The central legal point established in the judgment is the interpretation of the Hiba-Bil-Ewaz deed and the application of Mohammandan Law to determine the rights and interests of the parties in the disputed property.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Ayush Aditya, learned counsel appearing for the appellants and Mr. Birendra Kumar, learned counsel appearing for the contesting respondents.

2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 18.07.2012 and the decree following thereupon signed on 24.07.2012, passed in Title Appeal No. 07 of 2007, by the learned District Judge-I, Pakur, dismissing the said appeal and thereby confirming the judgment dated 03.06.2007 and the decree signed on 10.07.2007, passed in Title Suit No. 40 of 1993, by the learned Subordinate Judge-I, Pakur.

3. The Title Suit No. 40 of 1993 was instituted by the respondent-plaintiff for declaration that the plaintiffs and proforma defendant have got their complete right, title and interest in the suit property and further declaration that the registered deed of Hiba-Bil-Ewaz No. 573 of 1945 is legal and valid and the defendant 1st party, 2nd party and 3rd party have no right, title or interest in the suit land and that any subsequent deed or document if created is/are illegal, void and ineffective and for recovery of possession and cost of the suit. The said suit, on contest, was decided and the defendants were directed to restore the possession of the suit lands to the plaintiffs within two months from this order, failing which, the plaintiffs have liberty to get the decree executed through the process of the court.

4. The plaintiffs case in brief is that Legaran Bibi pre-deceased, Meharjan Bibi and thereafter Meharjan Bibi succeeded her share in above mentioned land and her properties came under her exclusive possession and ownership. Meharjan Bibi executed on Hiba-Wil-Ewaj in favour of Meraj Hussain on 16.05.1945 and it was registered on 05.07.1945 bearing Deed No. 573 of 1945 and by virtue of said deed Meraj Hussain acquired the suit property and came in actual possession of the same immediately after execution of said deed and after her death the plaintiff and proforma defendants occupied the land in dispute peacefully without any objection from any corner. Miraj Hussain died in year 1985. It is further case of the plaintiffs that Miraj Hussain generally resided in village-Aatgram, P.S. Nalhatti and often used to take help of uncle Hamjad Sk. and Gurjar Sk. for cultivating and harvesting the land in dispute. Occasionally he use to stay at village Salla, P.S. Pakuria during season. After death of Miraj Hussain in 1985, plaintiff No. 1 Nurul Hoda for him and on behalf of co-sharers cultivated the suit land during year 1986 to 1988. In 1989 Hamjad Sk. died and after his death in 1990, the defendants first set dispossess the plaintiffs and proforma defendants from the suit land on false claim without any right, title or interest.

5. The contesting defendants have stated in their written statement that the said Hiwa-Wil-Ewaj 573 of 1945 is illegal document, invalid and inoperative in the law they have also stated that the said Meharjan Bibi had cancelled deed no. 573 of 1945 by a registered cancellation deed dated 04.07.1949. They have also stated that the deed No. 573 of 1945 was obtained by playing fraud on Meharjan Bibi. They have stated that being successor and by inheritance, they have come in possession of land in dispute and the statement of plaintiffs for possession of it since 1945 is false and concocted story.

6. Mr. Ayush Aditya, learned counsel appearing for the appellants submits that it is an admitted fact that the suit property was recorded in the name of seven persons and only Meharjan Bibi has executed the Heba-Bil-Ewaz and without formulating the question of law, the learned trial court has decided the suit, which was affirmed by the learned appellate court, without framing the substantial question on that point. In that view of the matter, there is requirement to frame the substantial question of law in the second appeal and to buttress his argument he relied in the case of Somakka (Dead) by LRs. vs. K.