KULSOMA BIBI Vs. ABDUL MANNAN

JUDGEMENT

(1.) This appeal from the appellate decree is directed against the judgement of reversal passed by Sri S. K. Mukherjee, Additional District Judge, 4th Court, Burdwan on 30/11/1979, by which he set aside the judgment and decree of dismissal passed by the trial Court, allowed the appeal and decreed the suit declaring plaintiff/respondents title to 'Ga' Schedule property of the plaint.

(2.) Being aggrieved by such decision, the appellant preferred the appeal. It is to be indicated here that the present Second Appeal was admitted by this Court without recording whether this Court was satisfied that the case involved a substantial question of law or not. Be that as it may, the facts and circumstances leading to the filing of the present appeal may briefly be described as follows :- The plaintiff/respondent No. 1 filed the suit for declaration of his title to the land described in the Schedule 'Ga' of the plaint (hereinafter be referred as the suit land) and for permanent injunction in respect of the said suit land. The specific case of the plaintiff/respondent No. 1 was that 'Ka' Schedule land measuring .80 decimals to which the suit land appertained originally belonged to two brothers Abdul Hakim and Abdul Rashid in equal shares and they amicably partitioned the said land. Hakim got the demarcated western half whereas Rashid got the demarcated eastern half of the 'Ka' Schedule land and they were in separate possession in respect of their respective portions. It was alleged that Hakim sold his demarcated western half to one Jelder by a registered sale-deed dated 11-5-53 and parted with the possession thereof in favour of the said purchaser Jeldar, who in his turn sold the said western half to Md. Hossain, father of the plaintiff/respondent No. 1, by a registered sale-deed dated 26-3-54 and put the said Md. Hossain in possession thereof. It is alleged further that Rashid who got the eastern half of the 'Ka' Schedule land sold demarcated .20 decimals of his land from the eastern most portion to defendant No. 2 by a registered sale-deed dated 12-9-56 and put him in possession thereof. Rashid however, continued to possess the other half of his land that is say .20 decimals of land in the western side of his demarcated portion and the said .20 decimals land is the subject-matter of the suit. It is further alleged that Rashid while in possession of the said .20 decimals of land sold the same to the plaintiff/respondent No. 1 by a registered sale-deed dated 14-8-57 and put him in possession thereof. It is the allegation that in 1967 while the plaintiff's father was getting the suit land ploughed by his labourers, defendant No. 1 appeared and disclosed that he had purchased the suit land from Rashid and in this way he claimed his title to the suit land on the basis of his alleged purchase by a deed on 25-4-67 executed by the said Rashid along with his mother Lebachan and wife Rahila. The plaintiff/respondent contended that after the sale of the suit land to him by Rashid in the year, 1957, the said Rashid had no interest whatsoever in the suit land and his mother and wife had also no right, title and interest in the suit land. Therefore, defendant No. 1 could not by his alleged purchase acquire any interest in the suit land. In the above circumstances, the plaintiff/respondent brought the suit, for the above mentioned reliefs. The defendant No. 1 filed a written statement to contest the suit but he died during the pendency of the suit and his heirs who were substituted in place of the original defendant adopted the written statement. Through such written statement, the defence case was that the suit land belonged to Hakim and Rashid who never partitioned the same between them but for the sake of convenience they used to possess separate specific portions of 'Ka' Schedule land which originally belonged to Ibrahim the father of said Hakim and Rashid. Ibrahim died leaving the aforesaid sons and also their mother Lebachan. So according to the Muslim Personal Law Hakim and Rashid inherited -/7/- annas each in the 'Ka' Schedule land whereas the widow Lebachan inherited -/2/- annas. The defendant admitted that Md. Hossain father of the plaintiff purchased the share of Hakim but because Hakim had only .35 decimals of land in 'Ka' Schedule, the purchaser Md. Hossain could not acquire title to more than .35 decimals of 'Ka' Schedule land. It was the further defence case that Abdul Rashid while in possession according to his share, namely, .35 decimals of land in 'Ka' Schedule, gifted the same to his mother Lebachan, by creating life estate by a deed of settlement dated 18-5-1944 and in this way Lebachan started to possess the said .35 decimals of land in 'Ka' Schedule along with her .10 decimals of land which she inherited. On 12-9-56, the said Abdul Rashid along with his mother Lebachan sold .20 decimals of land from the eastern most portion of the 'Ka' Schedule land to defendant No. 2 by a registered sale-deed. On the same day, the said Abdul Rashid along with his mother Lebachan gifted the 'Ga' Schedule land (the suit land) to Rohila, the wife of Abdul Rashid by a registered deed. Rohila in her part sold the suit land ('Ga' Schedule land) to defendant No. 1 by registered deed and since then defendant No. 1 has been in possession of the same. The defendant also challenged the sale-deed on the basis of which the plaintiff claimed title as a paper transaction which was never acted upon. In this way defendants finally alleged that the plaintiff did not possess the suit land ever. Finally the defence case was that Lebachan and Md. Hossain were necessary parties to the suit and since they were not impleaded, the suit was bad for non-joinder of necessary parties and the same was not maintainable in the present form.

(3.) The learned Munsif in his judgment in title suit No. 155/71 held that Abdul Rashid and Abdul Hakim were the sons of the admitted owner of 'Ka' Schedule land portion of which as indicated above is the suit land and Lebachan Bibi is the widow of the said admitted owner. He further pointed out that the plaintiff's claim of title over the suit land that is to say 'Ga' Schedule land was based on a sale-deed dated 14-8-57 (Ext. 1(b)) executed by one of the sons, namely, Abdul Rashid. In the said sale-deed, the vendor Abdul Rashid declared through the recitals of the deed that the property in question was paternal property. He also pointed out to the evidence of P.W.3, the father of the plaintiff who admitted that 'Ka' Schedule property originally belonged to Md. Ibrahim which statement stood corroborated by the oral testimony of the P.W.4. Considering these, the learned Munsif came to a finding that the suit land originally belonged to Md. Ibrahim so on his death Lebachan, the wife of Ibrahim inherited -/2/- annas share in the 'Ka' Schedule property measuring about .80 decimals. Therefore, he further held that Abdul Hakim got only .35 decimals out of 'Ka' Schedule land and therefore by Ext. 1, the purchaser Sk. Jeldar Rahaman would only acquire interest in respect of .35 decimals of land. It followed that Jeldar Rahaman through the sale-deed Marked Ext. 1(a) sold the said .35 decimals of land to the father of the plaintiff which Sk. Abdul Hakim inherited on the death of the original owner of 'Ka' Schedule land Ibrahim, his father. In this way, the learned Munsif came to a finding that on the death of original owner Ibrahim, Abdul Rashid, Abdul Hakim and Lebachan Bibi became the co-owners of the plot described in Schedule 'Ka' of the plaint. The purchaser, therefore, stepped into the shoes of his vendor on such purchase and became co-owner along with others. He further held that by virtue of the registered deed of settlement dated 18-5-1944 (Ext.A(I)) Rashid wanted to create life estate in respect of the entire suit plot in favour of his mother Lebachan but Rashid had no right to settle the entire suit plot. In that way as he had only .35 decimals of land out of 'A' Schedule property, it was further held through Ext. A(1), the settlor settled the usefructs in favour of his mother Lebachan who accepted the life estate and such life estate under the law was created only in respect of .35 decimals of land, the share of Rashid in the suit plot. So the learned Munsif found that by virtue of the deed of settlement Lebachan had life estate in respect of .35 decimals of land and she had title over. 10 decimals of land which she inherited from her husband. The defendants through the written statement claimed that Lebachan was in possession of .45 decimals of land out the said 'A' Schedule land without any connection whatsoever with Abdul Rashid. The learned Munsif further held that through Ext.2, Lebachan transferred her life interest in the suit plot which she got from Rashid by the deed dated 18-5-1944 that is Ext. A(1) to Rahila. The learned Munsif further held that the materials on record were too insufficient to support oral partition on the suit plot specially when Lebachan having .10 decimals of land in the suit plot was not a party. He further held that Hakim transferred .35 decimals of land to Jeldar Rahaman vide Ext.1 and by virtue of Ext. 1(a), the plaintiffs father acquired the said interest from Jeldar Rahaman. Therefore, both the father of the plaintiff and Lebachan Bibi were necessary parties to the suit in the absence of whom no effective decree could be passed. Therefore, dismissed the suit coming to a finding that the same was bad for non-joinder of both Lebachan and father of the plaintiff and he also found that the suit as framed was bad as the plaintiff had only undivided .15 decimals of land in the suit plot and therefore was not entitle to a relief as prayed for.