High Court
Case Details
RSA 173/2002 BEFORE HON’BLE MR JUSTICE B.P.KATAKEY JUDGMENT & ORDER(ORAL) This appeal by the defendants is directed against the judgment a nd decree dated 2nd of August, 2002 passed by the learned Civil Judge (Sr. Divn. ), Nagaon in Title Appeal No. 1/2002, allowing the appeal preferred by the plain tiffs by setting aside the judgment and decree dated 14.12.2001 passed by the le arned Civil Judge, (Jr. Division), Nagaon in Title suit No. 44/1999, whereby and whtereunder the trial court initially dismissed the suit of the plaintiff.
Legal Reasoning
2. The respondents, as plaintiffs, instituted the aforesaid suit f or declaration of their right, title and interest as well as for recovery of kha s, possession in respect of the land measuring 2 bighas ‰ lechas, described in t he schedule to the plaint, contending inter alia that the land measuring 4 bigh as 1 lechas in dag No. 528 of periodic patter No. 43 of Barapujia Kissam origin ally belonged to Kamision Lalung and Nanoki Lalung. It has further been pleaded that after the death of Kamision Lalung, his only son Ilising Konwar, Kacharini Konwar his widow and Saruti Konwar his daughter inherited the land belonged to Kamision Lalung. The further pleaded case of the plaintiffs is that there was mu tual partition of the land between Kamision Lalung and Nanoki Lalung and the lan d measuring 2 bighas and 1 lechas, therefore, fall in the share of the successor and legal heirs of Kamision Lalung. It has also been pleaded that during the a bsence of the plaintiffs the principal defendants in the year 1991 occupied the disputed suit land and when they were requested to vacate the same, they refused to do so and thereafter as the defendants denied the title, they had to institu te the suit for declaration of right, title and interest as aforesaid. 3. The defendants No. 1 to 5 filed joint written statement denying the claim of the plaintiffs in the plaint and contending inter alia that the lan d measuring 1 bigha 2 kathas i.e. the suit land belongs to plaintiff No. 1, who was the exclusive owner and possessor of the land and who transferred the said land in favour of the defendants vide registered sale deed no. 3014/89 and by vi rtue of such sale they became the owners of the suit land. It has further been p leaded that on the death of Ilising Konwar there was partition of the land left behind by him among the two brothers viz. the plaintiff No. 1 and 2, by virtue of which the suit land fell in the share of plaintiff No. 1 and the land in Sari ahtoli fell in the share of plaintiff No. 2. It is further pleaded in the writte n statement that the plaintiff No. 3, the widow of Ilising Konwar, because of he r subsequent marriage has lost right, title and interest over the suit land. 4. amed the following issues for determination :- On the basis of the pleadings of the parties, the trial court fr 1. 2. 3. 4. 5. ? suit land ? Whether there is cause of action to file the suit ? Whether the suit is bad for non-joinder of necessary parties ? Whether the suit is barred by law of limitation ? Whether the suit is barred by waiver, estoppel and acquiescence Whether the plaintiff has any right, title and interest over the Whether the plaintiff No. 1 sold the suit land to the defendants on 11-9-89 by a registered sale deed no. 3014/89 at a consideration 6. of Rs.18,000/- and delivered possession ? 7. 8. Whether the plaintiff is entitled to the decree as prayed for ? To what relief/reliefs the parties are entitled to ? 5. The trial court upon appreciation of the evidence adduced by the parties, dismissed the suit of the plaintiffs by holding that the plaintiff No. 1 has sold the suit land in favour of the defendants vide Ext. Ka sale deed dat ed 11.9.89. Being aggrieved, the plaintiffs preferred the aforesaid appeal, whic h has been allowed by the First Appellant Court by the judgment and decree dated 2nd of August, 2002, partly decreeing the suit of the plaintiffs by holding tha t the plaintiff No. 1 has lost his right, title and interest over 1/3rd of the suit land by virtue of Ext. Ka sale deed and declared the joint possession of th e defendants in respect of the said 1/3rd share of the suit land with the plaint iffs No. 2 and 3 by setting aside the judgment and decree passed by the trial co urt. Hence, the appeal. 6. The appeal was admitted for hearing vide order dated 20.12.2002. on the following two substantial questions of law :- Whether the suit filed by the plaintiffs/respondents was hit by the provisions of Section 41 of the Transfer of Property Act in view of 1. Ext. - 1, the Zamabandi ? Whether the lower appellate Court was correct in apply ing the provisions of Section 44 of the Transfer of Property Act ignoring the provisions of Section 41 of the Transfer of Property Act ? 2. 7. llants. None appears for the respondents despite service of notice.
Legal Reasoning
I have heard Mr. S. Ali, learned counsel, appearing for the appe 8. Referring to the judgment passed by the trial court and also the evidence adduced by the parties, it has been submitted by Mr. Ali, learned coun sel for the appellants that since the plaintiff No. 1, who is admittedly one of the co-sharers, with the consent of the other co-sharers, have transferred the l and vide Ext. Ka sale deed in favour of the defendants for a valuable considerat ion and as the defendants has purchased the land after making reasonable enquiry to ascertain that the plaintiff No. 1 had the power to make the transfer and ha s acted on good faith, the sale by plaintiff No. 1 in favour of the defendants i s not voidable, in view of the provisions of Section 41 of the Transfer of Prop erty Act and as such the First Appellate Court ought not to have decreed the sui t of the plaintiffs in part in so far it relates to 2/3rd share of the property. The learned counsel submits that the First Appellate Court while deciding the a ppeal though has taken note of the provisions of Section 44 of the Transfer of P roperty Act, has however, completely ignored the provisions of Section 41 of the said Act. 9. I have considered the submissions advanced by the learned counse l for the appellant and also perused the judgments and decrees passed by the lea rned courts below apart from the evidence adduced by the parties. 10. Section 41 of the Transfer of Property Act provides that where w ith the consent, expressed or implied, of the persons interested in the immoveab le property, a person is an ostensible owner of such property and transfers the same for consideration, the transfer shall not to be voidable on the ground that the transferor was not authorised to make it ; provided that the transferee , a fter taking reasonable care to ascertain that the transferor had power to make t he transfer, has acted in good faith. The ingredients of Section 41 are (1) the transferor is the ostensible owner (ii) he is so by the consent, expressed or i mplied, of the real owner (iii) the transfer is for consideration (iv) the trans feree has acted in good faith, taking reasonable care to ascertain that the tran sferor had the power to make the transfer. 11. In the instant case it is not in dispute that the plaintiffs No. 1, 2 and 3 are the successors and legal heirs of Ilising Konwar who apart f rom the suit land has also land at Sariahtoli. The fact of execution of the sale deed by the plaintiff No. 1 in favour of the defendants in respect of the suit vide Ext. Ka sale deed has also been proved. The question which arises for consi deration in the present appeal, therefore, is that whether the plaintiff No. 1, who is one of the co-sharers, could have transferred the entire suit land in fa vour of the defendants and whether the defendants are entitled to the benefits o f Section 41 of the Transfer of Property Act. 12. The defendants have claimed that the property left by Ilising Ko nwar was partitioned among the two sharers, namely, plaintiff No. 1 and 2. The d efendants have also set up the pleadings that the plaintiff No. 3 has not inheri ted the property though she was the widow of Ilising Konwar as after the death o f Ilising Konwar she had married another person. Such assertion, however, could not be proved by the defendants i.e. that the plaintiff No. 3 has married anoth er person after the death of her husband. The defendants also could not prove by adducing any cogent evidence that there was amicable partition of the property left by Ilising Konwar and the suit land fell in the share of the plaintiff No. 1, as pleaded in the written statement. Though the plaintiff No. 2, who accordin g to the defendants had consented the transfer and accordingly vide Ext. 1 trans fer was made by plaintiff no. 1 in favour of the defendant, was examined as wit ness, he was never cross examined on the claim of the defendants that such conse nt was given. Not even a suggestion was put to the said witness. The defendants, therefore, could not prove the consent, expressed or implied, by the plaintiff No. 2 to the plaintiff No. 1 for sale of the suit land though he had the share i n the suit land. 13. As noticed above, the plaintiff No. 3 has also the share in the suit land she being the widow of Ilising Konwar. It is not the case of the defen dants that her consent was obtained either implicitly or expressly by the plaint iff No. 1 for transfer of the suit land in favour of the defendants. That being the position, I am of the view that the ingredients o 14. f Section 41 of the Transfer of Property Act could not be proved by the defendan ts so as to take the benefits of the said provisions of law. Hence, the learned trial court has rightly decreed the suit of the plaintiff in part, as noticed ab ove. 15. 16. The second appeal, is therefore, dismissed. No cost. The Registry is directed to send down the records.