Tamij Uddin Laskar vs Majibun Nessa And Ors

This regular second appeal is directed against the judgment and decree dated 15-07-2009 passed by learned Civil Judge, Cachar, Silchar, in Title Appeal No. 11/2007, whereby, learned first appellate court dismissed the suit of the plaintiff by allowing the appeal filed by the defendant.

The facts leading to the second appeal are as follows :-

The appellant (hereinafter referred to as plaintiff) filed the Title Suit No. 223 of 2006 for declaration of right, title and interest and recovery of possession. The case of the plaintiff was that he purchased the suit land measuring 18 kathas covered by dag no. 129 of 2nd R.S. Patta No. 21 and dag no. 128 of 2nd R.S. Patta No. 20 by registered deed no. 463/1998, from the legal heirs of Ajibun Nessa. Ajibun Nessa and her brother Sunahar Ali, predecessors-in-interest of the defendants, inherited the property left by their father Indan Ali. Ajibun Nessa and Sunahar Ali amicably partitioned their ancestral property. As per such amicable partition, the suit land fell in the share of Ajibun Nessa and they had been possessing their respective shares within the specific boundary. As Ajibun Nessa was married at a distant place, she was possessing the suit land through one Khalilur Rahman and after his death, through her son Toffojul Ali. After purchasing the land from the legal heirs of Ajibun Nessa, the plaintiff has been possessing the suit land. The defendant tried to dispossess the plaintiff from the suit land and consequently, he instituted a criminal proceeding before the executive magistrate and eventually the plaintiff filed the instant suit initially for declaration of title and confirmation of possession and injunction. However, subsequently by amendment of the plaint recovery of possession was also sought for. The defendants contested the suit by filing written statement.

The pleaded case of the defendants was that after death of Indan Ali, his son Sunahar Ali inherited 2/3rd share of the property left by Indan Ali, which was mutated in his name and he was enjoying the possession over the said land. It has been further stated, that Sunahar Ali has been possessing the entire land left by his father, including the 1/3rd share of Ajibun Nessa beyond the period of limitation openly, peacefully and without interruption and Ajibun Nessa never possessed the suit land. It was the case of the defendants, that neither Ajibun Nessa, nor the plaintiff possessed the suit land, and the possession of the suit land was never delivered to the plaintiff.

On the basis of the above pleadings, learned Munsiff framed the following issues :-

Whether there is any cause of action for the suit ?

Whether the suit is maintainable in it's present form and manner or in law or in facts ?

Whether the suit is barred by limitation ?

Whether the suit is bad for estoppel waiver and acquiescence ?

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

Whether the suit is barred under the provisions of specific Relief Act, Assam Land and Revenue Regulation 1986 and Civil Procedure Code ?

Whether the suit land is properly described ?

Whether the plaintiff has right, title and interest and possession over the suit land ?

Whether the plaintiff is entitled to get the decree as prayed for ?

To what other relief/reliefs, if any, the plaintiff is entitled to ?

Both the parties adduced evidence and after hearing the parties learned Munsiff decreed the suit of the plaintiff.

Aggrieved, the defendants preferred an appeal. Learned First Appellate Court allowed the appeal by it's judgment and decree dated 15-07-2009 and thereby dismissed the suit of the plaintiff. Hence, the plaintiff filed the present second appeal, which was admitted for hearing on the following substantial question of law :-

"A. Whether the learned first appellate court erred in holding the suit to be not maintainable and bad for non-joinder of necessary party due to non-impleadment of the vendors of the plaintiff, although no relief has been claimed against them and one amongst the said vendors deposing as P.W. 4 unequivocally affirmed and proved the execution and registration of Exhibit-1 (sale deed) by himself and his three other brothers in favour of the plaintiff/purchaser ?"

During the course of argument, another additional substantial question of law was raised and the same is as follows :-

"Whether the finding of the first appellate court to the effect that the defendants were in possession of the suit land in exclusion of his sister Ajibun Nessa, the predecessor in interest of the vendors of the plaintiff and therefore, no possession was delivered to the plaintiff which rendered the sale deed in favour of the plaintiff invalid and not maintainable was correct and proper.

I have heard Mr. G.N. Sahewalla, learned senior counsel for the appellant and Mr. H. Das for the respondents.

Mr. Sahewall submitted that the vendors of plaintiff were not necessary parties to the suit in the instant case, inasmuch as, admittedly the vendors of the plaintiff being legal heirs of Ajibun Nessa were the owner of the suit land and the factum of plaintiff having purchased the suit land was never disputed. Further contention of Mr.Sahewalla was that, though, defendants challenged the title of the plaintiff raising a plea of adverse possession, such plea could not be proved and as such, learned First Appellant Court erroneously dismissed the suit of the plaintiff. Learned counsel for the respondents submits, that the suit for declaration of title and exclusive possession was not maintainable in absence of partition. It is also contended that suit was bad for non-joinder of necessary parties, being the vendors of the plaintiff.

Substantial Question No. 1 : The admitted position was that the plaintiff purchased the suit land by a registered deed no. 463/1998 from the legal heirs of Ajibun Nessa, inasmuch as, the execution of the sale deed by the legal heirs of Ajibun Nessa in favour of the plaintiff was never disputed. That Ajibun Nessa inherited the suit land from her deceased father Indan Ali was also not disputed. In fact, one of the vendors of the plaintiff was examined as a witness(PW 4), who also deposed admitting the execution of the sale deed in favour of the plaintiff. Apparently no relief was sought against the vendors of the plaintiff. It is the trite law, that there is a distinction between the necessary party and the proper party. A necessary party, is one in absence of whom, the court is not in a position to decide the dispute raised in the suit. It is only the necessary party, whose absence is fatal. Mere non-joinder of a party, against whom no relief is claimed and whose presence is only formal, having no affect on the decision or the suit is not fatal. In the instant case, admittedly Ajibun Nessa was the owner of the suit land and the legal heirs of Ajibun Nessa sold the suit land to the plaintiff by registered sale deed which was not denied by the defendants. The plaintiff's suit was basically for declaration of right, title and interest and recovery of possession from the defendants. The plaintiff has clearly stated in the pleadings, that there was amicable partition between Ajibun Nessa and Sunahar Ali and they were possessing their respective shares within the specific boundary. Such pleadings as regards the amicable partition between Ajibun Nessa and Sunahar Ali was also not denied specifically, which amounted to admission of the factum of amicable partition.

The pleaded case of the defendants was that the predecessor of the defendants late Sunahar Ali was possessing his 2/3rd share of ancestral land left by Indan Ali along with the share of Ajibun Nessa. Learned counsel for the defendants submitted relying on a decision of this court in Bolo Ram Kumar and Others -VS- Dandi Ram Kumar and Ors reported in AIR 1950 Assam 1, that the suit for declaration of exclusive title and separate possession was not maintainable for want of partition. Such submission of the learned counsel for the defendant is totally unacceptable, reason being that, amicable partition between Ajibun Nessa and Sunahar Ali has not been denied specifically by the defendants.

Admittedly the vendors of the plaintiff being the legal heirs of Ajibun Nessa were the owner of the suit land. The execution of the sale deed by the legal heirs of Ajibun Nessa in favour of the plaintiff was also not disputed. Therefore, in view of the nature of dispute and the relief sought, presence of the plaintiff's vendor was not necessary in the instant suit, inasmuch as, the suit in its present form could very well be decided in presence of the plaintiff and the defendants and as such, the vendors of the plaintiff could by no stretch of imagination be held to be a necessary party for the instant suit between the plaintiff and the defendants. Therefore, in my considered view, learned appellate court fell in grave error while holding the suit to be bad and not maintainable for non-joinder of the vendors of the plaintiff. Accordingly, the substantial question no. 1 is answered in affirmative and in favour of the appellant/plaintiff.

Substantial question No. 2 : Learned first appellate court decided the issue of title against the plaintiff on the premise, that the sale was not valid for want of delivery of possession. According to the learned First Appellate Court, the plaintiff failed to prove, that the possession of the suit land was delivered to the plaintiff, and as such, the sale of the suit land was not valid. The admitted position was that the suit land originally belonged to Indan Ali and after his death, the suit land was inherited by his son Sunahar Ali, the predecessor in interest of the defendants and daughter Ajibun Nessa. The claim of the plaintiff was that he purchased the suit land from the legal heirs of Ajibun Nessa by registered sale deed no. 463/1998 and the execution of the sale deed by the legal heirs of Ajibun Nessa in favour of the plaintiff was not disputed. Specific case of the plaintiff was that after death of Indan Ali, his property was amicably partitioned between his legal heirs Sunahar Ali and Ajibun Nessa. This factum of amicable partition was not specifically denied by the defendants. Rather, the pleaded case of the defendants was that after death of Indan Ali, his son Sunahar Ali and daughter Ajibun Nessa got mutation in respect of the landed property left by Indan Ali. The predecessor-in-interest of the defendants, late Sunahar Ali, inherited 2/3rd share, which was also mutated in his name. However, the defendants averred in the written statement, that Sunahar Ali used to enjoy the entire land of his father including the share of Ajibun Nessa and Ajibun Nessa did not have possession over the suit patta land. The defendants, however, made an averment in the written statement, that Sunahar Ali had been possessing the entire ancestral property including the share of Ajibun Nessa openly, peacefully and without any interruption beyond the period of limitation. Except making the above averment in the written statement, that Sunahar Ali was possessing his 2/3rd share of ancestral property along with the share of Ajibun Nessa beyond the period of limitation, defendants did not raise any specific plea of adverse possession by assertion of hostile title. It is trite law, that mere possession for whatever length of time per-se, does not amount to adverse possession in absence of assertion of hostile title. In fact, there was no specific pleading of adverse possession, and as such, neither any issue of adverse possession was framed, nor any evidence was adduced to that effect. It is the trite law that there cannot be any presumption of adverse possession. One who seeks to claim adverse possession has to raise a specific plea with all particulars and to prove the same by adducing evidence. This being the position, even if it is assumed for the sake of argument, that Sunahar Ali predecessor-in-interest of the defendants was possessing the suit land for whatever length of time, such possession could not affect the admitted title of Ajibun Nessa, or her legal heirs. Apparently, learned first appellate court dismissed the plaintiff's claim of title, basically on the ground that Ajibun Nessa or her legal heirs did not have possession over the suit land and therefore, possession was not delivered to the plaintiff, which rendered the sale of the suit land in favour of plaintiff invalid. Such finding of the learned first appellate court was totally untenable.

The pleaded case of the plaintiff was that Ajibun Nessa was possessing the suit land through Khalilur Rahman and after death of Khalilur Rahman, she was possessing the suit land through Toffajul Ali, son of Khalilura Rahman. The PW 4, one of the vendor of the plaintiffs and legal heirs of Ajibun Nessa also supported the case of the plaintiff and deposed that Ajibun Nessa possessed the suit land through Khalilur Rahman and after his death through Tofazul Ali (son of Khalilur Rahman). Be that as it may, it is the settled position of law that delivery of possession is not a pre-condition for valid sale of immovable property value of which is Rs. 100/- and more.

Section 54 of the Transfer Property Act reads as follows :-

"54. " Sale" defined - ---- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made. - Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale- A contract for the sale of immovable property is a contract that a sale for such property shall take place on terms settled between the parties. it does not, of itself, create any interest in or charge on such property."

A plain reading of the above provision of Section 54 would show, that transfer of immovable property by way of sale, value of which is Rs. 100/- or above, can be given effect only by a registered instrument for a price paid or promised or part-paid and part-promised, and as such, delivery of possession is not at all a necessary pre-condition to affect the sale of immovable property (see Prasad Chauhan v Jauadhana Das 2015 (5) GLT 437 and Monnat Ranjan Trivedi v. Gopal Krishna Tea Co. and Ors. 2006 (2) GLR 565). When the defendants have not been able to establish any plea of adverse possession and the sale of the suit land in favour of the plaintiffs by the legal heirs of Ajibun Nessa by registered deed was not in dispute, learned first appellate court fell in grave error, while holding that such sale was invalid for want of delivery of possession. Accordingly, the substantial question no. 2 is also answered in negative and in favour of the plaintiff/appellants.

For the reasons stated above, the second appeal is allowed. Accordingly, the judgment and decree passed by the First Appellate Court is set aside and the judgment and decree passed by learned Munsiff is restored. Decree be prepared accordingly.

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