CAV JUDGMENT

This First Appeal has been filed against the Judgment & order dated 14.03.2011 and decree dated 28.03.2011 passed by the learned Sub-Judge 1st, Bhagalpur in Title Suit No. 454 of 2009 whereby the plaintiff-appellant's suit was dismissed with cost.

2. For the sake of convenience, the parties where required shall be referred to in terms of their status before the learned trial court.

3. The plaintiff/appellant filed the suit praying for the declaration of their title, rights, and interest over the disputed land as listed in Schedule 1 of the plaint. They also sought a decree against the defendant for recovery of possession of the property in Schedule 2 of the plaint. Additionally, the plaintiff/appellant sought an order of permanent injunction against the disputed land and requested compensation for the expenses of the case, among other reliefs.

4. The plaintiff/appellant claimed the aforesaid relief alleging that the plaintiff-appellant purchased the suit land with a total area of 11 kathas 18 dhurs, equivalent to 8,568 sq. ft., situated at Mohalla Barahpura, Pranwati Lane, P.S. Kotwali (Ishaquechak), District Bhagalpur, from its absolute owner Md. Jiyauddin, son of Late Moinuddin, by a registered sale deed dated 12.03.2003 executed for valuable consideration. It was further averred that the said Md. Jiyauddin was the husband of the sole defendant-respondent, Bibi Mehnaj Begum, and that the plaintiff-appellant was duly placed in peaceful possession of the property upon registration of the deed.

5. The plaintiff/appellant asserted that the disputed land formed part of the ancestral estate of Md. Jiyauddin, who had acquired it upon an amicable family partition and also through an oral hiba (gift) from his maternal aunt, Bibi Najmun Nisha. The said Md. Jiyauddin, being in absolute ownership and possession of the property, executed a registered sale deed dated 12.03.2003 in favour of the plaintiff-appellant for valuable consideration, and possession of the property was duly delivered to her upon registration of the deed. However, the learned counsel for the defendant-respondent opposed this version of the facts, contending that Bibi Najmun Nisha never transferred the land to Md. Jiyauddin, and instead, it was Bibi Mehnaj Begum, the sole defendant in this case, who had acquired the said land from Bibi Najmun Nisha by way of an oral hiba. According to the defendant’s case, Md. Jiyauddin had no title or ownership in respect of the disputed property, and therefore, the sale deed executed in favour of the plaintiff-appellant conveyed no valid right or interest. The competing arguments concerning the mode of acquisition of Bibi Najmun Nisha’s property form an essential issue in this case because it is necessary to see whether Mohammad Jiyauddin had received the disputed property as heir and through oral gifts from Najmun Nisha or not.

6. As recorded in paragraph 13 of the impugned judgment, the undisputed facts of the case reveal that the common ancestor, Abdul Gaffar, was the absolute owner of 96 kathas of land, each katha measuring 720 sq. ft. Upon his demise, the property devolved upon his heirs: two sons, Makouddin and Moin Gaffar, and four daughters, Bibi Badrun Nisha, Bibi Naima Khatun, Bibi Najmun Nisha, and Bibi Husnara. Their respective shares are as follows: Makouddin received 24 kathas, Moin Gaffar received 24 kathas, and each of the four daughters received 12 kathas. It further appears that Bibi Badrun Nisha had only one child, Bibi Mehnaj Begum, who is the sole defendant-respondent in this case. Bibi Husnara, on the other hand, had two sons, Md. Jiyauddin and Md. Jasimuddin, and two daughters, Nargis Jahan and Wismil Jahan. Bibi Mehnaj Begum was married to Md. Jiyauddin, the son of Bibi Husnara. It is pertinent to note that Bibi Najmun Nisha did not have any children, and she died, leaving behind no direct heir. This factual matrix concerning ownership and inheritance is further illustrated below by way of a fam