Jamal Mian vs (A). Bibi Sahida Begam
2024 Latest Caselaw 4729 Jhar

Jharkhand High Court

Jamal Mian vs (A). Bibi Sahida Begam on 1 May, 2024

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             S. A. No. 200 of 2016

1. Jamal Mian
2. Kamruddin Mian
3. Afzal
4. Kajim Mian                                     ....    ....     Appellants
                      Versus
1(a). Bibi Sahida Begam                           ....   ....    Respondent
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. R.N. Sahay, Sr. Advocate Mr. Yashvardhan, Advocate For the Respondents : Mr. Ayush Aditya, Advocate

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Oral Order 13 / Dated : 01.05.2024 Heard the parties.

1. Instant second appeal has been preferred against the judgment of affirmance by which Title Appeal No. 45/2004 filed by the defendants/appellants has been dismissed.

2. Plaintiff filed the suit for declaration of right, title and interest over the suit property and if found dispossessed during pending case, for recovery of possession and injunction over 08 decimal of land of Plot No. 527 appertaining to Khata No. 128 as detailed in Schedule-B of the plaint.

3. The claim of title of the plaintiff is based on sale deed executed on 20.05.1970 (Ext.1).

4. The defendants claim title over the suit land on the basis of an agreement of sale executed by the Bodhan Bhuiyan on 26.11.1968 after which he came into possession over the suit land and further sale deed was executed on 04.11.1972 (Ext.B/1).

5. Learned Trial Court on the basis of the pleadings of the parties has framed the following main issues:

Issue No. 5-- Has the plaintiff title and possession over the suit property? Issue No. 6-- Whether the plaintiff is entitled to a decree as prayed for?

6. Learned Trial Court decreed the suit by recording a finding of title and possession in favour of the plaintiff.

7. Learned First Appellate Court dismissed the appeal recording the concurrent finding of fact in favour of plaintiff/respondent. The First Appellate Court

rejected the plea of part performance under Section 53A of the Transfer of Property Act on the ground that doctrine of part performance can be applied where it is shown that there is contract as evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Since the respondents/defendants had not produced the agreement on which the claim of Section 53A of the Transfer of Property Act was made. Therefore, appeal was dismissed.

In view of the concurrent findings of fact on title and possession in favour of the plaintiffs on the basis of registered sale deed, executed before the sale deed executed in favour of defendants, I do not find any infirmity in the impugned judgement and decree. The arguments raised on behalf of the appellants do not disclose any substantial question of law for admitting the Appeal.

Second Appeal accordingly stands dismissed.

(Gautam Kumar Choudhary, J.) AKT/Satendra

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