Kaniz Fatima & Ors vs Ar Md. Nasim Akhtar & Ors
2022 Latest Caselaw 2651 Cal

41      10.05.2022                          FA 31 of 2022
                                                  with
Ct-08                          I.A No. CAN 1 of 2020(Old No. 1438 of 2020)


                                         Kaniz Fatima & Ors.
                                                 Vs.
ar                                      Md. Nasim Akhtar & Ors.


                        Mr. Ayan Banerjee
                        Ms. Atreyee De Ganguly
                        Ms. Debasree Dhamali
                                    ... For the Appellants

                        Mr. Rajdeep Bhattacharya
                        Mr. S. Siddique
                        Mr. Shahnawaj Alam
                                    ... For the Respondents

By consent of the parties the appeal is treated as on day's list and is taken up for hearing along with the application being CAN 1438 of 2020.

Mr. Ayan Banerjee, learned Counsel appearing on behalf of the unsuccessful defendants/appellants, has submitted that the decree is bad. In view of the fact that the Trial Court has in effect declared the document of title of the defendants/appellants void and thereby made out a third case, which is not permissible in law.

This appears to be the sum and substance of the argument of Mr. Banerjee.

We have considered the judgment passed by the Trial Court. It is an elaborate and well- reasoned judgment.

The issues raised by learned counsel appearing for the appellants have been elaborately dealt with by the learned Trial Judge. The Trial Court did not say that the document of

title produced by the defendants in support of their claim is void. The Trial Court had, in fact tried to ascertain the title and ownership of the properties as claimed by the parties to the suit. In deciding the said issue the trial Court found that the property in question was sold in favour of the plaintiffs under a Deed of 1951. It is a specific demarcated portion of the land. The Trial Court relying upon the judgment of our Court in Rabi Kumar Das & Ors. Vs. Chittaranjan Das & Ors., reported in 2006(4) CHN 302 Cal has arrived at a finding that a purchaser, who has purchased the well demarcated property, does not stand in the same footing as any other co-sharer. The purchaser becomes the absolute owner of the property. The evidence on record would clearly suggest that the vendor of the defendants purchased 3 cottahs of land from the original owner in respect of a specific demarcated portion. The land over which the plaintiffs claimed their right, title and interest is a specific demarcated portion and was sold in their favour by the vendor prior to the Deed executed by the vendor in favour of the appellants in 1952. By reason of execution of the prior Deed, the vendor of the defendants could not have sold the self-same property as they had already, lost their right, title and interest by reason of the earlier sale of a demarcated portion in favour of the plaintiffs in 1951. They could not have transferred a non-existing right of ownership by a subsequent deed of transfer in favour of another vendor. The latix maxim Nemo dat quod non habet is clearly applicable in this case. Person is competent to transfer any property only if he has subsisting right, title or

interest in it on the date of transfer. There was no dispute that the Deed in favour of the plaintiffs was executed in the year 1951 prior to the Deed on which the defendants are relying to establish their claim. The appellants are relying upon a deed executed in the year 1952. The Trial Court on examination of the said two Deeds arrived at a finding that the plaintiffs by virtue of the sale deed of 1951 had acquired title and ownership in respect of a demarcated portion of the suit property. The said findings may non-suit the defendants in respect of the self-same property, but it does not mean that the Court in making such declaration has stepped beyond its jurisdiction or made out a third case for the parties.

The finding of the Trial Court in this regard are:-

"However, we must not be unmindful that predecessor of the plaintiff purchased 3 cottahs of land out of 8 cottah 15 chittak 27 sq ft from premises no. 12/1, Noor Ali lane and thereby rest 5 cottah 15 chittak 27 sq ft was still owned by the original owners namely Kulsum Bibi and Ahmed Hussain in respect of the said plot and they had the every right to execute the deed in respect of said 5 cottah 15 chittak 27 sq ft of land in favour of any person. The vendor of the present defendants subsequently purchased 3 cottah of land from the said plot and the measurement mentioned in the schedule of the deed is identical to the schedule of purchase deed of plintiff's predecessor.

We all know that a seller who had

already transferred her right, title and interest with regard to any land has no right to sell out the plot of land already sold. But here as I have already discussed the schedule of the entire 8 cottah 15 chittak 27 sq ft of land, and the land transferred under the deed of 1951 (Ext.1) and deed of 1952 (Ext.A) have taken into consideration conjointly would not suggest that the 3 corrah land sold under Ext. 1 is actually the same piece of land intended to be transferred under Ext. A. There have not been any investigation commission conducted over the suit property either.

Further it is pertinent to mention herein that mere mentioning in the schedule that "wherein stnds the hut of Jainab Bibi in the schedule of Ext. A would not make the entire registered instrument vitiated as a mere statement in the schedule would not vitiate the entire transaction or transfer which took place in the year 1952 for valuable consideration.

This court is of the view that the original vendor had no right to sell out the specific portion of the suit plot which was already sold out to the plaintiff's predecessor and thereby the vendor of the defendant did not acquire any right, title and interest in respect of the specific portion mentioned in the schedule of the plaint but the original owner had right to sell out the suit property described in schedule A of the plaint after selling out 3 cottah of land to the predecessor of the

defendants.

In view of the above discussion and considering the deed in question, this court is of the firm view that the plaintiff became the owner of the suit property by virtue of registered deed for the year 1951."

Mr. Banerjee at this stage has contended that in absence of any appointment of Advocate Commissioner the property could not be ascertained and accordingly, even if the plaintiffs claim declaration over the demarcated portion, since there is a boundary dispute, the matter should have been resolved by appointment of an Advocate Commissioner.

If the appellants were unsure about the extent and nature of their possession on the basis of their Deed of purchase in the year 1952, nothing had prevented them to file an application for appointment of an Advocate Commissioner.

In a suit for partition irrespective of the fact that whether a party is a plaintiff or defendant, can file an application for commission, if there is any dispute with regard to the nature and extent of the ownership. The plots were well demarcated are quite evidence from the Exhibit-1. Insofar as there are overlapping claims on self same property undoubtedly the prior deed, which in this case the Deed of 1951 would prevail over the Deed of 1952 being originated from the same vendor.

On such consideration, in our view, the Trial Court has rightly held that the original vendor had no right to sell out the demarcated portion of

the suit property, which was already sold to the plaintiffs' predecessor, to another purchaser. In view of the above, we do not find any reason to interfere with the decree passed by the Trial Court.

Accordingly, the appeal being FA 31 of 2022 is disposed of.

In view of disposal of the appeal, nothing remains to be decided in the application for stay being CAN 1438 of 2020 and the same is accordingly disposed of.

(Sugato Majumdar,J.) (Soumen Sen, J.)