1. Heard Mr. N. Dhar, learned counsel appearing for the appellant as well as Mr. S.K Ghosh, learned counsel appearing for the respondents.
2. Title Suit No. 16 of 1993 Was brought about by one Sri Ahmed Ali (now represented by his legal heirs) and the same was instituted before the court of the Munsiff No. 2, Karimganj praying for a preliminary decree for declaration of his title and the land measuring 1¾ Jastis out of a total 5 Jastis of land situated in Dag No. 1706 of Khaitan No. 245 of. Vilagc-Deorail in Chapghat Mouza of Badarpur P.S District Karimgan. The said declaration was sought on account of his purchase of the land in question. Declaration was also sought for confirming land holders right and for partition with confirmation of possession. Prayer was also made for permanent injunction restraining the defendant No. 1, i.e, Abdul Jabbar from constructing any temporary or permanent house on the land bounded by the Scheduled boundaries to the plaint and for a direction to remove any structure or obstacle from the land in question that may be raised by Abdul Jabbar, i.e, defendant No. 1. According to the original plaintiff the land bounded by the Scheduled boundaries belonged to Late Formuj Ali who was the predecessor-in-interest of both the defendant No. 1 Abdul Jabbar and pro forma defendant No. 2, i.e, Abdul Bari. It is the case of the original plaintiff that the said pro forma defendant No. 2 sold land measuring 1¾ jastis to the plaintiff by a regislered sale deed dated 6.1.1993 and thereby transferred the land and handed over possession to the plaintiff. However, problems arose when the appellant defendant No. 1 made attempts to construct a RCC house on the said land by engaging labourers. The said defendant No. 1 without paying heed to the objection of the original plaintiff carried on with the hindrances, as a result of which the original plaintiff was constrained to file the suit.
3. The appellant-defendant No. 1 contested the suit and had also filed a written statement pleading, inte ralia, that the suit is bad for non-joinder of necessary parties, in that, the successor and sisters of Formuj Ali, being, shareholders in respect of the land, have not been impleaded in the suit. According to the appellant/defendant No. 1 the original plaintiff did not purchase any part of the Scheduled land and, in fact, the predecessor-in-interest, i.e, Formuj Ali was not the owner or title holder or possessor of the suit land. Alleging that the averments made in the plaint were absolutely false and that it was only an attempt on the part of the original plaintiff to grab the land in question, the suit had been filed. According to the appellant/defendant No. 1 the suit land and land contiguous thereto on the south side was purchased by one Matasin Ali from the plaintiff's father by means of a registered sale deed No. 933 dated 31.3.1954 and thereafter on the strength of a lease deed entered into with Matasin Ali, the appellant/defendant No. 1 was residing on the suit land by constructing, a kacha house initially and thereafter in an RCC building which was nearing completion. It is also the case of the defendant No. 1 thatin order to prevent completion of the RCC building on the suit land, two earlier attempts had been made at the instance of the plaintiff, being Title Suit No. 6/1993 and Title Suit No. 21 of 1993. The appellant/defendant No. 1 states that the plaintiff being unsuccessful in the said two attempts, has now filed the present suit.
4. The proforma defendant No. 2, i.e, Abdul Bari had also filed a separate written statement supporting the case of the plaintiff.
5. The trial court after noticing the facts and the pleadings of the parties framed as many as 7 issues and out of the said issues so framed, Issue Nos. 2, 3 and 6 are of relevance. The Issue No. 3 which pertains to nonjoinder and mis-joinder of parties, the trial court decided the same in the negative by holding that there was no specific averments made in the written statement of the appellant/defendant No. 1 to the extent as to why the suit was bad for defect of parties. As regards Issue No. 6 on right, title and interest of the plaintiff, the trial court on the basis of the evidence on record and more particularly relying upon the documents at Ext.(B) produced by the appellant/defendant No. 1 and Ext. 2 (final khatian) and Ext. 3 (the registered sale deed) held that the original plaintiff had proved his right/title and interest over the. 1% jastis of land and is, therefore, entitled to get khas possession over the suit land out of the Scheduled land of the plaint. The trial court also noted that insofar as Ext.B produced by the appellant defendant No. 1 is concerned, it is an unregistered document and the same did not make any mention of the settlement dag, the Khatian, the particulars of the land in the said Ext. B. The suit was decreed on contest vide judgment and decree dated 29.5.1996
6. The appellant/defendant No. 1 preferred Title Appeal No. 40/1996 before the Court of the Civil Judge (Senior Division), Karimganj. While deciding the appeal, the point for determination was confined to whether the suit land originally belonged to Formuj Ali and whether one of his legal heirs, i.e, pro forma defendant No. 2, i.e, Abdul Bari sold his share of the suit land to the respondents/plaintiffs. The appellate court after noticing the facts and taking into consideration the evidence on record dismissed the appeal vide judgment and decree dated 2.9.2002, thereby affirming the judgment and decree passed by the court below.
7. The facts involved in the suit have been mentioned above in details only for the purpose of deciding this present-appeal vis-a-vis the substantial questions of law so formulated.
8. This court while admitting the second appeal for hearing vide order dated 29.4.2004 had also formulated the following substantial questions of law:
“1. Whether a co-sharer of a property can transfer his alleged share in the properly without at first partitioning of the said property by metes and bonds in accordance with law as provided under section 44 of Transfer of Property Act.
2. Whether the plaintiff/respondents who is not a member of the family is entitled to joint possession in the suit property which is a dwelling house of a undivided family and whether the appellant being a share holder of the property is not entitled to purchase such share in accordance with the law as provided under section 4 of the Partition Act.
3. Whether the passing of the decree primarily basing on the findings of the learned court below that the defendant No. 2 as son of Farmuze Ali he is competent enough to transfer his share to anyone and confirmation of the decree passed by the learned trail court for partition of the suit property without resorting to the provision of law as provided under section 4 of the Partition Act is sustainable in law.”
9. Mr. N. Phar, learned counsel for the appellant submits that the possession over the suit land was always with the appellant/defendant No. 1. Infirmity, in the finings and judgment of the courts below, according to Mr. N. Dhar, is wholly apparent, inasmuch as the issues so framed had not been discussed, primarily with regard to Issue No. 3 pertaining to non-joinder of necessary parties. According to the learned counsel, the said Issue No. 3 have been brushed aside without any discussion. Relying on the case of Kannkarathanammal v. Loganatha Mudaliar, AIR 1965 SC 271 in para 15 thereof, Mr. N. Dhar submits that the non-joinder of necessary parties is an infirmity and is fatal to the suit. The further contention is that the subject-matter and orders passed in the earlier Title Suit Nos. 6 of 1993. and 21 of 1993 did not fail for consideration before the courts below. Mr. Dhar, learned counsel also submits that the suit land over which there was a dwelling house constructed by the appellant/defendant No. 1, the same could not have been transferred to the plaintiff as the transaction is hit by the second part of section 44 of the Transfer of Property Act, 1882 and to this end relied upon the case of Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117 (para 29). The further contention of Mr. N. Dhar, learned counsel is that no part of the dwelling house could have been transferred to the respondent/plaintiff, not being a member of the family, without first complying with the provisions under section 4 of the Partition Act, 1893 and to this end also placed reliance in the case of Ghantesher Ghosh v. Madan Mohan Ghosh, (1996) 11 SCC 446. On these submissions, the learned counsel prays that the judgment of the courts below be set aside and the matter be remanded for fresh disposal.
10. On the other hand Mr. S.K Ghosh, learned counsel representing the respondents/defendants submits that with regard to the question oh possession, the statements made in paragraphs 1 and 2 of the plaint makes it clear that the suit had been filed not for recovery of khas possession but for confirmation of possession and that there is a clear statement at paragraph 2 of the plaint to the extent that the suit land had been transferred to the plaintiff and also possession thereof was handed over to the respondent/plaintiff. It is the submission of Mr. Ghosh that the said statement not having been traversed by the appellant/defendant No. 1, the same has to be taken to be admitted in terms of order VIII, rule 5 of the Code of Civil Procedure. With regard to, applicability of section, 44 of the Transfer of Property Act, Mr. Ghosh submits that the pro forma defendant No. 2, i.e, Abdul Bari having sold his extent of the share of the land to the respondent/plaintiff, such transfer is valid and is saved by Section 47 of the Transfer of Property Act. As a corollary, the provisions of section 44 of the Transfer of Property Act is not applicable in the present case. Insofar as the question of non-joinder of necessary parties is concerned, Mr. S.K Ghosh, learned counsel submits that the successors and sisters of Late Formuj Ali are not necessary parties and are not required to be impleaded in the suit, inasmuch as, the land within the Scheduled boundaries is a duly partitioned land and what has been purchased by the respondents/plaintiffs was the share of plaintiff/defendant No. 2, i.e, Abdul Bari. It is the contention, of Mr. Ghosh that the provisions of section 44 of the Transfer of Property Act as well as the provisions of section 4 of the Partition Act do not come into play as the property in question do not belong to an undivided family. Mr. Ghosh submits that on the premises above the appeal be dismissed.
11. I have heard both parties and have also examined the records of the case. It transpires from the evidence on record that whereas the respondents/plaintiffs succeeded in proving his right, title and interest over the suit land, the appellant/defendant No. 1 failed to do so. The suit was duly answered to by the courts below on a close appreciation of the pleading, of the parties and upon the evidence on record. There is no gainsaying that a party is required to lay foundation in its pleadings. In the backdrop of the substantial questions of law so formulated, it is clear that no pleadings has been raised by the appellant/defendant No. 1 to the effcct that the suit land not being partitioned, therefore, the sale and transfer of the land to the respondents/plaintiffs is illegal in order to bring in the applicability of the provisions under section 44 of the Transfer of Property Act and/or section 4 of the Partition Act. Added to it, no issues had also been framed on the point; It is not the case here that such plea was taken and was turned down by the courts below. In the opinion of this court, interference and remand will only go to enlarge the scope of the suit without there being any foundation in the pleadings of either side as regards partition or non-partition of the suit land amongst the brothers, i.e, Abdul Jabbar and Abdul Bari. The case laws relied-upon Mr. N. Dhar, learned counsel for the appellant, i.e, (1990) 2 SCC 117 and (1996) 11 SCC 446 are wholly misplaced, inasmuch as, the fact situation in the said cases are entirely different.
12. To reiterate the substantial questions of law so formulated do not have any foundation in the pleadings and evidence from the side of the defendant. The points now raised are entirely new points raised for the first time before this court. These are not questions involved in the case and cannot be accepted to be substantial questions of law for the purpose of deciding the second appeal.
13. As a result/this appeal is without merit and stands dismissed, however, without any order as to costs.
14. Registry to send back the case records to the appropriate court below forthwith.