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2012 Supreme(Cal) 320
IN THE HIGH COURT OF CALCUTTA
TARUN KUMAR GUPTA, J.
Kartick Chandra Mondal – Appellant
Vs.
Sunil Kumar Purkait – Respondent
S.A. No. 268 of 2004
Decided On: 18.04.2012
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Buddhadeb Ghoshal and G.C. Chakraborty
For Respondents/Defendant: Dilip Kumar Mondal
A subsequent conveyance of property, even if executed by a person who did not have title to the property at the time of the execution of the prior conveyance, may be effective to transfer title if the subsequent conveyance is executed by a person who has acquired title to the property in the meantime.
Headnote:
REAL PROPERTY - TITLE DISPUTE - ADMISSIBILITY OF EVIDENCE - EFFECT OF DOCUMENTS - INTERPRETATION OF DEEDS - SUBSEQUENT CONVEYANCES - ESTOPPEL - ADVERSE POSSESSION - LIMITATION - INJUNCTION - TRESPASS.
Fact of the Case:
Plaintiffs filed a suit for declaration of title, permanent injunction, and mandatory injunction against the defendant, alleging that the defendant had illegally constructed a room on a portion of their suit property. The defendant claimed title to the disputed land through his vendor, who had purchased it from Bijoy Mondal. The plaintiffs contended that Bijoy Mondal had no title to the disputed land and that the defendant's construction was illegal.
Finding of the Court:
The court found that Bijoy Mondal had no title to the disputed land at the time he executed the sale deed in favor of the defendant's vendor. However, the court also found that Deben Mondal, the plaintiffs' predecessor-in-interest, had title to the disputed land and that he had transferred it to Bijoy Mondal through a subsequent sale deed. The court further found that the defendant's vendor had been in possession of the disputed land with a structure thereon since at least 1974, and that the plaintiffs had not taken any legal action to prevent the construction.
Issues: 1. Whether Bijoy Mondal had title to the disputed land at the time he executed the sale deed in favor of the defendant's vendor. 2. Whether Deben Mondal had title to the disputed land and whether he transferred it to Bijoy Mondal through a subsequent sale deed. 3. Whether the defendant's vendor had been in possession of the disputed land with a structure thereon since at least 1974. 4. Whether the plaintiffs had taken any legal action to prevent the construction.
Ratio Decidendi: 1. The court held that Bijoy Mondal had no title to the disputed land at the time he executed the sale deed in favor of the defendant's vendor, as he had not acquired any title to the land through the sale deed executed in his favor by Deben Mondal in 1951, which was an ostensible sale deed by way of mortgage. 2. The court held that Deben Mondal had title to the disputed land and that he had transferred it to Bijoy Mondal through a subsequent sale deed executed in 1960, which was not an ostensible sale deed but a genuine transfer of title. 3. The court held that the defendant's vendor had been in possession of the disputed land with a structure thereon since at least 1974, as evidenced by the sale deeds executed by Bijoy Mondal in 1974 and 1975, and by the report of the local Investigation Commissioner. 4. The court held that the plaintiffs had not taken any legal action to prevent the construction, as there was no evidence to show that they had filed any objection against the report of the learned Investigation Commissioner, which was marked as an exhibit by the learned Trial Court in the presence of the learned counsels of both sides during the arguments.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the learned Lower Appellate Court, and restored the judgment and decree of the learned Trial Court. The court held that the plaintiffs were entitled to a declaration of title to the disputed land, but that the defendant was entitled to retain possession of the two decimals of land in suit plot No. 1503, as he had been in possession of the same with a structure thereon since at least 1974.
Tarun Kumar Gupta, J.
1. This appeal is directed against the judgment and decree dated 30th July, 2002, passed by learned Civil Judge, (Senior Division), Baruipur, South 24 Parganas in Title Appeal No. 133 of 1997, reversing the judgment and decree dated 20th September, 1997 passed by learned Civil Judge (Junior Division), 2nd Court at Baruipur in Title Suit No. 227 of 1982. The plaintiffs filed a suit alleging that one Rajkumar Mondal and Nirab Mondal were in possession of the suit property, each, having eight anas share therein. It is further case that Nirab Mondal sold out his eight anas share in the suit property together with other properties to Debendra Nath Mondal under registered kobala dated 12th May, 1952. Rajkumar Mondal's widow wife Kusum Kumari Dasi also sold away her share in the suit property together with some other lands to Nagendra Nath Mondal, Debendra Nath Mondal and Basanta Kumar Mondal under registered kobala dated 10th July, 1939. On account of said purchase, Debendra Nath Mondal had 4/6th share and Nagendra Nath Mondal and Basanta Kumar Mondal each had 1/6th share in the suit land. Plaintiffs are heirs of Debendra Nath Mondal since deceased Proforma defendants are heirs of Nagendra Nath Mondal and Basanta Kumar Mondal. In view of amicable partition of the properties between the cosharer, plaintiffs got 14 2/3 decimals of land in the western portion of the suit plot No. 1503, plaintiffs were in possession of said earmarked portion of the suit plot No. 1503 by constructing two rooms thereupon. On 27th June, 1976, defendant No. 1 Sunil Kumar Purkait started to construct illegally one room on a portion of suit plot No. 1503, having no title thereupon. It is further case of the plaintiffs that one Bijoy Kumar Mondal being in need of money mortgaged some of his lands to Debendra Nath Mondal through an ostensible sale deed dated 12th June, 1951. Debendra Nath Mondal also reconveyed said mortgage property to Bijoy Kumar Mondal through a sale deed dated 9th December, 1960. It is further case that though Bijoy Kumar Mondal had no title in any portion of suit plot No. 1503 but due to mistake 2 decimals of land of suit plot No. 1503 was incorporated in his mortgage deed through an ostensible sale deed of 1951 and that said mistake crept in the reconveyance deed executed by Debendra Nath Mondal in favour of Bijoy Kumar Mondal. In terms of said Kobala of 1960, Bijoy Kumar Mondal did not get any title whatsoever relating to 2 decimals of land in suit plot No. 1503. Accordingly, the plaintiffs have prayed for a declaration of their title in the suit property and a permanent injunction against the defendant No. 1 as well as a mandatory injunction against the defendant No. 1 by way of removing of his construction standing on 2 decimals of land in suit plot No. 1503.
2. The defendant No. 1 contested the said suit by filing a written statement denying material allegations of the plaint and contending, inter alia, that his vendor Bijoy Kumar Mondal purchased 2 decimals of land in plot No. 1503 and started to use the same by constructing a house thereupon. It is further case that on 20th August, 1974, Bijoy Kumar Mondal sold said 2 decimals of land together with structure thereupon to one Jiban Krishna Chakraborty under an agreement of reconveyance and later on Jiban Krishna Chakraborty reconveyed said property to Bijoy Kumar Mondal through a kobala dated 23rd September, 1975. While Bijoy Kumar Mondal was in possession of said property, he sold away the same to the defendant No. 1 through a kobala dated 26th May, 1976 and that since said purchased the defendant was residing therein and that he did not make any new construction thereupon. Accordingly, he has prayed for dismissal of plaintiffs' suit so far as it related to his purchased property namely 2 decimals of land in suit plot No. 1503.
3. Both sides adduced oral as well as documentary evidence in support of their respective cases. After contested hearing learned T
