Amarnath Kundu Since Deceased Represented By Chhaya Rani Kundu & Ors vs Niharbala Manna & Ors

The appeal is arising out of a decree passed by the learned Judge, Seventh Bench, City Civil Court at Calcutta in Title Suit No. 302 of 2006 in decreeing a suit for declaration and injunction filed by the plaintiffs.

The appellants, during the pendency of the appeal, have filed an application for additional evidence. The application for additional evidence is taken up for hearing together with the appeal. In the application for additional evidence, the appellants have disclosed few orders passed in a suit filed before the Eleventh Judge, City Civil Court, being Title Suit No. 2375 of 1985. The disclosures are essentially orders passed in the said suit. The endeavour of the appellants by disclosing the said order is to demonstrate that there is a clear finding in their suit that the plaintiffs have not acquired any title over the suit property under the conveyance dated 17th February, 1984. The judgment in their suit was delivered by the learned Trial Judge on 26th April, 2013 subsequent to the impugned decree and we find the said decree to be relevant in deciding the present appeal. Hence we allow the application for additional evidence and consider the said additional evidence together with the disclosures made by the plaintiffs in their affidavit-in-opposition. In fact, we hasten to add that by reason of certain documents being relied upon by the plaintiffs in their opposition to the application for additional evidence, it is necessary for us to take such additional evidence on record and decide the appeal on the basis of such additional evidence. Sworn of details the parties to the suit are claiming their necessary right, title and interest over the properties from the legal heirs of Gopendra Krishna Kundu Chowdhury.

The plaintiffs filed a suit before the learned Trial Judge for a declaration that by virtue of the deed of conveyance dated 17th February, 1984, the plaintiffs become the owners of the suit property and are entitled to exercise such right of ownership by constructing a boundary wall on the suit premises. The suit for declaration was filed by the plaintiffs in the year 2006 subsequent to the suit filed by the appellants before the Tenth Bench of the City Civil Court at Calcutta, in which the present appellants have prayed for a suit for declaration and for permanent and mandatory injunction.

Ideally, both the suits should have been heard together to avoid any conflict of interest. Unfortunately, the suits were tied separately resulting in conflict of decisions, which would be apparent from the order of remand passed by the Hon'ble Division Bench in an appeal preferred by the appellants in relation to the decree passed earlier in their title suit, being Title Suit No.2375 of 1985. The plaintiffs fairly have disclosed the order dated 17th August, 2010 in their affidavit-in-opposition which records the order of remand passed by the Hon'ble Division Bench with a direction upon the learned Trial Judge to decide the following issues:

"1. Whether by virtue of the deed dated February 17, 1984 the original defendant no.1 has really acquired any title to the property purchased by him?

In case, it is found that the defendant no.1 has really acquired title in the suit property by virtue of the said purchase, then, whether such purchased property of the defendant no.1 is part of the thika tenanted portion of the plaintiff, or not?

The learned trial judge was, also, directed to decide those two issues, if necessary, by appointing an engineer commissioner of the purpose of ascertaining encroachment of the plaintiff's portion, if any.

In this background, the application for local investigation was filed for investigation on the following points:-

5(a). Whether the defendant nos. 1(a) to 1(g) have encroached on any portion on the western side of the suit property in terms of the building plan dated 20th December, 1928 so sanctioned by the Corporation of Calcutta in respect of the suit property.

5(b). Weather the existing pucca meter room situated on the western wall in the North West corner of the suit property is within the boundaries of the Hut No.6, Holding No. 162/1, Bipin Behari Ganguly Street, Kolkata-700012.

The learned trial judge was pleased to allow the plaintiff's such prayer for local investigation with regard to the points as indicated herinabove."

The decision of the said Trial Judge was the subject matter of a civil revision. Justice Jyotirmay Bhattacharya, the former Chief Justice of our Hon'ble Court passed an order on 17th August, 2010 and disposed of the civil revision with the following observations:

"Mr. Sen submits that the points for investigation mentioned in paragraphs 5(a) and 5(b) of the said application were not framed in the light of the remand order passed by the division bench of this court, as aforesaid.

This court finds substance in such submission of Mr. Sen. The thika tenanted property of the plaintiff as mentioned in the schedule of the plaint is well defined and demarcated by boundaries. While deciding the aforesaid issues, the court is required to consider as to whether any part of the property purchased by the original defendant no.1 by the deed dated February 17, 1984 falls within the thika tenanted portion of the plaintiff, or not.

In my view, for ascertaining as to whether any part of the purchased property of the defendant no.1 falls within the thika tenanted property of the plaintiff, no other document but the title deed of the defendant no.1 dated February 17, 1984 is required to be taken into consideration.

Under such circumstances, this court directs the Engineer Commissioner to ascertain by investigation as to whether any part of the property purchased by the defendant no.1 by deed dated February 17, 1984 falls within the thika tenanted property of the plaintiff as described in the schedule of the plaint. In the event, it is found that such purchased property of the defendant no.1 falls within the thika tenanted property of the plaintiff, then to identify the portion which falls within the thika tenanted property of the plaintiff. Such investigation should be made with reference to the defendant no.1's title deed dated February 17, 1984.

The order impugned in this revisional application is modified in the manner as indicated hereinabove and the revisional application is disposed of without any order as to costs."

What is of seminal importance is that the learned Trial Court was required to take into consideration the original deed dated 17th February, 1984 in order to ascertain the respective possession of the parties to the suit property. However, the said order does not, in any way, dilute the order of remand of the Hon'ble Division Bench and it was only for the purpose of deciding the Issue No.2 of the order of remand. In deciding the Issue No.1, that is to say, whether by virtue of the deed dated 17th February, 1984, the original defendant no.1 has originally produced by him.

The learned Judge, Tenth Bench, has meticulously recorded that devolution of title and the nature of the property and returned a finding that from the evidence it is clear that there are several huts occupied by several thika tenants within Holding No. 162/1, Bipin Behari Ganguly Street. The said holding was held to be a Bustee. It was held that the suit land was an open land within the said Bustee not occupied by any thika tenant. Accordingly, by reason of Section 5(b) of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, the learned Single Judge has returned a finding that landlord/landlords of the original defendant no.1 (the plaintiffs herein) had no interest in the suit land to transfer the same.

It is trite law that if a person does not have title over the said property, he cannot transfer any right. Accordingly, it was held that the original defendant no.1/substituted defendants (plaintiffs herein) did not acquire any title over the suit land by virtue of the registered deed of sale dated 17th February, 1984. The claim of the defendants also failed primarily on the same finding as they also seem to have been acquired a property from persons who had no interest in the suit land to transfer the same. However, the plaintiffs could not prove any encroachment on the land presently in possession of the present plaintiffs.

It is significant to mention that in the impugned decree although the learned Trial Judge has taken note of the fact that the relevant records of the Assessment Register of the suit property exhibited by the plaintiffs described the property as a thika property but while arriving at a conclusion, this vital evidence was overlooked and there was no detailed discussion on this aspect at all, which, however, found place in the suit filed by the present appellants against the present respondents, whereby reason of the order of remand, it was incumbent upon the learned Trial Judge to decide on the issue as to whether by virtue of the deed dated 17th February, 1984, the original defendant no.1, namely, the original plaintiff no.1 has really acquired any title to the property purchased by him. The said decision of the learned Judge, Tenth Bench may be a pyrrhic victory for the appellants in the present appeal but it certainly displaces the findings arriving at in the suit filed by the plaintiffs. The decree dated 26th April, 2013 is not under challenge.

On consideration of the aforesaid facts, we allow the appeal. The decree is set aside. However, we allow the decree for injunction as the plaintiffs are in possession of the suit property. The said decree of injunction is on the basis of the possessary right not based on title derived from the conveyance dated 17th February, 1984 which established from the report of the Engineer Commissioner and recorded in decree dated 26th April, 2013. However, we make it clear that the conveyance dated 17th February, 1984 is nonest in law.

In view of the fact that the property has become a thika tenanted property on the date of the conveyance, the legal heirs of Gopendra Krishna Kundu Chowdhury could not have sold the properties in favour of either of the parties. Gopendra Krishna has lost his property rights by operation of law and accordingly any transfer made thereafter would not convey any right on the basis of the principle "nemo dat quod non habt". A person is competent to transfer any property only if he has subsisting right, title or interest in it. If on the date of transfer, the right, title or interest of transferor to extinguish a transferee does not acquire any right on the basis of said latin maxim (see Union of India vs. Vijay Krishna Uniyal reported in (2018) 11 SCC 382 and Agnigundala Venkata Ranga Rao vs. Indukuru Ramchandra Reddy reported in (2017) 7 SCC 694).

CAN 4820 of 2017 was disposed of on 31st July, 2019 and the said application ought not to have appeared in the list today.

The Department is directed to record disposal of the said application, being CAN 4820 of 2017 on 31st July, 2019.

In view of the above considerations, CAN 7572 of 2018 is allowed and the appeal being FA 192 of 2010 is allowed in part.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.