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2017 DIGILAW 1096 (GAU)

Abdul Malik Choudhury v. Hemendra Kumar Das

2017-08-10

PRASANTA KUMAR DEKA

body2017
JUDGMENT & ORDER : 1. Heard Mr. M.H. Rajbarbhuiya, learned counsel, appearing on behalf of the appellant. 2. The present appellant is the defendant in Title Suit No. 691/2006 preferred by the plaintiff/respondent. It the case of the plaintiff/respondent that he purchased the suit land from one Arun Kumar Chanda vide registered sale deed No. 1227/1997, dated 19.6.1997 (Ext. 1) on payment of proper consideration and he was delivered possession. Arun Kumar Chanda, the vendor of the plaintiff/respondent purchased the said land from the recorded co-sharer, Abdul Latif vide registered sale deed No. 436/1980, dated 29.1.1980 (Ext. 2) where after he was delivered possession. Abdul Latif, the vendor of Arun Kumar Chanda purchased the land measuring 1 Bigha 16 Kathas 6 Chatak in Dag No. 162 of the suit patta which was the subject matter of T.S. No. 28/1980 in the court of the Munsiff No. 4, Silchar at Cachar. The said transaction of sale between Abdul Latif and Arun Kumar Chanda took place during the pendency of the said T.S. No. 28/1980. The said sale deed, Ext. 2 was executed on 29.1.1980. The plaintiff respondent having maintained his possession over the suit land started his cultivation. The defendant/appellant threatened to forcefully harvest the produce. Such threatening created a cloud over the title of the plaintiff/respondent and as such the suit was filed for declaration of his right, title, interest, confirmation of possession and permanent injunction. 3. The defendant/appellant contested the claim of the plaintiff/respondent by filing written statement. They denied the claim of the plaintiff/respondent. The plea taken by them is that neither Arun Kumar Chanda nor the plaintiff/respondent acquired any title over the suit land from Abdul Latiff as he had exhausted his saleable interest over the suit land before execution of the sale deed in favour of Arun Kumar Chanda. Arun Kumar Chanda had no possession over the suit land and as such a criminal case was initiated by the plaintiff/respondent against them which resulted in acquittal of the defendant/appellant. For the said reason, the defendant/appellant prayed for dismissal of the suit. 4. On the basis of the pleading, the following issues were framed:- (1) Whether there is cause of action for the suit? (2) Whether the suit is maintainable in its present form and manner? (3) Whether suit is bad due to defect of parties? (4) Whether the suit is properly valued and stamp paid thereon? 4. On the basis of the pleading, the following issues were framed:- (1) Whether there is cause of action for the suit? (2) Whether the suit is maintainable in its present form and manner? (3) Whether suit is bad due to defect of parties? (4) Whether the suit is properly valued and stamp paid thereon? (5) Whether the plaintiff has right, title and interest over the schedule described land? (6) Whether the plaintiff has possession over the suit land? (7) Whether the plaintiff is entitled to any relief and if so, what? 5. The trial court decreed the suit vide its judgment and decree dated 26.3.2013. Thereafter the defendant/appellant preferred Title Appeal No. 9/2013 in the court of the learned Civil Judge, No. 1, Cachar at Silchar challenging the judgment and decree passed by the trial court. The first appellate court vide judgment and decree, dated 16.3.2016 dismissed the appeal upholding all the issues decided by the trial court in favour of the plaintiff/respondent. The said judgment and decree dated 16.3.2016 is put under challenge in the present second appeal, which is taken up for admission under Order 41 Rule 11 CPC today. 6. Mr. Rajbarbhuiya, learned counsel for the appellant submits that the only question involved in this second appeal is that whether the sale transaction between Abdul Latif and Arun Kumar Chanda vide registered sale deed, Ext. 2 is hit under Section 52 of the Transfer of Property Act (T.P. Act), as the said transfer took place during the pendency of T.S. No. 28/1980. 7. Considered the submissions of the learned counsel. Perused the judgment and decree of both the courts below. The trial court while deciding the Issue No. 5 with regard to the right, title and interest over the suit land of the plaintiff/respondent came to the finding that the Ext. No. 2 is the sale deed by way of which Arun Kumar Chanda purchased the land from Abdul Latif on 29.1.1980. It is also observed by the trial court that T.S. No. 28/1980 was pending at the time of execution of Ext. 2. However, in the said suit, the judgment and decree was passed in favour of Abdul Latif, i.e. the vendor of Arun Kumar Chanda. Section 52 of the Transfer of Property Act does not stipulate that no sale transaction could be carried out during the pendency of a suit. 2. However, in the said suit, the judgment and decree was passed in favour of Abdul Latif, i.e. the vendor of Arun Kumar Chanda. Section 52 of the Transfer of Property Act does not stipulate that no sale transaction could be carried out during the pendency of a suit. However, it is stipulated that the parties to the suit or the transferee pendentelite of an interest in an immovable property which is the subject matter of a suit from any of the parties, the suit will be bound in so far as that interest is concerned by the proceeding in the suit. However, the transferee is the representative in the interest of the party from whom he has acquired that interest. 8. From the said stipulation of Section 52 of the Transfer of Property Act, it is seen that the said T.S. No. 28/1980 was decreed in favour of Abdul Latif, the vendor of Arun Kumar Chanda. In such a situation, it is apparent that the said sale transaction between Abdul Latif and Arun Kumar Chanda is not hit by Section 52 of the T.P. Act. Accordingly, the submission of Mr. Rajbarbhuiya cannot be accepted. 9. This second appeal is devoid of any substantial question of law and accordingly, it is dismissed.