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2024 Supreme(Gau) 682
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
DEVASHIS BARUAH, J.
Md Sabed Ali S/o Late Kasem Ali - Appellant
Versus
Aswini Kumar Nath S/o Late Chotiram Nath And Ors – Respondents
RSA 5 of 2002
Decided on : 30-05-2024
Advocate Appeared:
For the Appellant :Mr. F. U. Barbhuiya, Advocate
IMPORTANT POINT
The central legal point established in the judgment is the interpretation and application of Section 44 of the Transfer of Property Act, 1882, which allows a co-owner to transfer his share of the property to another co-owner.
Headnote:
Transfer of Property Act - Property Dispute - Section 44 of Transfer of Property Act, 1882 - Summary: The court discussed the provisions of Section 44 of the Transfer of Property Act, 1882, which allows a co-owner to transfer his share of the property to another co-owner. The court found that the defendant was within his rights to transfer his share of the property to the appellant, and the first appellate court's failure to consider this provision rendered its judgment and decree bad in law.
Fact of the Case:
The case involved a property dispute over a plot of land. The plaintiff sought a declaration that a sale deed was void and illegal, claiming right, title, and interest over the land.
Finding of the Court:
The trial court dismissed the suit, finding that the defendant had the right to transfer his share of the property to the appellant. The first appellate court, however, reversed the judgment, stating that the transfer could not have been made without the consent of the remaining pattadars.
Issues: The main issues revolved around the validity of the sale deed and the right, title, and interest over the land.
Ratio Decidendi: The court's decision was based on the interpretation of Section 44 of the Transfer of Property Act, 1882, which allowed the defendant to transfer his share of the property to the appellant.
Final Decision: The court set aside the first appellate court's judgment and decree, and restored the judgment and decree of the trial court in favor of the appellant.
JUDGMENT :
Heard Mr. F.U. Barbhuiya, the learned counsel appearing on behalf of the Appellant. None appears for the Respondents.
2. This is an appeal under Section 100 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 18.07.2001 passed by the Court of the learned Civil Judge (Senior Division) Morigaon in Title Appeal No.14/2000 whereby the judgment and decree passed by the learned Trial Court i.e. the Court of the learned Civil Judge (Junior Division) No.1, Morigaon dated 14.11.2000 in Title Suit No.29/96 was reversed.
3. This Court vide an order dated 29.01.2007 admitted the instant appeal by formulating the following substantial question law:
“Whether the learned first appellate court erred in law in reversing the judgment of the learned trial court holding Exb – 4, i.e. Sale Deed No.2932 dated 04.04.1985 as an illegal document as it was sold by one of the co-sharers only?”
4. The question arises in the instant appeal as to whether the said substantial question of law which has been formulated is involved in the instant appeal. For the purpose of deciding the same, this Court finds it relevant to take note of the brief facts leading to the filing of the instant appeal.
5. A plot of land measuring 12 Bighas 4 Kathas 9 Lechas covered by Dag No.54 of Periodic Patta No.53 of village Hatibat Simaluguri Kissam under Mouza Mikirbheta, Morigaon originally belonged to one Puturam Nath (since deceased) and Chotiram Nath (since deceased). It is an admitted fact that the Plaintiff, the Principal Defendant No.2 as well as the proforma Defendant Nos. 4 to 7 were the legal heirs of Chotiram Nath (since deceased). It is an admitted case of both the parties that Late Puturam Nath transferred his share in favour of Late Chotiram Nath and therefore, during the lifetime of Late Chotiram Nath, he became the owner of 12 Bighas 4 Kathas 9 lechas of land which have been specifically described in Schedule-A to the plaint.
6. Pursuant to the death of Late Chotiram Nath, the names of the Plaintiff, the Principal Defendant No.2 as well as the Proforma Defendant Nos. 4 to 7 were duly mutated. Out of the Schedule-A land, the Defendant No.2 transferred 2 Bighas of land vide a registered Deed of Sale bearing Deed No.2932 dated 04.04.1985 which have been specifically described in Schedule-C to the plaint in favour of the Defendant No.1 who is the appellant in the instant proceedings. In pursuance to the said Deed of Sale, the Defendant No.1 have been alleged to have forcefully taken over the possession of the Schedule-C land and under such circumstances, the suit was filed seeking a declaration that the Sale Deed No.2932 dated 04.04.1985 described in Schedule-D is void, illegal and has no force in the eyes of law; plaintiff had right, title and interest over the suit land described in Schedule-C land and those over Schedule A and B; the khas possession of Schedule-C land and costs etc.
7. Both the Defendant Nos. 1 and 2 filed their written statement stating inter alia that the Defendant No.1 duly had the right to transfer his share of the Schedule-A land to the Defendant No.2 and as such the said transfer made in favour of the Defendant No.2 vide the Deed of Sale bearing Deed No.2932 dated 04.04.1985 of the Schedule-C land was in accordance with law.
8. On the basis of the said pleadings, as many as 9 (nine) issues were framed of which Issue No.6 was as to whether the Defendant No.2 had right to sale the Schedule-C land to the Defendant No.1 and whether the Sale Deed No.2932 dated 04.04.1985 is liable to be declared void and illegal. The Issue No.8 was as to whether the plaintiff had right title and interest over the suit land. Both sides adduced evidence.
9. The learned Trial Court on the basis of the pleadings as well as the evidence decided that there was no materials on record to show that the Defendant No.2 was disentitled by his father Late Chotiram Nath to inherit the properties. The learned Trial Court also came to a categorical f
