Jahidul Islam And An... v. On The Death Of Abu ...

1. Heard Mr. G.N. Sahewalla, learned senior counsel appearing on behalf of the appellants and Mr. A.R. Sikdar, learned counsel appearing on behalf of the respondents.

2. This appeal under section 100 of the Civil Procedure Code, 1908 was admitted on 31.5.2013 on the following substantial questions of law:—

“(1) Whether the courts below committed error by dismissing the plaintiff's suit holding that the vendors of the plaintiffs, who were co-sharers of the suit land, had no title and right to transfer their shares in the suit land by executing register sale deed, as co-sharers?

(2) Whether the said vendors of plaintiffs, in view of the provision of sections 44 and 48 are permitted to take the plea that they had no title over the suit land at the time of execution of the sale deed, in favour of the plaintiffs?

(3) Any other question of law that they may be raised at the time of hearing.”

3. At the outset, it is stated that the question No. 3 being not a substantial question of law and no further existence of substantial question of law having urged, the same is deleted. Before deciding the said substantial questions of law as formulated by this court, it would be relevant to take note of the background of the instant lis. The plaintiffs who are the appellants herein had instituted the suit seeking declaration of their right, title and interest and for confirmation of possession in respect to the Schedule B land; for declaration of the registered sale deed bearing Deed No. 477/2001, dated 1.3.2001 as illegal, invalid and inoperative in law and for issuance of a precept to the Sub-Registrar for cancellation of the said deed of sale and for issuance of a further precept for restoration of a mutation in favour of the plaintiffs; for partition of the Schedule-Bland by issuance of separate patta in favour of the plaintiffs and for permanent injunction. The case of the plaintiffs in the said suit was that the plaiittiffs have purchased the Schedule B land from the pro forma-respondent Nos. 6 and 7 vide the registered sale deed bearing No. 1081/1999, dated 4.12.1999. The plaintiffs on 5.3.2001 came to learn that the defendant Nbs. 1 to 4 sold the B-Schedule land to the defendant No. 5 vide the registered sale deed bearing No. 477/2001, dated 1.3.2001. Pursuant to the purchase made by the defendant No. 5 vide the said registered Sale Deed dated 1.3.2001, the defendant No. 5 tried to dispossesses the plaintiffs from the suit land on 10.3.2001 for which the said suit was filed by the plaintiffs seeking the above mentioned reliefs.

4. The defendant Nos. 1 to 4 did not contest the suit by filing written statement. However, the defendant No. 5 filed his written statement-cum-counter-claim stating, inter alia, that late Saheb Ali Haji was the sole paddatar of Patta No. 17 of Village Deorikuchi, which had two dags. Dag No. 243 covered an area of 8 bigha, 2 kathas, 7 lechas and Dag No. 276 covered an area of 8 bighas, 2 kathas, 16 lechas, i.e., in total 17 bighas, 0 katha, 3 lechas. The disputed dag in question was the Dag No. 276. During the life time of late Saheb Ali Haji he sold 6 bighas of land from the said Dag No. 276 to one Md. Abdul Hai. At the time of death of late Saheb Haji Ali he left behind eight sons, five daughters and two wives, who inherited the land admeasuring 2 bigha, 2 kathas, 6 lechas of the said disputed dags. The further case of the defendant No. 5 in his written statement was that according to the principles of Mohammadan Law the two wives of late Saheb Haji Ali were jointly entitled to 1/8th share; each son was entitled to double that of each daughter and consequently the two wives would jointly get 1 katha, 106/8 lechas. Each son would get 1 katha, 10/21 lecha from the said disputed dag and under such circumstances, the pro forma-defendant Nos. 6 and 7, who were the daughters had no saleable right over 2 kathas 12 lechas of land as described in Schedule, B of the plaint. It was the specific case of the defendant No. 5 in the said suit that the pro forma-respondent Nos. 6 and 7, who were married at distance place never had possession of the Schedule B land and it was the defen dant Nos. 1 to 4, who were in physical possession of 2 bigha, 2 kathas, 6 lechas of the disputed dags. Out of the said 2 bigha, 2 kathas, 6 lechas the defendant Nos. 1 to 4 sold 2 kathas, 12 lechas of Schedule B land vide the registered Sale Deed No. 477/2001, dated 1.3.2001 to the defendant No. 5 for a valuable consideration of Rs. 37,000 and delivered possession. It was also stated that apart from the land described in Schedule B, the defendant No. 5, his sister and wife were sold various lands by the heirs of late Saheb Ali Haji and they got possession in respect to other plots of land admeasuring 1 bigha, 4 lechas. It was also the specific case that on 15.3.2001, the defendant No. 5 was dispossessed by the plaintiffs. Under such circumstances, the defendant No. 5, his sister and wife filed a counter-claim claiming rights over the Schedule A land described in the counter-claim and for recovery of khas possession of the Schedule B land. The plaintiffs filed their written statement stating, inter alia, that the land admeasuring 8 bighas, 2 kathas, 16 lechas belonged to late Saheb Ali Haji and the pro forma-defendant Nos. 6 and 7 were daughters of late Saheb Ali Haji. The plaintiffs's father, who is the pro forma-respondent No. 2 and the pro forma-respondent Nos. 1, 3 to 10 and 14 and defendants amicably gave the pro forma-defendant Nos. 1 to 4, 6 to 7, 2 kathas, 10 lechas of land many years ago and it is on that basis the pro forma-defendant Nos. 6 and 7 executed the registered sale deed on 4.12.1999 and gave formal delivery of possession to the plaintiffs.

5. On the basis of the pleadings as many as nine issues were framed, which for the sake of inconvenience is quoted herein below:—

1. Whether there is cause of action for the suit?

2. Whether the suit is maintainable?

3. Whether the suit is under valued?

4. Whether the suit is bad for non-joinder of necessary parties?

5. Whether the plaintiffs have right, title, interest and possession over the suit land?

6. Whether the defendants have right, title and interest over the suit land described in Schedule A of the counter-claim?

7. Whether the plaintiffs are entitled for a decree as prayed for in the plaint?

8. Whether the defendants are entitled for a decree as prayed in the counter-claim?

9. To what relief or reliefs the parties are entitled?

6. The plaintiffs examined as many as five witnesses which included the pro forma-respondent Nos. 6 and 7, who were adduced as PW-3 and PW-4. The defendants examined six witnesses.

7. Issue Nos. 5 and 6 which relates to as to whether the plaintiffs have right, title and interest and possession over the suit land, i.e., the Schedule B land and as to whether the defendant No. 5, his wife and sister had right, title and interest over the Schedule A land of the counter-claim were taken up together by the trial court. PW-3 Ashatun Nessa admitted that after the death of her father she never occupied any land at Barpeta. PW-3 also admitted that she is not aware about her share of the land from her father. She also admitted that as regards her share, she was given property at Kokhila Basti at the time of her marriage, which she is presently occupying. The PW-4, who was the other vendor of the plaintiff admitted that neither she nor her husband ever occupied any land at Barpeta. That she only executed the registered sale deed at Kalgachia as per the advice of the plaintiff. She also admitted that she never delivered the possession of the land to the plaintiff. She also stated that she had not filed any affidavit on evidence in the court and that she and Ashatun Nessa never were in possession of the suit land. The evidence adduced by the plaintiffs do not support their proposition that the pro forma-respondent Nos. 6 and 7 had a right over the Schedule B land inasmuch as from their evidence, it transpires that the said pro forma-respondent Nos. 6 and 7 were given land at some other location as their share and that they had no possession over the suit land. The PW-3 had stated that she was given her share at Kokhila Basti at the time of her marriage and PW-4 during her cross-examination admitted that she put her signature in the registered sale deed as advised by the plaintiffs. From the evidence of PW-3 and PW-4 what, therefore, transpires that the plaintiffs had failed to prove that the pro forma-respondent Nos. 6 and 7 (PW-3 and PW-4) had a share in respect to the disputed Dag No. 276 and consequently they had the right to sell the land to the plaintiffs.

8. On the basis of the above evidence, the trial court decided the issue Nos. 5 and 6 in favour of the defendants/counter-claimants and against the plaintiffs. The other issues being peripheral to the said issue Nos. 5 and 6, were decided in terms with the decision of issue Nos. 5 and 6 and thereby dismissed the suit of the plaintiffs and allowed the counter-claim filed by the defendant No. 5 by a judgment and decree dated 12.4.2007. Against the said judgment and decree, an appeal was preferred before the court of the District Judge, Barpeta, which was registered and numbered as Title Appeal No. 20/2007. It may be relevant herein to mention that there was no appeal separately preferred insofar as the decree passed in the counter-claim is concerned. It is trite principle of law that when in a suit there is a counter-claim; in law, it means that there are two suits. The Civil Procedure Code provides for passing of a common judgment and decree in two or more suit tried together as analogously. But a reading of section 96 and order XLI, rule 1 of the CPC, an appeal lies against every decree passed by a court exercising jurisdiction. The Code of Civil Procedure does not provide the of filing a common appeal against a common judgment and decree. The said aspect of the matter is also clear in proviso to order XLI, rule 1 wherein it is stipulated that appeals filed by same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment. In the instant case, it is also relevant herein to mention that while the suit was dismissed, the counter-claim, which is the cross suit was allowed, whereby the right, title and interest of the defendant No. 5 was declared in respect to the Schedule to the counter-claim, which included the Schedule B described in the plaint and for eviction of the plaintiffs from the Schedule B land of the plaint. Under such circumstances, the decree passed in the counterclaim having not been challenged, it had attained finality and the said decree passed in the counter-claim shall apply as a res judicata in so far as any appeal or collateral proceedings are concerned.

9. Be that as it may, the Appellate Court framed as many as four points for determination, which also revolves around the decision of issue Nos. 5 and 6. The First Appellate Court after going through the evidence came to a finding that issue No. 5 was rightly decided by the court below as on the basis of the materials available with the record the plaintiffs had failed to prove their title on the basis of the deed of sale bearing Deed No. 1081/1999. The issue No. 6 was decided in favour of the defendants/counter-claimants. Consequently after deciding all the issues, on the basis of which the points of determination were being framed, the First Appellate Court dismissed the appeal vide the judgment and decree dated 12.9.2012. It is against the said concurrent findings of fact arrived at by the courts below, the appellants are before this court on the basis of which the above mentioned two substantial questions of law were framed.

10. Let me take the first substantial question of law as to whether the courts below committed error by dismissing the plaintiffs's suit holding that the vendors of the plaintiffs, who were co-sharers of the suit land had no title and right to transfer their share in the suit land by executing the registered deed of sale as co-sharers. The said substantial question of law so formulated cannot be construed as a substantial question of law thereby empowering this court to adjudicate the Second Appeal. The said substantial question of law as framed conceives as to whether there was an error by the court below in dismissing the suit of the plaintiff. Mere error in the findings cannot be a substantial question of law.

11. Apart from what has been aforesaid, it is relevant to take note that it was the specific stand of the plaintiffs as could be seen from the written statement filed to the counter-claim that the plaintiffs father, the pro forma-defendant No. 2 and the pro forma-defendant Nos. 1, 3 and 10 and 14, all defendants amicably gave the pro forma-defendant Nos. 1 and 4, 6 and 7, 2 kathas 10 lechas of land as their share many years ago, but the said aspect of the matter could not be proved by the plaintiffs. Under such circumstances, the appreciation of the evidence by the courts below to the effect that the plaintiffs could not substantiate that the pro forma-defendant Nos. 6 and 7 have a right over the suit land described in Schedule-B to the plaint requires no interference.

12. The second substantial question of law as formulated is as to whether in view of the provisions of sections 44 and 48 the vendors of the plaintiffs were permitted to take the plea that they had no title over the suit land at the time of execution of the sale deed in favour of the plaintiffs, it would be relevant at this stage to quote sections 44 and 48 of the Transfer of Property Act, 1882 as under

“44. Transfer by one co-owner.— Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.”

“48. Priority of rights created by transfer.— Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.”

13. A perusal of section 48 of the Transfer of Property Act as quoted herein above would go to show that where one of two or more co-owners of an immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same.

14. In view of the above, it is relevant that the co-owner, who transfers his or her share in the property has to be legally competent in that behalf. As already held herein above, the concurrent findings of facts arrived by the courts below that the pro forma-respondent Nos. 6 and 7 did not have any saleable right in respect to the Schedule B land, under such circumstances, section 44 of the said Act cannot be made applicable to the facts and circumstances of the instant case.

15. The next question arises as regards the applicability of section 48 of the said Act which gives priority in respect to the transfer made at various stages in respect to the same property, but the said provision is only applicable when a person creates right by transfer at different times in or over the same immovable property. However, in the instant case that the deed of sale in favour of the plaintiffs was done by the pro forma-respondent Nos. 6 and 7, whereas the deed of sale executed in favour of the defendant No. 5 was executed by the defendant Nos. 1 to 4. Under such circumstances, the question of applying section 48 to the facts and circumstances of the instant case does not arise. Consequently the second substantial question of law so formulated by this court in its order dated 31.5.2013 is not a substantial question of law, which would affect the instant lis between the parties thereby calling for interference to the appellate decree passed by the court below.

16. In view of the above, the instant Second Appeal stands dismissed. No costs.