RSA 68/2001 BEFORE THE HON’BLE MR. JUSTICE A.C. UPADHYAY JUDGMENT & ORDER This second appeal under Section 100 <javascript:fnOpenGlobalPop Up(’/ba/disp.asp’,’20480’,’1’);> of the Code of Civil Procedure is directed agai nst the judgment and decree dated 05.05.2001, passed in Title Appeal No.13/99 by the learned Civil Judge (Sr. Division), Dibrugarh, reversing the judgment and d ecree dated 20.07.99 passed by learned Civil JudgeNo.1 (Junior Division), Dibrug arh in Title Suit No. 64 of 91. 2. I have heard Mr. D. Majumder, learned counsel appearing for the appellant and Mr. C Baruah, learned counsel appearing for the plaintiffs-respond ents. 3. Briefly stated, the facts, leading to the filing of this appeal, are as follows: The plaintiff-respondent No.1, purchased the suit land measuring 1 Bigha 1 Katha 7 Lechas, covered by P.P No.140 Dag No.882 of Barpathar Vil lage Council from one Sri Pratap Singh Rajput by executing a sale deed No.824, dated 19.04.1983. Thereafter, the plaintiff No.1 sold out a part of the land mea suring 1 Katha 1 Lecha to Sri Gunabhi Gogoi, Plaintiff/Respondent No.2 vide regi stered sale deed No.283, dated 03.02.1988. Thus, the total land owned by the pla intiff No.1 after sale is 4 katha 17 lechas, as shown in schedule A and the plai ntiff No.2 owned 1 katha 10 lechas, as described in schedule B to the suit sched ule. 4. The plaintiffs-respondents alleged in the plaint that the defend ant-appellant, without any right, title and interest over the suit land, came in to its possession on 25.09.1991, and erected a bamboo fencing around the land an d also constructed a temporary ’kachha’ house thereon. The plaintiffs/respondent s alleging therein that the defendant appellant may construct a permanent struct ure in the suit land filed a suit against the defendant-appellant and prayed for declaration of right, title and interest and also for his eviction, by removing all illegal constructions put up in the suit land. 5. The defendant-appellant entered appearance and contested the suit by fil ing written statement, stating therein, interalia, that the suit is not maintain able and no cause of action arose for the suit. The defendant-appellant further stated that the suit land originally belonged to Pratap Singh Rajput, who had vast areas of land around Jamirah Mouza of Dibrugarh district. Sometime in 19 77, the excess land belonging to Pratap Singh Rajput including the suit land was formally acquired by the Government, under the provisions of the Fixation of Ce iling of Land Holding Act, 1961, for giving settlement of the excess land to the landless people. The defendant appellant, accordingly, approached the Revenue a uthority for settlement of land in his name. Consequently, the defendant-appella nt occupied the suit land measuring 1 Bigha 1 Katha 7 Lechas covered by Dag No.8 82 of Patta No.140, by making development in the land. Later on the defendant co nstructed his dwelling house on a part thereon and continued to keep exclusive p ossession and enjoyed the land peacefully. 6. The defendant-appellant, thereafter, approached the local Revenu e authority for settlement of the said plot of land by filing a petition before the Deputy Commissioner, who, in turn, called for a report from the Circle Offic er. The Circle Officer of the area by his report, dated 30.09.1991, recommended settlement of the suit land in the name of the defendant-appellant. Accordingly, the defendant-appellant took a stand stating that the plain tiff/respondent No.1 Smt. Chitra Gogoi could not have purchased the said land in question from Pratap Singh Rajput, since at the time of its purchase the origin al owner did not have any saleable right over the plot of land. Thus, the plaint iff respondent No.1 neither could have acquired right, title and interest to bec ome owner of the said land by right of purchase, nor the plaintiff No.2 could ob tain any valid right, title and interest from the plaintiff No.1 by right of pur chase. The defendant appellant prayed for dismissal of the suit. 7. On the basis of the pleadings of both the parties, the learned t rial Court framed the following issues for just decision of the suit. i) Whether the suit is maintainable in law and facts? ii) Whether there is any cause of action for the suit? iii) Whether the suit is bad for non-joinder of necessary parties? iv) Whether the plaintiffs have right, title, interest and possession over the s uit land? v) Whether the plaintiffs are entitled to decree as prayed for? vi) To what relief, if any, the parties are entitled? 8. During the trial, plaintiffs-respondents examined as many as 5(f ive) witnesses and exhibited some documents and defendant also examined 2(two) w itnesses in support of his stand. After hearing both the parties, learned trial Court dismissed the suit of the plaintiffs-respondents. Plaintiffs-respondents c arried the said dismissal decree to the Appellate Court of Civil Judge (Sr. Divi sion), Dibrurgarh. The Appellate Court aforenoted by the impugned judgment and o rder, dated 11.04.2001, in Title Appeal No.13/1999, allowed the appeal by revers ing the dismissal decree passed by the learned trial Court. 9. The defendant-appellant by filing this second appeal against the impugned order, passed by the learned lower Appellate Court, has challenged tha t the plaintiffs-respondents could not acquire right, title over the suit land b y virtue of right acquired from the owner, after the land was formally acquired from the owner by the Government as ceiling surplus land. This Court, admitted t he appeal for hearing on the following substantial question of law: Whether the plaintiffs could acquire right, title over the suit land by virtue of sale deed dated 19.04.1983 (Ext.1) and 3.2.1988 (Ext.2) executed after the su it land was acquired by the Government as ceiling surplus land in the year 1977 under the provisions of Assam Fixation of Ceiling on Land Holdings Act, 1956? 10. Learned counsel for the appellant by drawing the attention of th e Court to the evidence on record submitted that admittedly during the period fr om 29.09.1977 to 24.12.1991, the suit land in question was a Government land. L earned counsel for the appellant further pointed out that the defendant-appellan t having been in possession of the suit land, after it was acquired by the Gover nment, original owner Pratap Singh Rajput had no transferable right over the su it land, therefore, any transfer of such land by him, would not confer any right to the plaintiffs-respondents in the suit land. Therefore, the deed of sale, in respect of suit land, executed by Pratap Singh Rajput, during the period, wh en he had no right, title, interest and possession over it, would not legally tr ansfer any right, title and interest over the suit land to the prospective purch aser, i.e., the plaintiffs-respondents. 11. In order to appreciate the arguments advanced by the learned cou nsel for the appellant as well the plaintiffs-respondents, it would be appropria te to discuss the relevant evidence on record. 12. PW.2, Pratap Singh Rajput, who was the original landowner, admit ted the fact of selling the suit land to the said Smt. Chitra Gogoi, plaintif f respondent No.1 after it was already acquired by the Government as ceiling sur plus land. 13. PW No.2 further admitted that the suit land measuring 1 Bigha, 1 Katha 7 Lechas under Dag No.882, P.P No.140 was acquired by the Government prio r to 1980 and the land in question was, admittedly, in the possession of the def endant-appellant. Admittedly, plaintiff-respondent No.1 purchased 1 Bigha 1 Kath a 7 Lechas land bearing P.P No.140, Dag No.882 in the year 1983 i.e. after the l and was acquired by the Government. The plaintiff-respondent No.2, Sri Gunabhi G ogoi, purchased 1 Katha 10 Lechas of land from the plaintiff-respondent No.1, Sm t. Chitra Gogoi by executing the sale deed in the year 1988. 14. PW.5 Sri Gajen Baruah, the ’lat-mandal , after examining the off icial records has confirmed that 1 Bigha 1 Katha 7 Lechas of land under Dag No.8 82 was acquired by the Government in the year 1977. However, the said acquisitio n was cancelled vide order, dated 29.07.1991 and it was again re-recorded in the name of original pattadar i.e. Sri Pratap Singh Rajput by the Deputy Commission er. It has been also confirmed that the land in question was acquired as ’Ceilin g Surplus Land’ by the State Government. PW.5 further affirmed that on the basis of a petition, filed by the defendant appellant, Sri Kulen Dihingia, a report w as submitted to the Deputy Commissioner in the year 1991 stating therein that th e land could be allotted the defendant-appellant. 15. The defendant-appellant by examining himself as DW.1 categorical ly stated that Sri Pratap Singh Rajput had vast area of cultivable land, which w as acquired by the Government in the year 1976 to 1977 and those lands were dist ributed amongst the landless cultivators. The defendant-appellant also occupied 1 Bigha 1 Katha 7 Lechas of land and constructed a house in the year 1980 and co ntinued to occupy the land without any interruption whatsoever. 16. Possession of the defendant-appellant was confirmed by the indep endent witness. From the evidence of the witnesses, adduced by the plaintiffs-re spondents as well as the defendant-appellant, it appears that the land in questi on measuring 1 Bigha 1 Katha 7 Lechas, under Dag No.882, P.P No.140 was acquired by the Government prior to 1980, by formally issuing public notification. The s uit land in question was purchased by Plaintiff-respondent No.1 from the origina l owner i.e., Sri Pratap Singh Rajput by executing a sale deed at a time when th e land in question was a Government land. Out of which, the plaintiff-respondent No.1 sold a part of the suit land measuring 1 Katha 1 Lechas to Gunabhi Gogoi P laintiff-respondent No.2 by registered sale deed No.283, dated 03.02.1988. Since the land in question was ceiling surplus land having been formally under the po ssession of the Government and in occupation of the defendant-appellant, the tra nsfer of such land either by the defunct owner or by the by the plaintiff-respon dent No.1, by executing the sale deed, as aforesaid cannot be treated to be a le gal transaction in the eye of law. More so, the land in question being in posses sion of the defendant-appellant for several years, the question of taking over p ossession by the plaintiff-respondent did not arise. 17. Apparently, the plaintiffs-respondents cannot acquire any right, title interest and possession of the Government land, i.e., suit land, on the s trength of sale deed, executed in the year 1983-84 by the original owner, during the period in which the land in question was exclusively acquired by the Govern ment and was in possession of the defendant-appellant. In such a situation, the plaintiffs-respondents could not have acquired any transferable right over the p roperty from the so called owner of the land, who did not have any legal right, title and interest over the suit land. 18. Mr. C. Baruah, learned counsel for the plaintiffs-respondents by drawing the attention of the Court to the provisions of Section 43 of the Trans fer of Property Act, 1882, submitted that where a person fraudulently or erroneo usly represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest, which the transferor may acquire in such property, at any time during which the contract of transfer subs ists. 19. Learned counsel for plaintiffs- respondents, in the course of hi s argument, submitted that the learned first appellate Court decided the title i n favour of the Plaintiffs-respondents on the basis of the evidence on record. His further submission is that Section 43 of the T.P. Act protects the rights o f the plaintiffs-respondents for appropriate remedy in respect of the suit land and there is no scope to interfere with the decision of the first appellate Cour t. 20. Per contra, learned counsel for the appellant submitted that l earned first appellate Court diverted the issue in question relating to illegal sale of the Govt. land and took a different route by invoking the provision of S ection 43 of the T.P. Act, which was actually nobody’s case. Learned counsel for the appellant submitted that the plaintiff-respondent having knowledge of the a cquisition of the land by the Govt. entered into an agreement to purchase the la nd from a defunct owner without pleading fraud or erroneous representation, ther efore, the benefit of Section 43 of the T.P. Act is not available. 21. The provision of Section 43 of the Transfer of Property Act (for short ’the TP Act’), reads as under: Section 43: Transfer by unauthorized person who subsequently acquired interest in property transferred: Where a person fraudulently or erroneously represents that he is authorized to t ransfer certain immovable property, and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquired in such property, at any time dur ing 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. 22. The above provisions in section 43 of T.P. Act covers the case w here the vendor of the improvable property, who does not hold proper title, agre es to sell or transfers the property. Section 43 of the TP Act becomes relevan t only after the transfer is given effect. Another point of distinction is that an element of fraud or erroneous representation must be pleaded and proved again st a transferor, under Section 43 of the TP Act. On the other hand, Section 43 of the T.P.Act symbolizes the principle of \feeding the estoppel\. 23. The Privy Council in Tilakdhari Lal v. Khedan Lal AIR 1921 PC 11 2, explained the principle of \feeding the estoppel\ in the following words: If a man has no title whatever to property but grants it by a conveyance which in form would carry the legal estate, and he subsequently acquires an interest s ufficient to satisfy the grant, the estate instantly passes. 24. The essential purpose of the provisions is to safeguard the tran sferee under a contract or a concluded transaction from the consequences flowing from the fault and deficiency in the title of the transferor, and to mitigate f rom the firmness of the procedure of the principle of law, that no man can tran sfer a better title than what he possesses . An additional characteristic of bot h the provisions of Section 43 of T.P. Act, being, it is relevant only when the transferor acquires the title at a subsequent stage. 25. The principle underlying the provisions of Section 43 would get attracted to give a right to the transferee to insist on the transferor in the t ransaction to do the needful, in case the latter acquires the title subsequently , which he did not possess at the time of entering into the contract or effectin g the transfer. Such a right emanates from the principle, that a party who has m ade the other to believe that he holds valid title, cannot keep to himself, the advantage of acquiring the title at a later point of time. This pre-supposes tha t the party claiming such a right was not aware of the defect in the title of hi s vendor. 26. In AIR 2010 AP 99 S. Kanaka Durga Manikyhamba and Ors. vs Ramap ragada Surya Prakasa Rao, while discussing a similar issue in question observed as follows: 22. Courts have recognized an exception to the extension of benefit under Secti on 43 of the TP Act. If the transferee was aware of the absence of, or defect in , the title of the transferor, vis-a-vis the property before the transaction has taken place, he cannot enforce the right conferred upon him under Section 43 of the Act. In Kisan Sitaram Ambekar v. Sitaram Tulsiram AIR 1951 Nag 241, the Nag pur High Court noted, Para-23 : It has been settled by numerous decisions, which are collected by Sir Dinshah Mulla at pp. 209 and 210 of Edn. 3 of his Transfer of Property Act and b y B.B. Mitra at p. 184 of the 9th Edn. of his book on the Act and is also sugges ted in Chandulal v. Raghunathdas 1942 NLJ 82 at p. 86, that Section 43 is a spec ies of estoppel and so cannot be availed of by a person who knows the facts and was not misled, and, according to some of those decisions, it is necessary for t he person wanting to take advantage of this section to plead and prove that he t ook the transfer in good faith believing in and being misled by the erroneous re presentations made by the transferor. I need not go as far as that, but it is ev ident that the questions of knowledge and belief are material and so the other s ide must be given a chance of raising these defences if and when Section 43 is p leaded. 23. In Ouseph v. Govindankutty Menon MANU/KE/0051/1972 <javascript:fnOpenGlobalP opUp(’/citation/crosscitations.asp’,’MANU/KE/0051/1972’,’1’);> : AIR 1972 Ker 17 6, the Kerala High Court explained the principle as under: Para 2:... Section 43 is founded on the rule of estoppel and therefore in order to attract the principle of that section it is necessary to show that there has been an erroneous or fraudulent representation. If both parties are aware of the absence of or defect in the title of the transferor, that will not be a case wh ere there is an erroneous representation. In such a case, there is no scope for applying the rule of estoppel embodied in Section 43 of the Transfer of Property Act. This principle has now been well settled, whatever might have been the con flict of views on this question earlier. The Supreme Court in the decision in Ju mma Masjid v. Kodimaniandra Deviah AIR 1952 SC 847 has stated the principle gove rning such cases.... 27. Hon’ble the Supreme Court in Ni. Pra Channabasava D.S. Matadhipa thigalu and Kannada Mutt Vs. C.P. Kaveeramma and Ors. (2009) 11 SCC 28 observ ed that The sine quo non for application of Section 43 <javascript:fnOpenGlobalPopUp(’/ ba/disp.asp’,’21531’,’1’);> is that at the initial stage the person should have fraudulently or erroneously represented that he is authorized to transfer certai n immovable property or professes to transfer such property for consideration. O nly if this pre-condition is satisfied, the question of option of the transferee arises in case the transferor acquires any interest in the property at any time during which the contract of transfer subsists. 28. In the present case in hand, there is no pleading to show that p laintiff was not aware of the absence of title in the vendor, vis-à-vis the land . In fact, the pleadings in plaint do not make this clear at all. Plaintiffs-res pondents’ witnesses Pratap Sing Rajput clearly deposed that he had no title over the plot of land, when the suit land was transferred to Plaintiffs-respondents. Admittedly the Government acquired the land by issuing a notification, as such the land vested on the Government. Apparently plaintiffs-respondents had chosen to transact with the vendor Pratap Singh Rajput, knowing fully well that the lat ter did not hold title to the land at the relevant time. Therefore, the concept in which section 43 rests is not available for the plaintiffs-respondents to har ness since she knew the vendor had no transferable right over the suit land due to acquisition of the land by the Government. The subsequent acquisition of titl e by the vendor, therefore, does not ensure the benefit to the plaintiffs-respon dents by application of Section 43 of the T.P.Act. 29. On the other hand, it may not be lost sight of that the dispute is not in between the transferor and the transferee. In the instant case the def endant-appellant claims his right as a person in occupation of the land in quest ion. Therefore, analogy projected by the learned counsel for the defendant canno t be applied in the present case and the principles of law as envisaged under se ction 43 of the T.P. Act is not applicable in the facts and circumstances of thi s case. 30. In view of the above discussion, without lengthening the discuss ion any further, since the original owner Sri Pratap Singh Rajput had no transfe rable right and title over the suit land, at the time of execution of the sale d eed by him, he could not have transferred the land to the plaintiff during the p eriod in which, the suit land in question was acquired by the Government and whe n in fact the suit land was in possession of the defendant-appellant. Any such t ransfer made by Sri Pratap Singh Rajput was illegal in the eye of law. On the o ther hand, since the land was purchased by the plaintiffs/respondents from the v endor, knowing fully well that it was a Government land, the prime requisite for application of Section 43 of the T.P.Act, i.e., fraudulent or erroneous represe ntation by the vendor being not available, no benefit under Section 43 of the T. P.Act, can be made available on behalf of the plaintiffs-respondents [See. Ni. P rachanna basava D.S. Matadhi Pathi galu (supra). 31. Accordingly, in view of the above discussion, it appears that th e plaintiffs could not acquire right, title over the suit land by virtue of sale deed dated 19.04.1983 (Ext.1) and 3.2.1988 (Ext.2), which were executed after t he suit land was acquired by the Government as ceiling surplus land in the year 1977, under the provisions of Assam Fixation of Ceiling on Land Holdings Act, 19 56. 32. Therefore, the substantial question of law formulated in this secon d appeal is decided in negative and in favour of the appellant, and consequently , this second appeal is allowed setting aside the impugned judgment and decree o f the learned first appellate Court delivered on 05.5.2001 in Title Appeal No. 1 3 of 1999 and affirming the order of dismissal of the suit passed by the trial C ourt. 33. Considering the facts and circumstances stated above, there shall b e no order as to costs.