scale, question, importance

Transfer By Erroneous Representation Of Title Will Hold Good If Transferor Acquires Title Later.

TANU RAM BORE
VERSUS
PROMOD CH. DAS (D) THROUGH LRS. AND OTHERS

Division Bench
Hon’ble L. Nageswara Rao & M. R. Shah JJ.
M. R. Shah, J.
Dated : February 8th, 2019

LAW POINT :

After the amended Act 20 of 1929, u/s 43 of TPA, it doesn’t matter whether the transferor acted fraudulently or innocently in making the representation and what matters is that the transferor/ vendor makes a representation and the transferee/ vendee has acted on it.

BRIEF FACTS :

The Appellant (original plaintiff) purchased the suit land by a registered sale deed of from Late Pranab Kumar Bora, husband of original Defendant No.2 and Father of original Defendant Nos. 3 to 8 on 06/01/1990.

The suit property/ land was declared as ceiling surplus land in the year of 1988 and consequently, the same was acquired by the Government. However, subsequently on 14/09/1990, the suit land was again declared ceiling free.
Thereafter, the Appellant mutated the land in his name and his name was recorded in the Sadar Jambandi. The original Defendant no. 1 ( an ex-Police officer ) illegally entered into the suit land on 09/04/1995.
The Appellant petitioner immediately filed a suit in the court of Ld. Civil

Judge praying :

  • For the possession of the suit land by evicting Defendant no.1
  • For a decree of declaration declaring his right, title and interest over the suit land and ;
  • Permanent Injunction.

Decision Of The Trial Court :

The Ld. Trial Court decreed the suit in favour of the Appellant petitioner and held that the Appellant purchased the suit land by valid document and has got right, title and interest over suit land.

Assailing the judgment of the Ld. Trial Court, the Defendant no.1 filed an appeal before the First Appellate Court.

Decisions Of The First Appellate Court :

The First Appellate Court allowed the appeal of the Defendant no.1 and remanded back the matter to the Ld. Trial Court, framing an additional issue to the direct i.e, whether the suit land was declared as a ceiling surplus land and as such whether the vendor had any saleable right to sell the suit land to the plaintiff on 06/01/1990.

The Trial Court after considering the additional issue dismissed the suit on merits and held that the disputed land was declared as ceiling surplus land by Government and therefore, Late Pranab Kumar Bora, the vendor, had no right to sell the suit land and by sale deed and consequently, the Appellant has no right, title and interest over the suit land.

Assailing the judgment of Ld. Trial Court an appeal was preferred by the Appellant plaintiff to the First Appellate Court, which was dismissed and the Court further confirmed the judgment of the Ld. Trial Court and also concluded that the Defendants’ right over the suit land was not established u/s 50 of TPA. Hence, the right of original Defendant no.1 over the suit land was also declined.

Decision Of The High Court :

The High Court dismissed the appeal preferred by the Appellant and confirmed the judgment and decree passed by the First Appellate Court inter alia of the Trial Court.

An appeal was then preferred by the aggrieved Appellant in the Hon’ble Supreme Court.

Contention Of The Appellant :

The counsel for the Appellant vehemently submitted as follow :

The Courts below have not at all considered Section 43 of TPA.

It is an admitted position that after the execution of , the sale deed the suit land was subsequently made ceiling free and thereby the sale deed became a valid sale deed and in the view of section 43 of TPA, the right of the Appellant in the suit land are protected pursuant to the sale deed. The Counsel heavily relied upon the decision of the Hon’ble Supreme Court in Ram Pyare v. Ram Narain and Other (1985) 2 SCC 162 and Jumma Masijd v. Kodimaniandra Deviah, AIR 1962 SC 847.

The Trial Court as well as the First Appelate Court failed to appreciate the fact that the Appellant approached the court when the original Defendant no.1 illegally entered into the suit land.

The First Appellant Court has specifically held against Defendant no.1, that he 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 TPA are satisfied and because no appeal is preferred against the order of the first Appellant court then, it had attain finality.

The Defendant no.2 to 8, the legal heirs of the original vender, never challenged the registered sale deed and also never claimed any right, title or interest in the suit land.

Contention of Defendants :

Shri Harisharan Ld.Counsel appearing for Defendant (i.e Defendant no.1’s LR’s [ 1 and 6 ] ) submitted that :

There are concurrent findings of facts by all the courts below that the sale deed was executed in favour of the Appellant but the land in question was a Government land and the original owner had no right, title or interest in the suit land and consequently, the Appellant, also will not have any right.

For getting protection u/s 43 of TPA, the vendor has to prove that the transferor acted fraudulently or erroneously represented, but in the present case, these ingredients are not satisfied.

ISSUE :

Whether the Appellant can take protection u/s 43 of TPA of 1882 Act, claiming his right, title and interest in the suit land.

OBSERVATION OF THE HON’BLE SUPREME COURT :

The Hon’ble Supreme Court made following observation :

The heirs of the original vendor are not contesting the proceeding and they have never disputed the right title and interest of the Appellant.

There is no record to show that the Appellant was informed specifically at the time of execution of the sale deed, that the land in question is ceiling surplus land. In these circumstances, Section 43 of 1882 Act, is highly relied upon.

In Ram Pyare (Supra), it was observed and held by the Hon’ble Supreme Court that as the sale deed in favour of the vendee was result of an erroneous representation of the vendor, thereafter, the son of the vendor cannot claim to be transferees in good faith and thereafter their suit for cancellation of the sale deed would not be maintainable.

In the case of Jumma Masjid (Supra), the following observation are made by the Hon’ble Supreme Court :

Section 43 of TPA embodies rule of estoppels and enacts that a person who makes a representation shall not be heard to allege the contrary as against the person who act on the representation.
It is immaterial whether the transferor acts bonafide or fraudulently in making representation.
The only material to find out whether in fact the transferee has been misled.
After the amended Act 20 of 1929, it doesn’t matter whether the transferor acted fraudulently or innocently in making the representation and what matters is that the transferor/ vendor makes a representation and the transferee/ vendee has acted on it.

DECISION OF THE HON’BLE SUPREME COURT :

Under the facts and circumstances of the case, the Hon’ble Supreme Court held that the rights of the Appellant in the suit land by a sale deed would be protected by the operation section 43 of TPA.

Therefore, the findings recorded by all the courts below that ‘the Appellant plaintiff has no right, title and interest in the suit land’ cannot be sustained and deserves to be quashed and set aside.

Further, other reliefs i.e decree for return of possession and for permanent injunction are deserve to be granted, as the First Appellate Court has specifically held that the defendant no.1 has no right, title and interest in the suit land and the said finding attained, finality. Thus, defendant no.1 cannot be permitted to be continuing in possession.

For a reason stated above, the present appeal is allowed and the judgment and decree passed by the Ld. Trial Court, confirmed by the first Appellate Court are hereby quashed and set aside.

AUTHOR

ANUSHKA SHARMA
Banasthali University.