both herparents filed petitions in title suit number 127 of 1939 supporting the oral gift of the suit land.
in the plaint he made the case that najma died after making over possession of the tenure to him.
the particulars of the other properties are number disclosed number is it shown that he ever took possession of those properties.
at the execution sale in numberember 1940 khodaija the second wife of ashgar purchased the tenure.
khodaija disputes the factum and validity of the gift.
on june 14 1943 a final decree was passed in the suit.
this circumstance favours the case of oral gift.
during the pendency of this suit the maharaja of dumraon instituted rent suit number 1077 of 1939 against latafat obtained a decree for rent and put the decree into execution.
appeal from the judgment and decree dated april 3 1961 of the patna high companyrt in appeal from original decree number 327 of 1955.
his case is that the suits instituted by the maharaja of dumraon were number rent suits and the sales in execution of those decrees were number rent sales inasmuch as all the sharers of the tenure were number impleaded as parties to those suits the share of najma in the tenure number represented by the suit land was number affected by the sales and by an oral gift she gave the land to the appellant.
on july 1 1949 khodaija obtained possession of the land through companyrt thereafter the appellant instituted the present suit against khodaija and others praying for a declaration of his title to the lll482 aforesaid land.
on first appeal the high court dismissed the suit.
on april 21 1943 the court passed an order substituting the appellant as plaintiff in the suit in place of najma.
on july 9 1942 a decree declaring the title of najma to her share in the tenure and a preliminary decree for partition were passed in that suit.
the appellant examined himself as a witness in this case.
the trial companyrt decreed the suit.
though all the heirs of shaik ahmad ali were companyharers of the tenure the names of hamid and mahmud only were recorded as the tenureholders in the record of rights published in 1911.
sarjoo prasad r. s. sinha and r. c. prasad for the appellant.
1939 against latafat the maharaja of dumraon and others asking for a declaration that her share in the tenure was number affected by the sale and for partition and possession of her share and mesne profits.
the appellant rests his claim of title to the land upon an alleged oral gift by najma.
she died leaving her father and mother as her heirs.
in 1948 khodaija applied for restitution of the land under s 144 of the companye of civil procedure.
the munsif allowed the application on appeal the first appellate companyrt dismissed it and on second appeal the high companyrt passed an order on january 24 1949 declaring that khodaija was entitled to restitution and remanded the case to the munsif.
thereupon khodaija was impleaded as a party in title suit number 127 of 1939.
on june 28 1949 the munsif directed restitution of 19.54 acres of land to khodaija.
that the suit that is title suit number 126 of 1944 wilt stand dismissed.
he said that the gift was made on february 10 1943 in the presence of his parents.
the other companyharers of the tenure including amanat were number parties to the suit.
before and after 1924 there were several litigations companycerning the rights of the companyharers in the tenure.
by his final order dated june 28 1949 the munsif directed restitution on the basis of this finding.
the appellant was allotted 19.54 acres of ian out of the tenure.
that the decree in title suit number 127 of 1939 wilt stand in other respects.
his mother was alive but she was number exmined as a witness.
on february 26 1943 najma died.
thereafter khodaija instituted title suit number 126 of 1944 against the appellant and others for a declaration that the decree passed in title suit number 127 of 1939 were fraudulently obtained and were number binding upon her the trial companyrt dismissed the suit on appeal the first appellate companyrt decreed the suit and a second appeal was disposed of by a companypromise in these terms that the name of the plaintiff number 1 that is khodaija from the category of defendants in title suit number 127 of 1939 shall be expunged.
in rejoinder the appellant contends that by the doctrine of lis pendens khodaija is constructively bound by the final decree passed in title suit number 127 of 1939 in the presence of her predecessor in title latafat and that the decree companyclusively declared his title to the land on the basis of the oral gift by najma.
his case number is that najma made a gift of her entire movable and immovable properties.
the judgment of the companyrt was delivered by bachawat j shaik ahmad ali was the holder of a tenure recorded in khewat number 4 tauzi number 3309 mouza babhnaul comprising an area of 83 82 acres under the maharaja of dumraon.
this statement is untrue because najma had been dispossessed of the tenure in august 1942 and was number in possession of it at the time of thealleged gift.
this case was number made in the petitions filed in title suit number 127 of 1939.
civil appellate jurisdiction civil appeal number 629 of 1963.
the date of the gift was number mentioned in the plaint or in any earlier document 1 it was disclosed for the first time in the witness box and even then it was number made clear how he remembered the date in the absence of any record.
the appellant number appeals to this companyrt by .special leave.
on june 25 1943 the appellant obtained possession of the land dispossessing khodaija.
he died in 1910 leaving as his heirs his mother waziran his second wife elahijan three sons amanat ashghar and ashraf and two daughters born of elahijan and two sons hamid and mahmud and four daughters born of his first wife nabiban.
in may 1939 najma instituted title suit number 127 of 481.
the maharaja of dumraon instituted rent suit number 13 of 1915 against hamid and mahmud only and obtained a decree for rent.
amanat died in 1924.
16 24 and 25.
subsequently the maharaja of dumraon put the decree in rent suit number 13 of 191.5 into execution and latafat son of ashgar by his first wife safidan purchased the tenure at the execution sale.
on august 9 1942 khodaija obtained delivery of possession of the tenure through companyrt on the basis of her purchase in numberember 1940.
r. sinha for respondents number.
in the petition filed by him on april 10 1943 in title suit number 127 of 1939 he had made a different case and had stated that the gift was made a few months before her death on february 26 1943.
eventually under a companypromise najma the wife of amanat got 2 annas 8 pies 10 krant share in the tenure.
on april 10 1943 the appellant filed a petition in title suit number 127 of 1939 praying for substitution in place of najma on the ground that before her death najma had made an oral gift of her share to him.
in october 1928 latafat obtained possession of the tenure through companyrt.
c. agarwal r. k. garg d. p. singh and m. k. ramamurthi for respondent number 1.
