Jharkhand High Court
Zaleel Mian & Others vs Sakoor Mian & Another on 22 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
S. A. No. 333 of 2015
......
Zaleel Mian & Others ........... Appellants
Versus
Sakoor Mian & Another ........ Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
.......
For the Appellants : Mr. Pankaj Srivastava, Advocate
For the Respondents :
.......
07/22.07.2021
Heard, learned counsel for the appellants, Mr. Pankaj
Srivastava.
Learned counsel for the appellants has submitted that he has
filed Vakalatnama on 19.07.2021 on behalf of the appellants.
Learned counsel for the appellants has submitted that second
appeal has been preferred against the judgment dated 31.03.2015
and decree signed on 10.04.2015 passed by learned District Judge-I,
Garhwa in Title Appeal No.28/2008, whereby the learned lower
appellate court has partly allowed the appeal and reversed the
finding passed by the learned trial court vide judgment dated
30.09.2008 and decree signed on 17.11.2008 passed by learned Sub-
Judge-III, Garhwa in Title Suit No.64/1996.
Learned counsel for the appellants has submitted that original
plaintiff, Rasool Mian purchased land on 18.02.1964 vide Sale Deed
No. 972 from one Bifni Bibi. Subsequently on 01.06.1988, brother
of Rasool Mian namely, Ramjan Mian executed two sale deeds vide
Sale Deed Nos. 4419 and 4420 in favour of defendant nos.1 & 2
namely, Sakoor Mian and Sobrati Mian, both sons of Sattar Mian
from contractual marriage with Benzir, who is sister of Bifni Bibi,
thereafter, a settlement took place between the parties and it was
decided that two sale deeds will be executed; one by Rasool Mian
(plaintiff) returning the entire land purchased by him from Bifni Bibi
to the defendant nos.1 and 2 and then the defendant nos.1 & 2 will
return the entire property purchased by them from Ramjan Mian to
Rasool Mian (Plaintiff). But, cunningly, in the sale deed no. 4769
dated 09.06.1988, the suit property has wrongly been incorporated
by the defendants in collusion with the deed writer to the extent of
their three plots i.e. one plot with regard to Makan Sahan and two
plots with regard to Gharbari, which were never the purchased land
of Rasool Mian in the year 1964 from Bifni Bibi, mausi of defendant
nos.1 &2, thus the title suit was filed before the learned Sub-Judge-
III, Garhwa, who has held that fraudulently the suit land has been
incorporated in sale deed no.4769 dated 09.06.1988 (Exhibit-A). The
learned lower appellate court though has not given a clear cut
finding with respect to the same, but held that sale deed no.4769
dated 09.06.1988 is valid only to the extent of 0.12 acre suit land
and rest 0.12 acre of land retained by the plaintiff and the same was
due to mistake and in the operative part, the learned lower appellate
court has held that 0.12 acre of land of suit land has been transferred
to the defendants by consent of all the co-sharer namely Rasool
Mian (plaintiff), Ramjan Mian (plaintiff's own brother) and Rojani
Bibi (plaintiff's own sister). Defendants have entered into the shoes
of co-sharer and got half share of the suit land through transfer deed
and thus defendants were in possession of 24 decimals of land and
directed the defendants to deliver the possession of 12 decimals of
suit land to the plaintiff within two months as boundary of 12
decimals of land of plaintiff and 12 decimals of the defendants is not
specific and in the interest of justice, to avoid future litigation and
multiplicity of suit, possession of 12 decimals of land of the plaintiff
would be delivered to them by defendants as the execution of decree
of a partition suit.
Learned counsel for the appellants has submitted that it was
incumbent upon learned lower appellate court to frame specific issue
and gave finding. The learned lower appellate court has though
reversed the judgment of learned trial court, but has not given a
categorical finding with regard to the validity of the sale deed
no.4769 dated 09.06.1988, which ought to have been declared a
result of fraudulent act.
Under the aforesaid circumstances, let the appeal be admitted
of following substantial question of law:
"Whether the finding recorded by the learned lower appellant
court with regard to the sale deed no.4769 dated 09.06.1988 is
proper in accordance with law ?"
Appellants are at liberty to frame other and further substantial
question of law at the time of hearing.
Let notice be issued to the respondents i.e. (1) Sakoor Mian
and (2) Sobrati Mian, both sons of Late Sattar Mian, Resident of
Village - Kanchanpur, P.O. & P.S. - Ranka, District - Garhwa, under
both process i.e. under registered cover with A/D as well as under
ordinary process, for which requisites etc. must be filed within a
period of two weeks.
In the meantime, let the L.C.R. be called for.
(Kailash Prasad Deo, J.)
Sunil-Jay/-
