Gautam Kumar Choudhary, J
1. This is plaintiffs’ second appeal against the judgment of affirmance by which the plaintiff’s suit has been dismissed.
2. Plaintiff filed the suit for declaration of title over Schedule-A property and for recovery of possession of the suit premises described in Schedule B
by evicting the defendants and for declaring plaintiff’s title over the suit property.
3. The plaintiff claims the suit property on the basis of gift deed executed on 01.09.1990 by owner of the property with respect to Schedule A property
which is Khapparposh building comprising of five rooms over 2 ½ Katha in the District East Singhbhum detailed in the plaint. Out of the five rooms,
plaintiff on the basis of registered deed of gift is in occupation of three rooms whereas the defendants are in possession of two rooms of the said
building for which the suit has been brought.
4. Plaintiff thus claims title on the basis of the gift deed whereas the defendants claim title on the basis of the inheritance as they happen to be the
heirs of the donor-Shamsher Ali. Defendant nos. 2 and 4 have contested the suit whereas the suit was proceeded ex-parte against defendant no.1.
5. Case of the contesting defendants is that plea of plaintiff being adopted son of Shamsher Ali was not acceptable as there was no provision of
adoption under Mohammedan Law. The said gift deed was never executed by Shamsher Ali, as at the said time, he was not in a proper state of mind
to have executed his gift. Furthermore, he could have gifted the property by way of gift only of his 1/3rd share and not the entire property.
6. Plaintiff was residing in the part of the Schedule-A property as licencee and after the death of Shamsher Ali, he became licencee of Jarina Begum
(daughter of Shamsher Ali).
7. The defendants had earlier filed Title Suit No.108 of 1997 for eviction of the plaintiff which was dismissed for default.
8. On the basis of the pleadings of the parties, following main issues were framed:-
Issue No.3 Â Â Â Â Â Whether the suit is bad for non-joinder and misjoinder of the necessary parties?
Issue No.4 Â Â Â Â Â Whether the plaintiff has got the title over the suit property and defendant are in occupation of Schedule B
property as a licencee?
9. The learned trial court dismissed the suit by recording the finding in favour of the defendants.
10. The learned appellate court has concurred with the findings of the trial court.
11. The suit is admitted to be heard on the following substantial question of law:-
I. Whether the judgment of the appellate court stands vitiated in the eye of law in view of the law laid down by the Apex Court, reported in 2004(1) SCC Page 581
[Balakrishnan Vs. K. Kamlam & Others]?
II. Whether Shamsher Ali had title in the property to transfer it by gift to the plaintiff Rizvi Khan?
12. It is argued by learned counsel for the appellant in answer to the substantial question of law No. 2 that under Section 142 of the Mulla
Mohammadan Law, the father has right to dispose of the entire property without reserving any part of it for his heirs and descendants during his
lifetime. The admitted position is that Shamsher Ali has purchased the suit property from Sarju Dhobi as admitted in para 7 of the written statement in
the year 1984 and, therefore, there was no impediment in transferring the land by way of gift.
It is further argued that learned Trial Court completely misdirected itself to hold the suit to be non-joinder of necessary parties as TISCO and State
have not been impleaded in the suit. In a suit for eviction, the State or TISCO were not made the necessary party. Further, in the pleading of the
defendant although it has been stated that the suit was bad for non-joinder of necessary parties but it has not been stated who was the necessary party
that has not been impleaded.
13. With regard to finding of the Appellate Court that donee was a minor, reliance is placed on (2004) 1 SCC 581 which has been referred in the first
question of law.
14. It is further argued that no cross-objection has been filed against the finding of learned First Appellate Court
15. It is argued by learned counsel for the respondents that the gift deed (Ext.2) dated 01.09.1990 by which the plaintiff claimed title is under cloud as
it was preceded by the power of attorney dated 30.08.1990 purported to be executed by Shamsher Ali in favour of Moinuddin who executed the deed
of gift on 01.09.1990 and after that Shamsher Ali died on 03.09.1990 as deposed to by DW1 in para 3. It was for this reason that the Trial Court held
that the plaintiff had not acquired any title over Schedule-A property on the basis of the power of attorney (Ext.1) and the gift deed (Ext.2). Learned
Appellate Court has concurred with the finding.
16. It is also argued that the relief was not decreed for eviction to extend declaration of title since the land was lease hold property of TISCO and
therefore, lessor State of Bihar and TISCO were necessary party. Reliance is placed on Agnigundala Venkata Ranga Rao Vs. Indukuru
Ramachandra Reddy (Dead) by L.Rs. & Ors. (Civil Appeal No. 5817 of 2012).
FINDING
17. Shamsher Ali was in possession of the suit property and he died leaving behind his daughter Jarina Begam on 03.09.1990. Plaintiff’s claims the
property on the basis of a gift deed executed by the power of attorney holder on 01.09.1990, whereas the defendants are heirs and descendants of
Zarina Begam and claim the property by inheritance.
18. The suit is filed for recovery of possession and declaration of title of the suit premises detailed in Schedule B which comprises of two pucca room,
out of five rooms of Schedule A premises.
19. Both the learned courts below have disbelieved the deed of gift as the donor Shamsher Ali had no title to execute the sale deed as the nature of
land was Anabad Bihar Sarkar of which TISCO was the lessee and as per Exhibit 5, which was the certified copy of Khatiyan of 1992 survey
Shamsher Ali was in illegal possession of the land. In this view of matter, the donor could not have transferred title in favour of donee by the said gift.
In the suit, neither State of Bihar nor TISCO has been impleaded as party.
20. The manner in which the deed of gift has been executed also casts doubt on its due execution which will be evident from the following list of
dates:
30.08.1990 â€" Power attorney executed by Shamsher Ali in favour Moinuddin (Exhibit 1) at Jamshedpur.
01.09.1990 â€" Deed of gift executed by Moinuddin at Calcutta in favour of Rizwi Khan.
03.09.1990 â€" Death of Shamsher Ali.
18.07.2002 â€" Eviction suit filed.
21. This is a suit inter alia for relief for declaration of title which cannot be allowed for the reason that the nature of land was gairabad Bihar
Sarkar, as the State of Bihar and its lessee TISCO had not been impleaded as party. Principle ofN emo dat quod non habet will also apply since the
donor had no title, therefore, he cannot transfer a valid title in favor of the donee. Second substantial question of law, is accordingly, answered in view
of the fact that Shamsher Ali had no title, the first substantial question of law loses significance as to whether title could have been passed to a minor
by gift or not.
The second appeal, accordingly, stands dismissed.
Pending I.A., if any, stands disposed of.
