Ahmed Ali Molla & Anr vs Sahera Bibi
2022 Latest Caselaw 6603 Cal

Dl. September

11. 15, 2022 S.A. 30 of 2022

Ahmed Ali Molla & anr.

Vs.

                                           Sahera Bibi

                              The    appellants   are   not   represented,   nor     any

                  accommodation is prayed on their behalf.

It appears that the mater was earlier appeared on

October 1, 2021, when none had appeared on behalf of the

appellants to move the appeal for admission. Accordingly, a

direction was passed by a co-ordinate bench of this court for listing

the matter on October 7, 2021 for recording dismissal. Thereafter

the matter is again appearing in the list since September 7, 2022.

We propose to decide the question of admission of the present

second appeal on the basis of the materials available on record.

The present appeal has arisen out of a judgment and

decree of affirmation dated September 30, 2005 passed by the

learned Additional District Judge, Third Court at Alipore, South 24-

Parganas, in Title Appeal No. 215 of 2002 arising out of judgment

and decree dated January 29, 2002 passed by the learned Civil

Judge (Senior Division), Third Court at Alipore, in Title Suit No. 4

of 1998, which is a suit for declaration and permanent injunction.

The trial court tried two suits, namely, Title Suit No. 27

of 199 and Title Suit No. 4 of 198, analogously as per order no. 37

dated June 16, 2001. Title Suit No. 27 of 1997 was filed by Abdul

Karim and others against Ayesa Bibi, Saheda Bibi and Ahmed Ali

Molla for declaration and permanent injunction. Title Suit No. 4 of

1998 was filed by Ahmed Ali Molla and Saheda Ahmed against

Sahera Bibi for declaration, partition and injunction.

The learned trial judge, on the basis of the evidence on

record, arrived at a finding that the plaintiffs in Title Suit No. 4 of

1998 have no cause of action to file the suit for partition because

they have already partitioned the said property, which would be

reflected from the deeds of gift executed by each other, and they are

in exclusive possession of their portion in the suit property by

reason of the said deeds of gift.

The moot question for determination was whether the

deed of gift dated September 27, 1985 was acted upon and whether

the deed of gift was accepted by the plaintiffs. It was also fell for

consideration before the trial court as well as before the first

appellant court whether the deed of gift was cancelled subsequently.

The suit property in both the suits relates to Q-40, S. A.

Farookee Road. In Title Suit No. 27 of 1997, the plaintiffs claimed

ownership to the extent of 16 annas share and in Title Suit No. 4 of

1998, the plaintiffs, who are the defendants no. 2 and 3 in Title Suit

No. 27 of 1997, have prayed for partition to the extent of 2 annas

share.

It was found that one Md. Ajim was the original owner

of the suit property along with other properties being Q-43, |Diwan

Bagan Nisar Mistry Lane and Q-42, S.A. Farookee Road. Md. Ajim

died leaving behind him two daughters, namely, Sahera Bibi, who is

the plaintiff no. 1 in Title Suit No. 27 of 1997 and the defendant in

Title Suit No. 4 of 1998, and Saheda Ahmed, who is the plaintiff

no. 2 in Title Suit No. 4 of 1998 and defendant no. 2 in Title Suit

No. 27 of 1997, and his wife, namely, Ayesha Bibi since deceased,

who was defendant no. 1 in Title Suit No. 27 of 1997. According to

Mohammedan law, Sahera and Saheda got 7 annas share each and

Ayesha got 2 annas share in the properties left by deceased Md,.

Ajim. This is an admitted position that Sahera and Ayesha

transferred their 9 annas share in respect of the properties being Q-

42, S.A. Farookee Road and Q-43, Diwan Bagan in favour of

Saheda Ahmed and her husband, Ahmed Ali Molla by way two

deeds of gift dated September 27, 1985 (exhibits 4 and 5). As such,

Saheda Ahmed and Ahmed Ali Molla became the exclusive owners

of the properties being Q-43, Diwan Bagan Nisar Mistry Lane and

Q-42, S.A. Farookee Road, as Saheda Ahmed already inherited 7

annas share in respect of the two properties.

It was also found that Auyesha Bibi and Saheda Ahmed

transferred their shares in respect of the suit property in favour of

Sahera Bibi and her husband, Ahjdul Karim, who are the plaintiffs

in Title Suit No. 27 of 1997, by virtue of a registered deed of gift

dated September 27, 1985 being exhibit-1.

The plaint case in Title Suit No. 27 of 1997 was that the

plaintiff no. 2 inherited 7 annas share in the suit property as legal

heir of deceased Md. Ajim and by virtue of the gift deed dated

September 27, 1985 being exhibit-1 they became owners of 9 annas

share in respect of the suit property. As such, they got 16 annas

share in the suit property. On the other hand, the defendants in Title

Suit No. 27 of 1997 claimed that the deed of gift dated September

27, 1985 (sexhibit-1) was never acted upon as the possession was

not delivered to the plaintiffs. Therefore, the defendants in Title Suit

No. 27 of 1997 contended that the plaintiffs did not acquire 9 annas

share in the suit property. The defendants further contended that by

way of a deed of cancellation dated September 29, 1993, being

exhibit-A, Ayesha Bibi and Saheda Ahmed cancelled the deed of

gift dated September 27, 1985 (exhibit-1).

On the basis of the aforesaid facts and the evidence

adduced by the parties, it needs to be ascertained whether any

substantial question of law is involved in the second appeal or not.

It is evident that from the record that the heirs of Md.

Ajim settled the dispute amongst themselves amicably. In view of

the compromise arrived at between themselves, one house of Md.

Ajim was given to his wife and two other houses to the defendants.

By way of deed of transfer each of them transferred their respective

shares. The deed of conveyance in the name of the wife of Md.

Ajim was executed by both the defendants. The defendants

executed deeds of gift in favour of Sahera Bibi and himself in

respect of Q-43, Diwan Bagan Nisar Mistry Lane and Q-42, S.A.

Farookee Road. All the parties accepted their respective deeds of

gift. The deeds of gift are with Ahmed Ali Mollak, which were

marked as exhibits. The claim of the plaintiffs' witness no. 1, that

the deeds of Ayesha and Sahera were not proper as they were Urdu

speaking ladies whereas the deeds are in Bengali, was not accepted.

Exhibit-1 clearly shows that Ayesha Bibi and Saheda

Ahmed transferred their shares in favour of Ahdul Karim and

Sahera Bibi. In view of the earlier settlement amongst the parties,

the subsequent deed of cancellation of the earlier documents cannot

be accepted, since the earlier documents were all acted upon. After

the transfer takes place and possession is delivered, the transferee

lost all interest in the property. Any subsequent deed would have no

effect once the transfer is legally effected.

In view of the clear findings of fact that the parties

were initially exchanged the properties amongst themselves and the

properties were settled in favour of the plaintiffs in Title Suit No. 27

of 1997 and on meticulous analysis of the evidence on record, it

cannot be said that the decree passed by the first appellate court

affirming the decree of the trial court suffers from any perversity

Moreover, we find no substantial question of law involved in this

appeal for which the same is required to be admitted.

The second appeal is, therefore, summarily dismissed

under Order XLI Rule 11 of the Code of Civil Procedure.

There will be no order as to costs.

                                                      ( Soumen Sen, J. )



dns                                                   ( Uday Kumar, J. )