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2019 DIGILAW 40 (JHR)

Md. Belal Ahmad v. Md. Yakub

2019-01-04

ANIL KUMAR CHOUDHARY

body2019
JUDGMENT : Anil Kumar Choudhary, J. 1. Heard the parties. 2. This miscellaneous appeal has been filed by the appellant being aggrieved by the judgment dated 26.06.2008 passed by Additional District Judge, Fast Track Court, III, Chatra in Tide Appeal No. 26 of 2005 by which learned court below remanded the suit to learned court below to implead Tahir Khalifa and heirs of Noor Khalifa and decide the suit on merit. 3. The brief fact of the case is that it is admitted case of the parties that Sahdul Khalifa and Nagbanshi Khalifa along with three other persons, were recorded tenants of the suit land. Other three recorded tenants had either died or become traceless and the suit property remained with Sahdul Khalifa and Nagbanshi Khalifa. The defendant Nos. 2 to 5 are descendants of Nagbanshi Khalifa. The defendant No. 1, Noor Khalif a and Tahir Khalifa are the descendants of Sahdul Khalifa. The plaintiff purchased the suit land only from the descendants of Nagbanshi Khalifa being the defendant Nos. 2-5 vide registered sale deeds dated 18.06.1987 and 02.07.1987. It is admitted case of the parties, that there has not been any partition between Nagbanshi Khalifa and Sahdul Khalifa and it is also not disputed by the plaintiff that Noor Khalifa and Tahir Khalifa are also the descendants of Sahdul Khalifa. The plaintiff filed the suit for declaration of title and confirmation of possession and permanent injunction restraining the defendants or their men or agents from interfering or obstructing in any manner with the possession of the plaintiff over the schedule B land of the suit and other reliefs. It is also admitted case of the parties that Noor Khalifa or Tahir Khalifa has not been impleaded as parties in the suit and the suit has been decreed. It is also admitted case of the parties that Noor Khalifa or Tahir Khalifa has not been impleaded as parties in the suit and the suit has been decreed. Learned first appellate court inter alia observed in the impugned judgment that as admittedly the joint property of Sahdul Khalifa and Nagbanshi Khalifa has been purchased by the plaintiff from the defendants- who are the descendants of one of the joint owners of the property, hence, all the descendants of the other joint owner of the property i.e. the descendants of Sahdul Khalifa should also be impleaded as parties to, the suit but since the plaintiff has impleaded only the descendants of Nagbanshi Khalifa,-the learned first appellate court remanded the suit, as already indicated above by setting aside, the impugned judgment, directing the trial court to implead Tahir Khalifa and heirs of Noor Khalifa. 4. Mr. Saibal Mitra, learned counsel for the appellant submits that learned first appellate court failed to take note of the fact that Sahdul Khalifa and Nagbanshi Khalifa being full brothers and owners in possession of the entire 7.52 acre of land, which is schedule A land of the plaint and as the plaintiff has purchased less than half of the said land from admitted heirs of one of the said brothers, hence, the descendants of Sahdul Khalifa apart from the defendant No. 1 are not necessary parties to the suit. The second limb of argument of learned counsel for the appellant is that since defendant No. 1 is claiming to be the owner of the entire suit property, hence, other descendants of Sahdul Khalifa are not necessary parties to the suit. It is further submitted that the impugned judgment of the learned first appellate court is not in consonance with law, hence, it is submitted that the impugned judgment be set aside. 5. Dr. H. Waris, learned counsel for the respondents, on the other hand, defended the impugned judgment and submitted that the plaintiff does not admit that the defendant No. 1 is the sole owner of the suit property, hence, the plaintiff is not entitled to plead that defendant No. 1 is the sole owner of the suit property, hence, the other descendants of Sahdul Khalifa are necessary parties. It is further submitted by Dr. It is further submitted by Dr. Waris that in absence of any partition between two full brothers -Sahdul Khalifa and Nagbanshi Khalifa, they and subsequently their descendants being tenants in common in respect of the suit property, none of descendants of the said Sahdul Khalifa or Nagbanshi Khalifa are individually and severally entitled to transfer the property which has not been partitioned in favour of anybody. It is further submitted by Dr. Waris that it is also the case of the descendants of Sahdul Khalifa that Nagbanshi Khalifa has transferred his entire share to Noor Khalifa and Tahir Khalifa who are the descendants of Sahdul Khalifa through Tamsukh Ekrarnama which has been marked as Exhibit E during the trial, hence, certainly on that count also, Noor Khalifa and Tahir Khalifa and their descendants are the necessary parties to the suit. Hence, it submitted by Dr. Waris, that the learned first appellant court has rightly remanded the suit for impleading the legal representatives of Noor Khalifa and Tahir Khalifa hence, the impugned judgment does not warrant interference of this court in exercise of its appellate jurisdiction and this appeal being without any merit be dismissed. It is further submitted by Dr. Waris that in the meanwhile, after passing of the impugned judgment Tahir Khalifa has also expired and Noor Khalifa expired before passing of the impugned judgment by learned 1st appellate court, hence, it is submitted that learned trial court be directed to implead the legal representatives of Tahir Khalifa and Noor Khalifa as well. Learned counsel for the appellant also concedes that Tahir Khalifa is also dead but he does not know when he died. 6. Having heard submission made at the Bar and after going through the record, I find that it is admitted case of the parties that the suit property originally belonged to two brothers Sahdul Khalifa and Nagbanshi Khalifa, they being the own full brothers and owners of the suit land and there has not been any partition of the property. A part of the un-partitioned property has been sold by some of the legal representatives of one of the recorded tenants. 7. A part of the un-partitioned property has been sold by some of the legal representatives of one of the recorded tenants. 7. Under such circumstances, I do not find any illegality in the observation of the first appellate court in the impugned judgment that the descendants of Sahdul Khalifa are necessary parties to the suit, when it is the admitted case of the parties that Noor Khalifa and Tahir Khalifa were descendants of Sahdul Khalifa and after their death, their legal representatives have succeeded to the property of Sahdul Khalifa. Under such circumstance, I do not find any merit in this appeal, accordingly, the same is dismissed on contest but in the circumstances, without costs. Further, it is admitted case of the parties that Tahir Khalifa has also died, hence, the trial court should give opportunity to the plaintiff to implead the heirs of Tahir Khalifa and heirs of Noor Khalifa and decide the suit on merit. 8. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this judgment.