Calcutta High Court (Appellete Side)
Lokman Rahaman vs Sirajul Islam & Ors on 23 August, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
S.A.T. 307 of 2016
(CAN 7401 of 2016)
Lokman Rahaman
-versus-
Sirajul Islam & Ors.
For Appellant : Mr. Basudev Gayen,
Mr. Dilip Kumar Maity.
Heard On : 23rd August, 2016.
Judgement On : 23rd August, 2016.
Jyotirmay Bhattacharya, J.
This Second Appeal is directed against the judgement and decree dated 19th May, 2016 passed by the learned Additional District & Sessions Judge, Kalyani, District - Nadia, in Title Appeal No. 07 of 2013 affirming the judgement and decree dated 31st May, 2013 Passed by the learned Civil Judge, Junior Division, Kalyani, Nadia, in Title Suit No. 01 of 2009 at the instance of the plaintiff/appellant.
Let us now consider as to whether any substantial question of law is involved in this Second Appeal for which the appeal is required to be admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
Here is the case where the plaintiff has filed a suit for declaration of his title in respect of the suit property and for injunction for restraining the defendants from disturbing the possession in the suit property. According to the plaintiff, he purchased 56 decimals of land in plot no. 1452 in Mouja - Kasthadanga by two registered sale deeds from the defendant no. 1. According to him, the defendant no. 1 was the owner of the said plot of land which he got by way of amicable partition with his co-sharers. That 56 decimals of land is the subject matter of the dispute in the suit.
The defendant no. 1 appeared in the said suit and contested the same by filing written statement. The defendant no. 1 contended that his father, Golam Eiha, was the owner of 85 decimals of land in plot no. 1452. On the death of Golam Eiha, the defendant no. 1 alongwith his four brothers and six sisters inherited the said property. According to the defendant no. 1, he inherited 10.63 decimals of land in the said plot. He claimed that out of the said 10.63 decimals of land he gifted 6 decimals of land to his wife in the year 1987 and thereafter, in the year 1990 he sold his remaining 4.63 decimals of land to the plaintiff by two different deeds being Deed Nos. 733 and 734. He, thus, claimed that the plaintiff at best can claim title in respect of 4.63 decimals of land in the said plot of land.
The parties led evidence in support of their respective claims.
Ultimately, the learned Trial Judge after considering the pleadings of the parties and their evidence came to the conclusion that Golam Eiha was the owner of 85 decimals of land pertaining to plot no. 1452 and on his death his heirs and heiresses inherited the said plot of land. The learned Trial Court also held that the defendant no. 1, being one of the heirs of Golam Eiha, inherited 10.63 decimals of land and after he gifted 6 decimals of land out of that 10.63 decimals of land in the said plot in favour of his wife, the defendant no. 1 had interest in respect of 4.63 decimals of land. The learned Trial Judge, thus, held that by virtue of purchase, the plaintiff at best could have acquired title in respect of 4.63 decimals of land from the defendant no.
1. The learned Trial Court also held that the defendant no. 1 cannot transfer interest in respect of the land over which he had no title. The learned Trial Court also held that amicable partition is not valid in view of Section 14 of the West Bengal Land Reforms Act which contemplates partition either by way of decree of the Court or by a registered partition deed. The learned Trial Court also held that Golam Eiha died some time in 1973 and the amendment in the Land Reforms Act was introduced in 1965 which came into force effect from 7th June, 1965.
Considering the facts as aforesaid, the learned Trial Judge disbelieved the oral partition. Accordingly, the learned Trial Judge declared the plaintiff's title in respect of 4.63 decimals of land and passed a decree for maintenance of joint possession by the parties.
Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Court, the plaintiff/appellant preferred an appeal before the learned First Appellate Court. The learned First Appellate Court also affirmed the said judgement and decree of the learned Trial Judge and dismissed the said appeal. The instant appeal is directed against the said judgement and decree of the learned First Appellate Court.
Let us now consider as to how far the learned First Appellate Court is justified in affirming the findings of the learned Trial Court in the facts of the instant case.
It is settled law that no one can transfer any interest in any land over which he has no interest. Here, we find that Golam Ehia was the owner of 85 decimals of land in the suit plot. On his death his heirs and heiresses inherited the suit plot. The defendant no. 1 was one of the heirs of the said Golam Ehia. He inherited 10.63 decimals of land in the suit plot. He transferred 6 decimals of land by gift in favour of his wife in 1987. After such transfer by way of gift in favour of his wife, he was left with only 4.63 decimals of land in the said plot which he could have transferred legally, validly in favour of his purchaser.
Thus we hold that by virtue of purchase of the interest of the defendant no. 1 by two deeds executed by defendant no. 1 in the year 1990; the plaintiff at best could have acquired title in the said plot of land to the extent of 4.63 decimals of land.
We, thus, hold that the courts below did not commit any illegality in declaring the plaintiff's title in respect of 4.63 decimals of land in the suit plot and also by passing a decree for joint possession as the defendant is admittedly a co-sharer of the suit plot which still remains unpartitioned as the suit plot was never partitioned amongst the co-sharers either by decree of the court or by any deed of partition.
We, thus, make it clear that the parties will maintain their joint possession in the suit property until partition is effected amongst the co-sharers by metes and bounds.
Hence, we do not find involvement of any substantial question of law in this appeal. We, thus, decline to admit this appeal.
The appeal is, thus, dismissed. Consequently, the application filed in connection with this appeal is also dismissed.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) ac