Abdus Samad Khan V. Wazed Fakir 44 DLR HCD 495

Facts in Brief:

Defendant no:1 and 2 are prior to the kabalas of the plaintiff .Defendant no.8 was owner of 6 decimals of land out of which 1 decimal was transferred the defendant no.2 on the basis of the sale deed dated 15-12-76 .and she was left with 5 decimals of land of plot 636. Therefore the sale deed dated 25-4-78 the plaintiffs acquired title only in 5 decimals of land of the suit plot. The Plaintiff could not acquire title in the remaining suit lands on the basis of their subsequent kabalas dated 25-4-78 as the defendant no.7 and 8 had already transferred their righ ,title, and interest therein defendant no 1 and 2.

Issue:

Whether the defendants have acquired any right, title and interest upon the suit land on the  basis of their Alleged deeds. 

 Whether the plaintiffs  are entitled to get decree for declaration as prayed for.

Rule of Law:  

Section 48 0f Transfer of Property Act 1882

Section 65 of Evidence Act,1872.

Application to the fact

In the light of section 48 of Transfer of Property Act, 1882 it is clear that the earlier kabala will take procedure over the subsequent Kabala. Therefore the Plaintiffs have not acquired any right, title and interest in the suit land and on the basis of their subsequent sale deeds in respect of properties already sold to defendant no,1 and 2 by the same vendors. It has already noticed that sale deed dated 27-1-78 was executed and registered by defendant no.7 alone in favor of defendant no.1 and 2 and by that deed title of defendant no.8 in 5 decimals of land in suit plot was not transferred to the defendant no.1 and 2.

Decision

It was held that defendant no. 1 and 2 are in possession of the entire suit land except an area 7 and 8 decimals in the homestead partition of the suit plot and the plaintiff has or had no possession of the remaining portion of the suit land

Conclusion:

 Plaintiff suit for declaration of title only in the present form is not maintainable and barred under section 42 of the Specific Relief Act in respect of remaining land in which they have no possession.