CAV JUDGMENT

Date : 22-10-2024 The present petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 20.02.2024 passed by the learned Munsif, Dehri-on-Sone, Rohtas in Execution Case No. 01 of 2013, whereby and whereunder the petition dated 23.01.2014 filed by the petitioners under Order 21 Rules 97 and 99 the Code of Civil Procedure, 1908 (for short ‘the Code’) and also the petitions dated 19.04.2018 and 06.09.2018 have been rejected.

02. The conspectus of the case, as it emerges from the record, is that one Khadim Khan was the ancestor of the petitioners. Khadim Khan was married with Rabia @ Rabia Khatoon and out of the said wedlock, one son, namely Makdum Khan and three daughters, namely Anisha Khatoon, Kaniz Khatoon and Buchun Khatoon were born. Rabia Khatoon died in the year 1955 and after her death, Khadim Khan solemnized marriage with Ashma Bibi @ Ashma Khatoon and out of the said wedlock, Naseema Khatoon was born. Ashma Khatoon died in the year 1974. Khadim Khan died on 24.12.1984 leaving behind Makdum Khan, Anisha Khatoon, Kaniz Khatoon, Buchun Khatoon and Naseema Khatoon as his legal heirs/representatives. Khadim Khan solemnized marriages of her daughters, Anisha Khatoon, Kaniz Khatoon and Buchun Khatoon during his lifetime and all the three daughters are no more. Further, Makdum Khan died on 24.12.2015, leaving behind petitioners and respondent nos. 2 to 5 as his legal heirs/representatives. Petitioner No. 1 is the wife of Makdum Khan and petitioner nos. 2 to 8 are sons of Makdum Khan. Respondent Nos. 2 to 5 are the daughters of Makdum Khan. Respondent No. 1 is the daughter of Khadim Khan. Khadim Khan and Ashma Khatoon died intestate. It further transpires that Khadim Khan had purchased two properties in the name of his second wife Ashma Bibi @ Ashma Khatoon with following descriptions;

(i) A property pertaining to House situated at Ward No. 3/10, Holding No. 442, Area 2 M.S. Khata No. 243, M.S. Plot No. 573, Old Khata No. 140, Plot No. 1111 at Dehri, Dalmiyanagar through registered sale deed dated 25.11.1968 from one Hussaini Bhai.

(ii) A plot having an area of 5 kattha situated at Dehri-on-Sone, District Rohtas, Bihar.

It is claimed by the petitioners that Ashma Khatoon was not having any source of income and entire consideration amount of sale deed dated 25.11.1968 and also the consideration amount of the plot having an area of 5 kattha were paid by late Khadim Khan. Thereafter, Ashma Khatoon orally gifted the property purchased through the registered sale deed dated 25.11.1968 to her husband, Khadim Khan. It is further claimed that after death of his wife Ashma Khatoon, Khadim Khan executed a registered gift deed dated 18.04.1981 in favour of his son, Makdum Khan pertaining to the property purchased through sale deed dated 25.11.1968 and since then Makdum Khan, his heirs and legal representatives are having the possession of the same and have been paying Malguzari Tax.

It further appears that Respondent No. 1 filed a title suit bearing Title Suit No. 129 of 1991 against Makdum Khan for setting aside the registered gift deed dated 18.04.1981 in the court of learned Munsif-2nd Sasaram on the ground that property of the title suit was orally gifted to the respondent no. 1 by her mother, Ashma Khatoon. The learned trial court allowed the said title suit vide judgment dated 20.02.1993 declaring registered gift deed dated 18.04.1981 to be null and void. Being aggrieved by the judgment dated 20.02.1993 and decree dated 25.02.1993 passed in Title Suit No. 129 of 1991, Khadim Khan preferred Title Appeal No. 27 of 1993 and the learned Additional District Judge, Fast Track Court No. 3, Rohtas at Sasaram, vide judgment dated 27.12.2005 dismissed the appeal. However, the learned first appellate court held that both, oral gift as claimed by the respondent no. 1, and registered gift deed dated 18.04.1981 as claimed by the husband of the petitioner no. 1, were not proved. Thereafter, K