Mohammed Dawood and Others vs Md. Ishaque and Others

Barin Ghosh and Navaniti Pd. Singh, JJ.—There is a registered sale deed dated 24th January, 1935 which suggests that thereby twenty four decimals of land was purchased by two persons, namely, Aklu Mian and Sheikh llahi Baksh. The land in question is situate within the jurisdiction of Katihar Municipality. Katihar Municipality permitted Aklu Mian and Sheikh llahi Baksh to construct a house on the said land. A house was thereupon constructed on the said land. One Altaf Hussain was the tenant of a portion of the said house. He died in 1954. Abdul Khalique and Jabbar were the sons of Altaf Hussain. Appellants are the sons of Abdul Khalique. llahi Baksh filed House Control Execution Case No. 109 of 1955 against the descendants of Altaf Hussain in order to obtain vacant possession of the portion of the house in occupation of Altaf Hussain, which was decreed. At that stage, the son of Aklu Mian, namely, Bahbood Hussain filed an application under Order 21 Rule 58 of CPC and thereby contended that in his capacity as landlord of the house in question, he has inducted the third son of Altaf Hussain in a room of the said house and, therefore, he cannot be evicted. The learned Munsif disposed of the said application by his order dated 16th March, 1956 whereby and under the application was dismissed. The learned Munsif held that Aklu Mian had 50% interest in the property. It was further held that llahi Baksh has in the meantime sold his interest in the property. The application of Bahbood Hussain was dismissed only on the consideration that eviction will enure to the benefit of the persons who are interested in the house. In the meantime on 27th June, 1955, llahi Baksh by a conveyance sold twelve decimals of such land and a part of the house constructed thereon. In the said conveyance, he purported to hold out that the remaining part of the property is retained by him. Aklu Mian was not even a witness to the said conveyance. Despite holding out in the said conveyance that he was the full owner of the said twenty four decimals of land and the house constructed thereon, when the Munsif by his order dated 16th March, 1956 held that Aklu Mian is 50% owner of the said twenty four decimals of land and the house constructed thereon, admittedly, llahi Baksh did not take any step to establish that in fact he is 100% owner of the said property. After the death of Aklu Mian, his two sons, namely, Bahbood Hussain and Shahabuddin filed Partition Suit No. 15 of 1956 against llahi Baksh, which was permitted to be dismissed for default on 30th June. 1956. At about that time, Money Suit No. 208 of 1956 was initiated by llahi Baksh against the appellants, which was dismissed with costs on 9th June, 1965. The sons of Aklu Mian were not parties to the said suit. The appellants thereupon put the decree for cost on execution. The sons of Aklu Mian were not parties to the said execution proceedings. In the execution proceedings, the remaining twelve decimals of land and part of the house constructed thereon purportedly still belonging to Sheikh llahi was sold and the same was purchased by the appellants. Sons of Aklu Mian were not parties to the said auction sale. In execution of the auction sale, the remaining twelve decimals of land and the part of the house constructed thereon, as was purportedly left after sale of twelve decimals of land and part of the house by llahi Baksh under the conveyance dated 27th June, 1955, was purportedly handed over to the appellants. It is not the contention of the appellants that in the writ executed to handover possession of the subject property, it was shown that the same is being handed over to the appellants from the custody of the sons of Aklu Mian.

Out of the two sons of Aklu Mian, one son Shahabuddin, died issueless. As a result the other son of Aklu Mian, Bahbood Hussain, inherited him. This Bahbood Hussain sold 50% share in the property, as inherited by him from Aklu Mian, to the plaintiff in the suit and the plaintiff filed the suit for declaration of his title.

At the trial, the principal defence of the appellants was that the suit is barred by limitation inasmuch as part of the property sold by Bahbood Hussain to the plaintiff was auction purchased by the appellants as far back as in 1961.

An impressive list of documents had been brought on record by the appellants but no document was brought on record by the appellants which would suggest that the original purchase of the property, namely, twenty four decimals of land by the sale deed dated 24th January, 1935, was financed exclusively by llahi Baksh. At the same time, no document was brought on record by the appellants to suggest that the house constructed on the said twenty four decimals of land was financed exclusively by llahi Baksh. According to llahi Baksh, in whose shoes-the appellants stepped into, he was the true owner; whereas Aklu Mian was the ostensible owner. The son of Aklu Mian dealt with the property holding out that Aklu Mian was the true owner of half of the subject property. To resist his claim, which was transformed into such sale, it was the boundened duty of the appellants to establish that in fact Hani Baksh was the exclusive owner of the land in question as well as the house constructed thereon and that could only be proved and established by producing appropriate documentary as well as oral evidence suggesting that the entire finance for the purchase and construction had been made by llahi Baksh and not a part thereof had been contributed by Aklu Mian.

While no attempt was made by the appellants to establish the same in the suit by tendering appropriate evidence, the Court below found on evidence that Bahbood Hussain constructed two rooms on northern verandah, one room on the southern side of the house, besides the kitchen and a latrine on the eastern portion with his own money. Therefore, before the Court below, there was no evidence upon which the Court below could proceed that the entire property was owned and held by llahi Baksh and, accordingly, even after having had sold half thereof, he still had the remaining half with him which would be auction sold. On the contrary the evidence on record was that the son of Aklu Mian with his own money made constructions on the land and added the same to the existing house. In a situation of this nature after having had sold 50% of the land and 50% of the house as was constructed on the land sold by the conveyance dated 27th June, 1955, Sheikh llahi had no interest in any part of the property which could be sold in auction sale and, accordingly, through the auction sale, the appellants acquired no interest in any part of the subject property. This is what has been held by the Court below which has been affirmed by the first appellate Court.

Before us, it is being contended that these findings are without consideration of material documentary evidences which have been listed in pages-30 to 32 of the petition filed in the instant appeal. Those documents suggest auction sale, delivery of possession, recording of mutation, etc., but they do not suggest that the land was purchased by llahi Baksh through his exclusive finance or the construction made thereon was also exclusively financed by him.

If a decree has not been passed against a person, that decree is not binding on him and, accordingly, he cannot apply for setting aside the said decree. In the instant case, the decree for cost was passed in a suit to which Aklu Mian and his sons were complete strangers. They could not, therefore, ask for recalling of the said decree. That decree was put into execution. In the execution proceedings, Aklu Mian and his sons were not parties. They could not ask the Court to set aside any of the orders passed in the said execution case. In the execution case, the property of Aklu Mian and his sons was purported to be sold. Inasmuch as Aklu Mian and his sons had nothing to do with the decree or with the execution proceedings, they were not required to take any step to have that sale set aside for the law is well settled that by any action of strangers even through Court, the right of the true owner cannot be interfered with, without notice to him. Therefore, the defence of appellants was totally misconceived in the instant case. A thing, which is illegal, is non est and does not exist. Step taken to sell property of "C" in a litigation inter se "A" and "B" is not only illegal but void ab initio. "C" is not required to take any step to have such sale set aside.

Merely because Katihar Municipality had, as suggested, at one point of time accepted the defendants as part owners of the property in question, by reason thereof, the title of Aklu Mian and his sons in the property does not stand ob-literated for it is well known that mutation is made in order to make the Municipality aware of the person responsible to pay rates and taxes pertaining to the property, by reason of mutation, no transfer takes effect. For these reasons, we find no reason to interfere with the judgment and decree. The judgment and decree under appeal remain and the appeal is dismissed.