Point of Law: Civil Procedure Code provides for passing of a common judgment and decree in two or more suit tried together as analogously. But a reading of Section 96 and Order XLI Rule 1 of the CPC, an appeal lies against every decree passed by a court exercising jurisdiction.

JUDGMENT :

Heard Mr. G.N. Sahewalla, learned senior counsel appearing on behalf of the Appellants and Mr. A.R. Sikdar, learned counsel appearing on behalf of the respondents.

2. This appeal under Section 100 Of the Code of Civil Procedure, 1908 was admitted on 31/05/2013 on the following substantial questions of law:-

“(1) Whether the Courts below committed error by dismissing the plaintiff’s suit holding that the vendors of the plaintiffs, who were co-sharers of the suit land, had no title and right to transfer their shares in the suit land by executing register sale deed, as co-sharers ?

(2) Whether the said vendors of plaintiffs, in view of the provision of Sections 44 & 48 are permitted to take the plea that they had no title over the suit land at the time of execution of the sale deed, in favour of the plaintiffs ?

(3) Any other question of law that they may be raised at the time of hearing.”

3. At the outset, it is stated that the question No. 3 being not a substantial question of law and no further existence of substantial question of law having urged, the same is deleted. Before deciding the said substantial questions of law as formulated by this Court, it would be relevant to take note of the background of the instant lis. The plaintiffs who are the appellants herein had instituted the suit seeking declaration of their right, title and interest and for confirmation of possession in respect to the Schedule B land; for declaration of the registered sale deed bearing Deed No. 477/2001 dated 01/03/2001 as illegal, invalid and inoperative in law and for issuance of a precept to the Sub-Registrar for cancellation of the said deed of sale and for issuance of a further precept for restoration of a mutation in favour of the plaintiffs; for partition of the Schedule-B land by issuance of separate patta in favour of the plaintiffs and for permanent injunction. The case of the plaintiffs in the said suit was that the plaintiffs have purchased the Schedule B land from the Proforma-Respondent Nos. 6 & 7 vide the registered sale deed bearing No. 1081/1999 dated 04/12/1999. The plaintiffs on 05/03/2001 came to learn that the defendant Nos. 1 to 4 sold the B-Schedule land to the defendant No. 5 vide the registered sale deed bearing No. 477/2001 dated 01/03/2001. Pursuant to the purchase made by the defendant No. 5 vide the said registered Sale Deed dated 01/03/2001, the defendant No. 5 tried to dispossesses the plaintiffs from the suit land on 10/03/2001 for which the said suit was filed by the plaintiffs seeking the above mentioned reliefs.

5. The defendant Nos. 1 to 4 did not contest the suit by filing written statement. However, the defendant No. 5 filed his written statement-cum-counter claim stating inter alia that Lt. Saheb Ali Haji was the sole paddatar of Patta no. 17 of Village Deorikuchi, which had two dags. Dag No. 243 covered an area of 8 bigha 2 kathas 7 lechas and Dag No. 276 covered an area of 8 bighas 2 kathas 16 lechas i.e. in total 17 bighas 0 Katha 3 Lechas. The disputed dag in question was the Dag No. 276. During the life time of Lt. Saheb Ali Haji he sold 6bighas of land from the said Dag No. 276 to one Md. Abdul Hai. At the time of death of Lt. Saheb Haji Ali he left behind eight sons, five daughters and two wives, who inherited the land admeasuring 2bigha 2 kathas 6 lechas of the said disputed dags. The further case of the defendant No. 5 in his written statement was that according to the principles of Mohammadan Law the two wives of Lt. Saheb Haji Ali were jointly entitled to 1/8th share ; each son was entitled to double that of each daughter and consequently the two wives would jointly get 1 katha 10 6/8 lechas. Each son would get 1 katha 10/21 lecha from the said disputed dag and under such circumstances, the Proforma Defendant Nos. 6 & 7, who were the daughters had no saleable right over 2 kathas 12 lechas of land as described in Schedule B of the plaint. It was the specific case of the defendant No. 5 in the said