.887, which, after her death, devolved upon her three sons Abdul Rahim alias Chand Mian, Abdul Aziz and Rasool Buksh, who also partitioned the said land among themselves, in which Abdul Rahim alias Chand Mian got 3 decimals of plot no.887 and subsequently he acquired the adjacent 1 decimal of plot no.884/1432 and amalgamated them. It is - 3 - also claimed by the plaintiff that after the death of Abdul Rahim alias Chand Mian, his said land devolved upon his widow Bibi Hamidan, his daughter Bibi Zohra and his two nephews Faiyaz Ahmad and Neyaz Ahmad, both sons of Abdul Aziz as per the provision of Mohammedan Law applicable to them. The plaintiff also averred that as per the provision of Mohammedan Law, the widow inherited 2 annas share and the sole daughter, in absence of any other issue, inherited 8 annas share and the remaining 6 annas was inherited by the said nephews, who sold it to the plaintiff by registered deed dated 17.07.1971(Ext. 1). Hence the plaintiff claimed partition of his said 6/16th share in the suit proper Genealogical Table 4. Defendant no.1 Bibi Zohra filed her written statement in the said suit admitting the said genealogy of the family and partition among the heirs of Hassan Ali, but she contradicted the subsequent claim of the plaintiff stating that Most. Poli was allotted 9 decimals of plot no.887, which was adjacent to 3 decimals of ghairmazarua land of plot no.886, which she amalgamated with her 9 decimals of land and hence in the survey khatian the said 3 decimals of plot no.886 was recorded in sole occupation of Most. Poli. But since the said portion of plot no.886 was ghairmazarua land and the landlord wanted to settle it to some other persons, he gave the Sahan strip of plot no.884/1432 to Most. Poli in lieu of aforesaid land - 4 - of plot no.886. It is also stated that after death of Most. Poli, her three sons partitioned the house with Sahan among themselves and the suit land fell into the share of Abdul Rahim alias Chand Mian, which is apparent from the registered deed of Bai mokassa (Ext. F). It is also claimed that Abdul Rahim alias Chand Mian gave the suit land to his wife Bibi Hamidan in lieu of dower debt by the said registered deed of Bai mokassa dated 29.10.1946 (Ext. F) and put her in possession of the same as absolute owner thereof and subsequently he died in the year 1950 and since then the said Bibi Hamidan, who was mother of defendant no.1, dealt with the property as absolute owner and paid rent and taxes etc. and after her death in 1965 the name of defendant no.1 was mutated in her place. It is also claimed by defendant no.1 that after transferring the suit land to his wife, the aforesaid Abdul Rahim alias Chand Mian had no interest left in the suit property and hence her brother or nephews would legally have no share, right, or interest in the suit properties, which had fully devolved upon Bibi Hamidan and after her death upon defendant no.1 and hence Faiyaz Ahmad and Neyaz Ahmad having no right, title or interest in the suit property, the sale-deed executed by them could not legally confer any right, title or interest in the plaintiff with respect to the suit property. 5. Defendant no.2 Anchhi Devi also filed her written statement in the suit claiming that the suit was not maintainable, was barred by principle of waiver, estoppel and acquiescence and was also barred by the provisions of Limitation Act and Specific Relief Act and the plaintiff had no cause of action in the suit land as he or his predecessor in interest had never been in possession of any portion of the suit land although several 12 years have passed and in the circumstances the plaintiff very cleverly filed this suit for declaration of his title and recovery of possession in the garb of a partition suit, without even paying any ad valorem court - 5 - fee. Defendant no.2 adopted the case of defendant no.1, but also added that defendant no.1 agreed to sell the suit premises to defendant no.2 and, accordingly, a registered agreement for sale dated 29.06.1971 (Ext. B) was executed by them, whereafter defendant no.1 sold the suit house to defendant no.2 by registered deed of sale dated 23.07.1971 (Ext. C) and transferred her right, title and interest in the suit property to defendant no.2, who, thereafter, has become the absolute owner in exclusive possession of the suit property. 6. Considering the respective pleadings of the parties, the learned trial court framed the following issues for deciding the title suit :- (i) Is the suit as framed maintainable ? (ii) Has the plaintiff got a cause of action for the suit ? (iii) Is the suit barred by limitation ? (iv)Is the suit barred by the principles of estoppel, waiver and acquiescence ? (v) Is the suit barred under the provisions of section 34 of the Specific Relief Act and Order 2 Rule 2 of the C.P.C. ? (vi) Have Faiyaz Ahmad and Neyaz Ahmad, the vendors of the plaintiff right, title and interest in the suit property ? (vii) Did the plaintiff acquire any right, title and interest in the suit property by virtue of the sale deed Ext. 1 dated 17.07.1971 executed by Faiyaz Ahmad and Neyaz Ahmad ? (viii) Had Abdul Rahim @ Chand Mian executed a valid Bai mokassa (Ext.F) in favour of his wife Bibi Hamidan and did she become absolute owner of the suit property by virtue of the same ? - 6 - (ix) To what relief or reliefs, if any, is the plaintiff entitled ? 7. After hearing the arguments of learned counsel for the parties and also after considering the pleadings and evidence of the respective parties, the learned Subordinate Judge, Aurangabad dismissed Title (Partition) Suit No.87 of 1971 on contest with cost by his judgment and decree dated 31.01.1976 after arriving at the following findings :- (a) Issues no. 1,3 and 4 were not pressed and no defect was found in the frame of the suit. Suit was not barred by limitation. Suit was not barred by estoppel, waiver and acquiescence. (b) It does not come out from the compromise petition, which accompanied the decree (Ext. O) of the earlier suit that Bai mokassa (Ext. F) was a farzi and sham transaction. Defendant no.1 was not required to mention in her written statement about the oral gift of her mother with respect to the suit house as she had already got absolute right over the suit house by way of the decree passed in the earlier suit bearing Title Suit No. 211 of 1965(Ext.4). (c) An admission made in the previous suit is not a conclusive evidence against a party and the party can very well show that the admission was wrong. (d) There is no evidence before the Court to believe the version of the plaintiff that the mortgage deeds (Exts E and E/2) were farzi and sham. (e) Due to non-mention of Bai mokassa by D.Ws. 9,10 and 19, their evidence cannot be discarded as it might not have been in their knowledge and they specifically proved the possession of Chand - 7 - Mian, Bibi Hamidan and defendant no.1 as living in the house which they had seen. (f) The deposition of P.W.11 with regard to deed of Bai mokassa (Ext.F) claiming it to have been executed as showy document by Chand Mian to save himself from Mahajan on the advise of the deed-writer is absolutely unreliable as he even failed to say as to who were the creditors of Chand Mian and how much loan had incurred and what was the extent of dower debt. (h) The allegation of Hasuli having been got prepared in lieu of dower debt and the evidence of the goldsmith (P.W.11) cannot be relied upon as according to the statement of the goldsmith, it was prepared even before the marriage of Chand Mian when there was no occasion for any dower debt. (i) Even the plaintiff (P.W.9) admitted that he was not present at the time of execution of the deed of Bai mokassa (Ext. F) and hence he cannot be said to have any personal knowledge about the same. (j) The deed of Bai mokassa (Ext.F) is not a farzi and sham document rather it was a legal and valid document executed by Abdul Rahim alias Chand Mian in favour of his wife Bibi Hamidan, whereafter the said Bibi Hamidan became absolute owner of the suit property by the compromise decree (Ext. O and Ext.7). Defendant no.1 Bibi Zohra became the absolute owner of the suit house and, thereafter, she had full right to sell the entire suit house to defendant no.2 Anchhi Devi and hence sale-deed (Ext.C) by defendant no.1 in favour of defendant no.2 with respect to the suit - 8 - land was a legal and valid document and the evidence fully proved that after her purchase defendant no.2 Anchhi Devi came in possession of the suit premises. (k) Faiyaz Ahmad and Neyaz Ahmad had no title over the suit property and it was well proved by D.Ws. 9,10,15,16 and 19 that they never came in possession of the suit house nor they ever lived in the same in their own right, whereas, no chit of paper has been filed on behalf of the plaintiff to show his possession. (l) It has come in evidence that Faiyaz Ahmad and Neyaz Ahmad reside at Aurangabad but they have not been examined by the plaintiff in support of his case although the plaintiff claims his title through them. (m) Ext. 1 sale-deed dated 17.07.1971 executed by Faiyaz Ahmad and Neyaz Ahmad in favour of the plaintiff is not a valid document and it did not confer any right, title and interest in the plaintiff. (n) The notices Ext. 2 series indicate that the plaintiff had also filed a petition in the Municipality for mutation of his name with respect to the suit house, but it was never allowed. (o) Merely because the eastern portion of the house was locked at the time when the photograph was taken, it cannot be presumed that either it was vacant or it was in possession of the plaintiff. (p) From the evidence of the parties, it does not come out that the plaintiff ever came in possession of the suit house. (q) Faiyaz Ahmad and Neyaz Ahmad had no right, title and interest in the suit property and the plaintiff did not acquire any right, title and - 9 - interest in the same by virtue of the sale-deed dated 17.07.1971 Ext. 1 executed by Faiyaz Ahmad and Neyaz Ahmad in favour of the plaintiff. (r) Abdul Rahim alias Chand Mian had executed a valid deed of Bai mokassa (Ext.F) in favour of his wife Bibi Hamidan and she became absolute owner of the suit property by virtue of that deed of Bai mokassa. (s) Plaintiff has got no cause of action for the suit and he is not entitled to get any relief. 8. Against the aforesaid judgment and decree of the learned court below, the instant first appeal (F.A. No.212 of 1976) has been filed by the plaintiffs- appellants whose learned counsel raised the following arguments : (i) The learned Subordinate Judge has failed to appreciate the crucial points which are involved in the suit and has applied wrong perspective in application of his mind. (ii) In written statement filed by respondent no.1 in Partition Suit No. 211 of 1965 she had taken the plea that deed of Bai mokassa (Ext. F) was merely a farzi transaction and it was brought only to avoid the payment of money to the creditors of Chand Mian and it was never acted upon but in this suit she has taken the plea that Bai mokassa (Ext.F) was a valid and genuine document, therefore, the onus lies upon her to prove that the said statement made in written statement in Partition Suit No. 211 of 1965 was not true and erroneous and was made without knowledge or due to ignorance. But in this case respondent no.1 has not been able to discharge the - 10 - said onus. On the other hand she has stated in her evidence that she had taken this plea in order to defeat the claim of Mubarak Mian ( her maternal uncle). (iii) Since earlier respondent no.1 had taken the plea that Bai mokassa was a farzi transaction therefore in this case she cannot take stand that the Bai mokassa was a valid document because principle of estoppel (section 115 of the Indian Evidence Act) will apply against her. Further in this suit sections 17,18, 21,32 and 58 of the Indian Evidence Act will also be applicable. (iv) No document or any evidence was brought by the respondents to show how the suit property which was in the name of Bibi Hamidan went to Bibi Zohra because according to Mohammedan Law a daughter of a deceased mother cannot be the absolute owner of her entire property. In the judgment it has been stated that Bibi Zohra became absolute owner through compromise petition which is Ext. O and Ext. 7 but it is very strange that this stand was not taken at all by Bibi Zohra either in her written statement or in her evidence and this was not the case of the parties, and as such a third case was made out by the court below itself. . (v) In the compromise petition filed in Partition suit No. 211 of 1965 no where it has been said that Bibi Zohra got absolute ownership through this compromise petition on the contrary it was stated that the defendants of that partition suit who were the sons of Mobarak Mian brother of Bibi Hamidan had neither title nor possession in the disputed house. So the compromise petition conclusively - 11 - proves that the Bai Mokassa was a farzi transaction. Had it been genuine then Mobarak brother of Bibi Hamidan must have inherited half interest of Bibi Hamidan, because Bibi Hamidan died leaving behind only one daughter Bibi Zohra and one brother Mobarak Mian so the compromise petition was sufficient to make the Bai mokassa a farzi transaction. (vi) Bibi Zohra in her written statement in Partition Suit No. 211 of 1965 (Ext.4) had pleaded the story of oral gift made in her favour by her mother Bibi Hamidan and on this plea she claimed absolute ownership and barred Mobarak Mian from inheriting half share of Bibi Hamidan. So this was very important point for Bibi Zohra, because her absolute ownership was based on this oral gift such important stand which was the basis of title of Bibi Zohra must have been taken in the written statement of the present suit, but it is surprising that no such stand was taken by her and she is conspicuously silent in her evidence too. It is very strange that the court opines in para no.24 of the judgment that Bibi Zohra was not required to mention the story of oral gift in the suit. (vii) In paragraph no.13 of the written statement filed by Bibi Zohra it has been stated that Bibi Zohra inherited the suit property after death of her mother Bibi Hamidan so the story of oral gift as well as the finding of the court, that Bibi Zohra got absolute interest by compromise goes away. The deed of Bai mokassa was executed in the year 1946 and Chand Mian husband of Bibi Hamidan died in year 1950 in between this period the name of Bibi Hamidan was not - 12 - entered either in Chawkidari Register or in the Municipality and Bai mokassa remained as a sham deed and only after death of Chand Mian when Bibi Hamidan inherited the house, her name was entered in Chowkidari Register and Municipality. In order to prove the effectiveness of Bai mokassa it was the duty of defendants to examine the attesting witnesses of the deed, but the defendants failed to produce any such attesting witness, whereas on the other hand the plaintiff examined P.W.12 Md.Hanif who was an attesting witness of the deed and he said that Bai mokassa was a farzi transaction. (viii)Deed of sale was executed by Bibi Hamidan after the death of Chand Mian when Bibi Hamidan inherited 1/8th share out of the property of Chand Mian and the total area being 4 decimals, she rightly sold her share of ½ decimal only. Furthermore, the mortgagees of all the Rehan deeds are local persons residents of Aurangabad but none of them have been examined to prove the validity of its execution, its effectiveness or endorsement. None of the persons who endorsed the Rehan deeds were examined. No body was examined to prove the payment of the Rehan money or repayment by the mortgager to the mortgagees. The endorsement was apparently sham and bogus which appears from oral evidence. It is surprising that the person who allegedly made the endorsement was present in court but he was not examined as it will be clear from the evidence of Md. Sayeed D.W. 14. Moreover, the Rehan deeds were with respect to part of the suit property which is clear - 13 - from evidence of P.W.8 at para 4. (ix) Bibi Zohra herself admitted that after death of Chand Mian, Neyaz Ahmad and Faiyaz Ahmad were living in the house. (DW 15 at para 15). It was also admitted that Neyaz Ahmad and Faiyaz Ahmad were the sons of Bibi Zohra’s paternal uncle and so it was natural that they might have gone in the camp of Bibi Zohra after receiving their consideration money from the plaintiff. Faiyaz Ahmad and Neyaz Ahmad were Rickshaw pullers and therefore it was very easy for the defendants to gain them over and for this a petition was filed in court on behalf of the plaintiff. Plaintiff had given their names in the list of witnesses which was admitted by the plaintiff in his deposition but they did not come which is clear from para 9 of the deposition of the plaintiff (P.W.9). Hence, the judgment and decree passed by the learned Subordinate Judge, Aurangabad are against the law and evidence as well as against the facts and circumstances of the case and as such this first appeal is fit to be allowed. 9. In support of their pleadings with respect to the aforesaid issues, the plaintiffs-appellants had produced altogether 12 witnesses, out of whom P.W.1 Md. Jahurul Haque was the deed writer of plaintiff’s registered sale-deed dated 17.07.1971 (Ext.1); P.W.2 Md. Amin proved the notices from the Chairman of the Municipality (Exts.2- 2/B); P.W.3 Gulam Rasool was nephew of Bibi Hamidan, who supported the sale-deed (Ext.1); P.W.4 Nisar Ahmad Khan was the attesting witness of sale-deed dated 17.07.1971 (Ext. 1); P.W.5 Md. Zahoor proved the L.T.I. of defendant no.1 and signature of her Advocate on the vakalatnama (Ext.3) in the other case bearing P.S. No. 2311 of 1965 which was much earlier filed by - 14 - Mobarak Mian brother of Hamidan against Zohra, which was compromised; P.W.6 Ali Manzar Khan proved the written statement of defendant no.2 (Ext.4) filed in the other case bearing P.S. No. 211 of 1965; P.W.7 Ramdas Gupta and P.W.8 Deo Nandan Sao stated about the share and possession of Faiyaz and Neyaz ; P.W.9 Makhan Lal Agrawal was the plaintiff himself, who supported his pleadings but could not bring his vendors to depose in the suit; P.W.10 Girish Chandra Karan was a photographer and proved Exts. 5 & 5/A i.e. photograph and negative of the house, P.W. 11 Mahadev Ram was a goldsmith and stated that Abdul Rahim alias Chand Mian had got a Hasuli worth Rs.500.00 made 30-35 years back for his wife Bibi Hamidan in lieu of dower debt; P.W.12 Md. Hanif claimed to have worked with the deed-writer, who prepared the deed of Bai mokassa (Ext.F) executed by Abdul Rahim alias Chand Mian in favour of his wife Bibi Hamidan, which he claimed to be showy only to save the property from Mahajan. The same witness is also attesting witness of Ext. F, the Bai mokassa deed, in which his signature is marked as Ext. 6. 10. The plaintiffs-appellants relied upon documents produced by them, namely, Ext. 1 sale deed dated 17.07.1971 executed by Faiyaz and Neyaz Ahmad in favour of the plaintiff; Exts.2, 2A and 2B notices from the Chairman of the Municipality from 1971 to 1975; Ext. 3 Vakalatnama of defendant no.1 in an earlier Partition Suit No.211 of 1965 filed by Mobarak; Ext.4 written statement of defendant no.1 in the aforesaid partition suit claiming Bai mokassa (Ext. F) to be