Doa Jan Bibi Vs Bedana Bibi

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2025:JHHC:10156

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 306 of 2019

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Doa Jan Bibi, aged about 67 years, wife of late Afjal SK, by caste Muslim, by occupation cultivator, resident of village Rampur, P.O. – Khanpur, P.S. – Maheshpur, District – Pakur

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Dost Mohammad, aged about 55 years,

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Ali Ahmad, aged about 55 years, Both sons of late Afjal Sk, by caste Muslim, by Occupation cultivator, resident of village Rampur, P.O. – Khanpur, P.S. – Maheshpur, District - Pakur

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Sanjida Begum, aged about 50 years,

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Samshad Begum, aged about 45 years, Both daughters of late Afjal Sk, by caste Muslim, by Occupation cultivator, resident of village Rampur, P.O. – Khanpur, P.S. Maheshpur, District - Pakur

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… … Plaintiffs/Appellants/Appellants

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Versus

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Bedana Bibi, D/o late Rahman Sk. And W/o Astur Sk.

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Gajoli Bibi, W/o late Rahman Sk. And W/o Halim Sk.

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Jannegar Bibi @ Jahenara Bibi, D/o late Rahman Sk and W/o Abu Bakar

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All resident of village Rampur, P.O. – Khapur, P.S. – Mahespur, District – Pakur

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Nosema Bibi, D/o late Rahman Sk, and w/o Ahiruddin Sk, resident of village – Baukura, P.O. Khapur, P.S. – Mahespur, District – Pakur

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Hawajan Bibi, D/o late Rahman Sk, and W/o Mahiuddin Sk,

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Nauraji Bibi, D/o late Rahman Sk, and W/o Muzaffar Sk, Both resident of village – Gopalpur (Barua Gopal Pur), P.O. Gopalpur, P.S. Murarai, District Birbhum (W.B)

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Yari Seikh

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Karik Sk, Both sons of late Safal Sk

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Gaffar Sk,

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10.Jainul sk,

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11.Kalu bibi,

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12.Phulu Bibi

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13.Lilu bibi All d/o late lohari sk

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14.Pashun bibi, D/o late Safat sk,

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All resident of village – Rampur. P.O. – Khapur, P.S. – Maheshpur, District - Pakur

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… … Defendants/Respondents/Respondents

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellants : Ms. Komal Tiwary, Advocate For the Respondents :

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2025:JHHC:10156

17 /18.03.2025 Heard the learned counsel appearing on behalf of the appellants.

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2. This second appeal has been filed against the judgment dated 15.06.2019 (decree signed on 01.07.2019) passed by learned District Judge – I, Pakur in Civil Appeal No.3 of 2009 whereby the appeal has been dismissed and the judgment dated 30.06.2009 (decree dated 13.07.2009) passed by learned Sub – Judge I, Pakur in Title Suit No.06 of 2003 dismissing the suit has been affirmed.

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3. The learned counsel for the appellants has submitted that although there are concurrent findings of both the courts, but both the courts have not properly examined the hiba-bill-ewaz which was a registered deed no.429 of 1987 and therefore, the judgments being perverse, substantial questions of law be framed and the second appeal be admitted for final hearing.

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4. The learned counsel for the appellants has relied upon the judgment passed by Hon’ble Supreme Court reported in (2009) 6 SCC 160 (Abdul Rahim and Ors. Vs. Sk. Abdul Zabar and Ors.) paragraph 13 to submit that the condition for a valid and complete gift has been enumerated in the said paragraph and in the present case all those conditions are satisfied.

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5. No other point has been argued by the learned counsel for the appellants except with regard to the findings regarding legality and validity of the aforesaid deed.

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6. After hearing the learned counsel for the appellants, this Court finds that the suit was filed seeking declaration of right, title, interest of the plaintiff with respect to the suit property. A further relief was prayed for declaring that the area, boundary, description, and classification in the Deed No.429 of 1987 corresponds to Plot No.270 and not of Plot No.70, and that the insertion of Plot No.70 in the deed was a mistake. Further relief was sought for the confirmation of the plaintiff’s possession over the suit property. A prayer for temporary and permanent injunction was also prayed for.

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7. The case of the plaintiff was that the plaintiff was son-in-law who was married to one of the daughters of Abdul Rahman Sk. namely: Duajan Bibi and Abdul Rahman Sk. was pleased with the plaintiff for

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2

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2025:JHHC:10156

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rendering service to his person and properties and as such said Abdul Rehman Sk., out of love and affection gifted the suit property to the plaintiff and executed the deed of Hiba – bil – ewaj bearing no.429/87 for the suit land in favour of the plaintiff in lieu of ‘jainamaz’ and immediately on execution of the said deed, possession of the suit land was delivered to the plaintiff and since the date of transfer the plaintiff has been in actual physical and exclusive possession and occupation by virtue of his own legal right and title for the suit land. It has further been pleaded on behalf of the plaintiff that the land and house in plot no.270 belonging to said Abdul Rahman Sk., was to be written in the deed of the said Hiba-bil-ewaj but due to in-advertence and mistake of the deed writer, only plot no. ‘70’ was written instead of plot no. 270 which in reality was the plot no.270 in question and was transferred to the plaintiff. The plot no.70 was wrongly mentioned and written by mistake. 8. On the other hand, the case of the defendants was that Abdul Rahman Sk. never transferred plot no.551 or 270, the suit property, to the plaintiff. Rather, the plaintiff manipulated those plots in the deed of hibabil-ewaj without knowledge of the executant in connivance with the deed writer, hence the document was later on cancelled by the executant by deed no.4088 dated 25.09.1987. It has been further pleaded that the plaintiff committed deliberate manipulation in the original deed by inserting the no.’2’ before the figure ‘70’ thus making it ‘270’ and thereafter he tried to possess the plot, but he could not succeed. The suit plots are still in possession of the defendants. It has further been pleaded on behalf of the contesting defendants that the alleged deed of hiba-bilewaj is forged and fabricated.

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9. The learned trial court framed the following issues for consideration:

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“1. Is the suit maintainable in its present form?

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2. Has the plaintiff valid cause of action for the suit?

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3. Is the suit barred by law of limitation?

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4. Is the suit bad for mis-joinder and non-joinder of necessary

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party?

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5. Is the suit hit by principles of waiver, estoppel and

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acquiescence?

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6. Has the plaintiff right, title and interest over the suit land?

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3

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2025:JHHC:10156

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7. Is the Hiba-Bil-Ewaj deed no. 429 valid, genuine and binding on the defendants?

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8 Whether the area boundary description and classification in the deed no. 429/87 resembles with that of the plot no. 270 and not of plot no. 70 and insertion of plot no. 70 in the deed was by mistake?

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9. Is the plaintiff entitled to get relief as claimed for?”

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10. Considering the argument of the learned counsel for the appellants, the issues nos.7 and 8 are important. These issues were taken together by the learned trial court in paragraph 35 as issue nos.6,7 and 8. 11. By considering the oral and documentary evidences, the learned trial court held that the plaintiff had filed a case seeking declaration of right, title, interest over the suit property on the basis of hiba-bill-ewaz being deed no.429 dated 05.12.1986 executed in his favour by Abdul Rahman Sheikh and for a further declaration that the plot no. 70 was written by mistake in place of 270. The learned court recorded that the hiba-bill-ewaz [Exhibit 1] and statement of the witnesses goes to show that plot no.270 was already mentioned in the original deed. There is manipulation and fabrication in the original deed and the said deed has been tampered and no relief could be granted on the basis of tampered document. The learned trial court also recorded that there was no explanation as to how the number ‘2’ before ‘70’ has been inserted in the deed. The hiba-bill-ewaz being no.429 dated 05.12.1986 has been held to be a tampered and fabricated document and it was held that it did not convey any right, title interest in favour of the plaintiff and the issues were decided against the plaintiff.

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12. The learned 1st appellate court was of the view that the issue nos.7 and 8 as framed by the learned trial court were crucial in deciding the appeal. The learned 1st appellate court considered the oral evidence of P.W.6, who was formal in nature and was examined to prove the deed (Exhibit 1) and observed that P.W. 6 did not know hindi language and the deed (Exhibit 1) was in hindi script and he was unable to prove the signature of the writer who had put his signature in hindi.

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13. The learned 1st appellate court further referred to Exhibit 1 and it appeared to the court that there was manipulation in it by inserting ‘2’ before ‘70’. The learned 1st appellate court recorded that P.W. 1 admitted on oath that the plot nos.270 and 551 were found mentioned in

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2025:JHHC:10156

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Exhibit 1 and also recorded that as per the evidence of P.W. 2, the son of plaintiff, the digit ‘2’ was omitted before ‘70’ due to mistake of the deed writer and such mistake was bonafide. The learned court also recorded that as per his evidence, Title Suit No.43 of 2003 filed by defendant no.1 with regard to cancellation of Exhibit 1 was still pending in the court of Sub-ordinate Judge, Pakur and he was fully ignorant as to who had made the insertion or manipulation in Exhibit 1. He was not even aware as to whether hiba-bil-ewaj deed was registered or not.

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14. The learned 1st appellate court also recorded that Exhibit 3 (a) only showed that the plot no.270 was in the name of the recorded tenant namely Safat Sheikh, who was the father of Abdul Rehman and that rent receipt was proved as Exhibit 2 series but rent receipts were issued during the pendency of the suit and not even a specific rent receipt issued prior to filing of the suit was produced. The learned court after scrutinizing the materials recorded that it could be safely concluded that the suit property was not the same as was mentioned in the schedule mentioned in the plaint and ultimately held that the evidences totally brushed aside the plaintiff’s right, title and interest over the suit property, that is, 3 kathas 9 dhurs of plot no.270. The learned court also recorded that P.W. 2 also disputed the area of the suit property by saying that its area was 1 ½ kathas although the suit property was 3 kathas and 9 dhurs. The learned 1st appellate court ultimately dismissed the appeal.

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15. The learned 1^st appellate court upon consideration of materials on record concluded that hiba-bil-ewaj deed [Exhibit-1] was tampered and the property of Exhibit-1, said to be the suit property, was not the same as mentioned in the schedule appended with the plaint and ultimately dismissed the appeal.

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16. So far as the judgment relied upon by the learned counsel for the appellants is concerned, the same does not apply to the facts and circumstances of this case as the basic ingredients to make a valid and complete gift under Muslim law is not in dispute, but in the present case, the entire case was based on hiba-bill-ewaz which was found to be manipulated by both the courts and it was also observed that a suit regarding its cancellation was also pending.

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2025:JHHC:10156

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17. Considering the finding of facts recorded by both the courts in connection with the description/manipulation in hiba-bill-ewaz (Exhibit1), this Court is of the considered view that no substantial question of law is involved in this case as no perversity in the matter of appreciation of evidence by both the courts has been pointed out by the learned counsel. The case is based on facts arrived at by both the courts and there being no perversity, no substantial question of law is involved in this case.

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18. There being no substantial question of law, this second appeal is hereby dismissed.

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19. Pending, I.A, if any, is dismissed as not pressed.

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(Anubha Rawat Choudhary, J.)

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Saurav/

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Doa Jan Bibi v. Bedana Bibi

Case brief

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Doa Jan Bibi v. Bedana Bibi

Case brief

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