Tanu Ram Bora vs Promod Ch Das (Dead) Thr. Lrs.

2. Feeling aggrieved and dissatisfied by the impugned

judgment and order dated 17.07.2015 passed by the High Court

at Guwahati in R.S.A. No. 173/2003, by which the High Court

has dismissed the said appeal preferred by the appellant

herein/plaintiff and has confirmed the judgment and decree

passed by the learned trial Court dismissing the suit, confirmed 2

by the first appellate Court, the original plaintiff has preferred the

present appeal.

3. The facts leading to the present appeal in nut and shell are

as under:

3.1 That the appellant herein/original plaintiff (hereinafter

referred to as the ‘original plaintiff’) purchased the suit land by a

registered sale deed dated 06.01.1990 from Late Pranab Kumar

Bora, husband of original defendant no.2 and father of original

defendant nos. 3 to 8. It appears that the suit land was declared

as ceiling surplus land in the year 1988 and consequently the

same was acquired by the Government. However, subsequently

on 14.09.1990, the suit land was again declared ceiling free land.

That thereafter, the original plaintiff mutated the land in his

name vide order dated 18.12.1991 in Mutation Case No.94/91­

92, and accordingly the name of the original plaintiff was

recorded in the Sadar Jamabandi. It appears that the original

defendant no.1, an Ex­Police Officer. illegally entered into the suit

land on 09.04.1995. Therefore, the original plaintiff immediately

filed a suit in the Court of learned Civil Judge, Junior division,

which was numbered as Title Suit No. 230/1995, praying for

giving possession of the suit land by evicting defendant no.1. The 3

original plaintiff also prayed for a decree of declaration, declaring

that he has a right, title and interest over the suit land. The

original plaintiff also prayed for permanent injunction. That the

said suit was filed in the month of July, 1995.

3.2 That the learned trial Court decreed the suit by its judgment

and decree dated 28.08.1998 specifically holding that the original

plaintiff purchased the suit land by valid document and has got

right, title and interest over the suit land.

4. Feeling aggrieved and dissatisfied with the judgment and

decree passed by the learned trial Court, the original defendant

no.1 filed Title Appeal No. 36/1998 before the first appellate

Court. At this stage, it is required to be noted that so far as

original defendant nos. 2 to 4 are concerned, as such, they did

not challenge the judgment and decree passed by the learned

trial Court holding that the original plaintiff purchased the suit

land by valid document. That the first appellate Court, by its

judgment and order dated 15.09.1999, allowed the said appeal

preferred by original defendant no.1 and remanded back the

matter to the learned trial Court, framing an additional issue to

the effect that “Whether the suit land was declared ceiling

surplus land and as such it was acquired by the Government in 4

the year 1988 and as such whether the vendor had any saleable

right to sell the suit land to the plaintiff on 6.1.1990”.

4.1 That thereafter on remand, the learned trial Court

considering the additional issue dismissed the suit by holding

that disputed land was declared as ceiling surplus land by the

Government and therefore as such the vendor had no right to sell

the suit land by sale deed dated 06.01.1990, and there being so,

the original plaintiff has no right, title and interest over the suit

land.

4.2 The judgment and decree passed by the learned trial Court

came to be confirmed by the first appellate Court, by judgment

and order dated 04.06.2003. At this stage, it is required to be

noted that while dismissing the appeal and concurring with the

finding recorded by the learned trial Court that the vendor of the

original plaintiff had no right to sell the suit land after the suit

land was declared as ceiling surplus land, the first appellate

Court also came to the conclusion that the defendants’ rights

over the suit land also could not be established under Section

53A of the Transfer of Property Act (hereinafter referred to as the ‘

T.P.Act’). At this stage, again it is required to be noted that

original defendant no.1 did not file any appeal against the said 5

observation, and as such, the same has attained finality, which

means original defendant no.1’s right over the suit land was also

declined. The judgment and order passed by the first appellate

Court, confirming the judgment and decree passed by the learned

trial Court dismissing the suit, has been further confirmed by the

High Court, by the impugned judgment and order. Hence, the

original plaintiff has preferred the present appeal.

5. Ms. V. Mohana, learned senior advocate, appearing on

behalf of the appellant/original plaintiff, has vehemently

submitted that all the Courts below have not at all considered

Section 43 of the Transfer of Property Act. It is vehemently

submitted by Ms. Mohana, learned senior counsel appearing on

behalf of the original plaintiff that it is an admitted position that

after the execution of the sale deed dated 06.01.1990,

subsequently the suit land was made ceiling free on 14.09.1990,

and therefore the sale deed became a valid sale deed. It is

submitted, that in view of Section 43 of the T.P. Act, the rights of

the original plaintiff in the suit land, pursuant to sale deed dated

16.01.1990 are protected. In support of her above submission,

Ms. Mohana, learned counsel appearing on behalf of the original

plaintiff has heavily relied upon the decision of this Court in the 6

case of Ram Pyare vs. Ram Narain and others, (1985) 2 SCC 162.

She has also relied upon another decision of this Court in the

case of Jumma Masjid vs. Kodimaniandra Deviah, AIR 1962 SC

847.

5.1 Ms. Mohana, learned senior counsel appearing on behalf of

the original plaintiff has further submitted that all the Courts

below have materially erred in not appreciating the fact that as

such it was the original plaintiff who approached the Court for

declaration and permanent injunction, claiming rights on the

basis of a registered sale deed dated 06.01.1990, and the cause

of action arose when original defendant no.1 illegally entered into

the suit land. It is submitted that as such the first appellate

Court has specifically held against original defendant no.1 that

the original defendant no.1 also has no right, title and interest on

the suit land on the basis of the agreement to sell as none of the

ingredients of Section 53A of the Act are satisfied. It is submitted

that as such the aforesaid finding recorded by the first appellate

Court had attained finality, and therefore it is concluded that

original defendant no.1 had no right, title and interest in the land

in question. It is further submitted by Ms. Mohana, learned

senior counsel appearing on behalf of the original plaintiff that so 7

far as original defendant nos. 2 to 8 – legal heirs of the original

vendor are concerned, they never challenged the registered sale

deed dated 06.01.1990, and they also never claimed any right,

title or interest in the suit land.

5.2 Making the above submissions, and relying upon the above

decisions, it is prayed to allow the present appeal, set aside the

judgment and decree passed by the learned trial Court,

confirmed by the first appellate Court and the High Court, and

consequently to decree the suit filed by the original plaintiff.

6. The present appeal is opposed by Shri Hariharan, learned

advocate appearing on behalf of legal heirs nos. 1/1 and 1/6 of

the deceased original defendant no.1. Office report dated

22.12.2018 indicates that service on legal heirs nos. 1/2,1/4 and

1/5 is complete but no one has entered appearance on their

behalf. The said office report also indicates that notice sent to

legal heir no. 1/3 has been received back with postal remarks

“refused” and as such service is deemed to be complete upon her.

The said office report further indicates that service is also

complete on respondent nos. 2 to 8 but no one has entered

appearance on their behalf.

8

6.1 Shri Hariharan, learned advocate appearing on behalf of

original defendant no.1 (now on behalf of legal heirs nos. 1/1 and

1/6) has vehemently submitted that there are concurrent

findings of facts by all the Courts below that at the time when the

sale deed was executed in favour of the original plaintiff, i.e., on

06.01.1990, the land in question was ceiling surplus land, and

therefore was a government land, and therefore the original

vendor was not the owner of the suit land, and therefore had no

right, title or interest in the suit land, and therefore the plaintiff

had no right, title or interest in the suit land on the basis of the

registered sale deed dated 06.01.1990. It is submitted therefore

all the Courts below have rightly dismissed the suit.

6.2 So far as the reliance placed by the learned senior counsel

appearing on behalf of the plaintiff on Section 43 of the T.P. Act

is concerned, it is vehemently submitted by Shri Hariharan that

by getting the protection under Section 43 of the T.P. Act, the

vendee has to prove that the transferor acted fraudulently or

erroneously represented. It is submitted by Shri Hariharan,

learned counsel appearing on behalf of the legal heirs of original

defendant no.1 that in the present case the ingredients of Section 9 43 of the T.P. Act are not satisfied, and therefore the rights of the

original plaintiff are not protected under Section 43 of the Act.

6.3 Making the above submissions, it is prayed to dismiss the

appeal.

7. Heard learned counsel on behalf of the respective parties at

length.

7.1 At the outset, it is required to be noted that the following

facts are not in dispute:

i) that the original plaintiff purchased the suit land by a

registered sale deed dated 06.01.1990, executed by late Pranab

Kumar Bora on payment of full sale consideration;

ii) that as on 06.01.1990, the suit land was ceiling surplus

land and the government was the owner;

iii) that the land in question became ceiling free land on

14.09.1990;

iv) that the name of the original plaintiff was mutated in the

revenue record – Sadar Jamabandi vide order dated 18.12.1991

in Mutation Case No. 94/91­92;

v) that neither the vendor nor the heirs of the vendor

challenged order dated 18.12.1991 by which the name of the

plaintiff was mutated in the revenue record;

10

vi) that when the earlier suit was decreed by the learned trial

Court, it was only the original defendant no.1 who challenged the

judgment and decree passed by the learned trial Court and no

appeal was preferred by original defendant nos. 2 to 7, heirs of

the original vendor; and

vii) that in the second round of litigation, the first appellate

Court specifically observed against original defendant no.1 that

he has also no right, title or interest in the suit land on the basis

of prior agreement to sell and the said finding had attained

finality.

7.2 It is required to be noted that as such the heirs of the

original vendor are not contesting the proceedings and it is only

original defendant no.1 (now the legal heirs of original defendant

no.1) are contesting the proceedings. Thus, it appears and/or

nothing is on record to show that it was the case on behalf of the

original defendants, more particularly on behalf of the vendor

that the original plaintiff was informed specifically at the time of

execution of the sale deed dated 06.01.1990 that the land in

question is ceiling surplus land. In the light of the aforesaid

facts, Section 43 of the T.P. Act, which is heavily relied upon on

behalf of the original plaintiff is required to be considered. 11

7.3 Section 43 of the Act reads as under:

“43. Transfer by unauthorised person who subsequently acquires interest in property transferred – where a person [fraudulently or] erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operates on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this Section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option”.

7.4 Section 43 of the T.P. Act provides that where a person

fraudulently or erroneously represents that he is authorised to

transfer certain immovable property and professes to transfer

such property for consideration, such transfer shall, at the option

of the transferee, operates on any interest which the transferor

may acquire in such property at any time during which the

contract of transfer subsists. Thus, if at the time of transfer, the

vendor/transferor might have a defective title or have no title

and/or no right or interest, however subsequently the transferor

acquires the right, title or interest and the contract of transfer

subsists, in that case at the option of the transferee, such a

transfer is valid. In such a situation, the transferor cannot be 12

permitted to challenge the transfer and/or the transferor has no

option to raise the dispute in making the transfer.

7.5 The intention and objects behind Section 43 of the T.P. Act

seems to be based on the principle of estoppel as well as the

equity. The intention and objects seems to be that after

procuring the money (sale consideration) and transferring the

land, thereafter the transferor is estopped from saying that

though he has sold/transferred the property/land on payment of

sale consideration, still the transfer is not binding to him. That is

why Section 43 of the T.P. Act gives an option to the transferee

and not the transferor. The intention of Section 43 of the Act

seems to be that no body can be permitted to take the benefits of

his own wrong. In the facts and circumstances of the case,

Section 43 of the Act would come into play and protect the rights

of the original plaintiff.

8. An identical question came to be considered by this Court in

the case of Ram Pyare (supra). In the aforesaid decision, on

considering Section 43 of the Act, it is observed and held by this

Court that as the sale deed in favour of the vendee was result of

an erroneous representation of the vendor, thereafter the sons of

the vendor, cannot claim to be transferees in good faith and 13

therefore their suit for cancellation of the sale deed would not be

maintainable. In the aforesaid decision, this Court considered

the following observations of this Court in another decision in the

case of Jumma Masjid (supra):

“This reasoning is open to the criticism that it ignores the principle underlying Section 43. That section embodies, as already stated, a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevant word of Section 43 were, "where a person erroneously represents", and now, as amended by Act 20 of 1929, they are "where a person fraudulently or erroneously represents", and that emphasises that for the purpose of the section it matters not whether the transferor act fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application, and the transfer will fail under Section 6(a). But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in Section 43, however fraudulent the act of the transferor might have been.” 14

9. At this stage, it is required to be noted that as observed

hereinabove in the present case as such the heirs of the original

vendor are not contesting the proceedings and they have never

disputed the right, title or interest of the original plaintiff, and it

is the original defendant no.1 and now his heirs who are

contesting the proceedings. Heirs of the original vendor have

never initiated any proceedings for cancellation of the registered

sale deed dated 06.01.1990, and/or they have never claimed any

right, title or interest in the suit land after the registered sale

deed dated 06.01.1990. As such, in the case of Ram Pyare

(supra), applying Section 43 of the Act, this Court has specifically

observed and held that once there was an erroneous

representation by the vendor, thereafter the suit by the heirs of

the vendor for cancellation of the sale deed would not be

maintainable. Under the circumstances and in the facts and

circumstances of the case, the rights of the original plaintiff in the

suit land by a sale deed dated 06.01.1990 would be protected by

operation of Section 43 of the Act. Therefore, the finding recorded

by all the Courts below that the original plaintiff has no right, title

or interest in the suit land on the basis of a registered sale deed 15

dated 06.01.1990 cannot be sustained and the same deserves to

be quashed and set aside.

10. Now so far as the other reliefs prayed in the suit, namely, (i)

to get back a decree for return of possession from original

defendant no.1; and (ii) that a decree for permanent injunction

are concerned, deserve to be granted, as the first appellate Court

has specifically observed and held against original defendant no.1

that he has no right, title or interest in the suit land and the said

finding has attained finality. Once, it is held that he has no right,

title or interest in the suit land, and that the plaintiff has a right,

title or interest on the basis of a registered sale deed dated

06.01.1990, and he claimed to be in possession on the basis of a

registered sale deed dated 06.01.1990, which came to be disputed

by original defendant no.1 subsequently, the defendant no.1

cannot be permitted to be continue in possession, and therefore

the original plaintiff is entitled to other reliefs also.

11. For the reasons stated above, the present appeal succeeds

and is allowed. The impugned judgment and order passed by the

High Court, as also, the judgment and decree passed by the

learned trial Court, confirmed by the first appellate Court, are

hereby quashed and set aside. Consequently, Title Suit No. 16

230/1995 preferred by the original plaintiff is hereby decreed in

toto. However, in the facts and circumstances of the case, there

shall be no order as to costs.

………………………………………J. [L. NAGESWARA RAO]

NEW DELHI; ……………………………………….J. FEBRUARY 08, 2019. [M.R. SHAH]