Case: TANU RAM BORA Vs. PROMOD CH DAS (DEAD) THR. LRS

3. The facts leading to the present appeal in nut and shell are asThat 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 Ex-Police 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 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,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.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 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?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 suitThe 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 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.

Reasoning: 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 beSection 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 permitted to challenge the transfer and/or the transferor has no option to raise the dispute in making theThe 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.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 dated 06.01.1990 cannot be sustained and the same deserves to be quashed and set aside.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.