JUDGMENT : Misra, J. - Plaintiff purchased the disputed land by a registered sale deed (Ex. 8) on 30-7-1961 for a consideration of Rs. 3000/ - from the Maharaja of Parlakimedi (Defendant-I). On 31-8-1962 by an order (Ex. V-2) of the Collector in a case under the Orissa Estates Abolition Act, 1951 (Orissa Act No. 1 of 1952), hereinafter referred to as the Act, Defendant-2 was found to be in possession of the holding as a tenant under the Intermediary (Defendant-}) before the date of vesting, and was deemed to be a tenant of the State Government from the date of vesting in 1953. The effect of this order was that the proprietary interest in the disputed land vested in the State of Orissa and the tenancy right remained with Defendant-2 under the State as the landlord with effect from the year 1953 though in fact Defendant-2 was paying rent to Defendant-1 until the date of sale. Plaintiff's case is that on 30-7-1961 Defendant-1 had no saleable interest in the disputed land and could not have conveyed either title or possession. The first relief sought by him was for refund of the consideration of Rs. 3000/ - from Defendant-1, who received the same under a void agreement. In the alternative, Plaintiff prayed that if Defendant-1 had any manner of saleable interest in the suit land, Plaintiff's title to the same be declared and delivery of possession of the same be given to him. Defendant-1 contested the suit alleging that by the date of the sale there were various litigations between him and Defendant-2. Defendant-2 was successful in a proceeding under the Orissa Tenants Relief Act and Defendant-1 could not evict him. The case under the Act as to who would be deemed to be the tenant of the disputed land on the date of the vesting was also pending. Plaintiff purchased the disputed land knowing fully well that the possession was with Defendant-2 and that title to the land was under examination in the proceeding under the Act. Defendant-1 conveyed whatever title he had and the matter was made clear in the very recitals of the sale deed. The relevant recital is to the effect. The land is sold to you with all my rights over it and the possession is delivered to you as per the existing state of affairs.... Defendant-1 conveyed whatever title he had and the matter was made clear in the very recitals of the sale deed. The relevant recital is to the effect. The land is sold to you with all my rights over it and the possession is delivered to you as per the existing state of affairs.... The land sold to you is at present under the cultivation of Edla, Appalswamy (Defendant-2)". Defendant-1 denied his liability to refund the consideration in the aforesaid circumstances. Defendant-2 contested the suit alleging that he was in possession of the disputed land long before the vesting in the year 1953 and is continuing in possession even till now. In view of his possession before the date of vesting, he was to be statutorily recognised as the tenant of the disputed land under the State Government from the date of vesting u/s 8(1) of the Act. 111 various litigations under the Orissa Tenants Relief Act, Defendant-1's prayer for eviction was dismissed. He has been recognised as the tenant u/s 8(1) in the proceeding under the Act between Defendant-1 and himself. Plaintiff's alternative prayer for declaration of title and recovery of possession is liable to be dismissed. 2. The learned trial Court held that Defendant-1 had no saleable interest on 30-7-1961, that he had more than 33 acres of land in his Khas possession on the date of vesting and that the Plaintiff was not aware of the pending litigations between the Defendants u/s 9(2) 01 the Act. Un the aforesaid findings it passed a decree for refund of consideration against Defendant-1 and dismissed the suit for declaration of title and recovery of possession against Defendant-2, whom it held to have got title and possession of the disputed land. Plaintiff did not file any appeal against the trial Court's decree dismissing the alternative relief against Defendant-2. Defendant-1 impleaded Defendant-2 as a party to his appeal before the learned lower appellate Court. No party challenged the finding that the tenancy right in the disputed property vested in Defendant-2 under the State as the landlord. Plaintiff's alternative prayer for declaration of title and recovery of possession thus became concluded after the trial Court's decree and is no longer under litigation. It is conceded before me by the learned advocates for the parties that Defendant-2 has a valid title to the disputed land and the appeal was argued on that footing. Defendant-2. Plaintiff's alternative prayer for declaration of title and recovery of possession thus became concluded after the trial Court's decree and is no longer under litigation. It is conceded before me by the learned advocates for the parties that Defendant-2 has a valid title to the disputed land and the appeal was argued on that footing. Defendant-2. might not have been impleaded as a party to the second appeal. 3. To have a clear picture of the case, it would be profitable to give a chronological history of the various important faces pertaining to the title and possession of the disputed land. It admittedly belonged to Defendant-1. Defendant-2 was a Bhag tenant on the land. The estate of Parlakimedi vested in the State of Orissa u/s 3 of the Act on 1-6-1953. u/s 8(1) of the Act, any person who immediately before the date of vesting of an estate in the State Government was in possession of any holding as a tenant under any Intermediary shall, on and from the date of vesting, be deemed to be a tenant of the State Government and such person shall hold the land in the same rights and subject to the same restrictions and liabilities as he was entitled or subject to, immediately before the date of vesting. u/s 7(2) of the Act, as it originally stood, if the claim of an Intermediary as to his Khas possession over 'the lands referred to in Sub-section (1) or as to the extent of such lands is disputed by any person, the Collector shall, prior to the determination of rent of such lands under the said Sub-section make such inquiry into the matter in the prescribed manner and pass such order as may appear to him to be just and proper. It would thus appear that the Sub-section, as it originally stood, necessitated an inquiry only if the claim of the Intermediary, to the Khas possession was disputed. If the claim was not disputed, the Khas possession of the intermediary was recognised. It appears that Defendant-2 did not raise any dispute as to the Khas possession of Defendant-lover the disputed land. Accordingly under the law, as it stood then, Defendant-1 was held to have Khas possession and be was deemed to be the tenant of the disputed land on the date of vesting. It appears that Defendant-2 did not raise any dispute as to the Khas possession of Defendant-lover the disputed land. Accordingly under the law, as it stood then, Defendant-1 was held to have Khas possession and be was deemed to be the tenant of the disputed land on the date of vesting. This would appear from the recitals in the order-sheet of the Collector in Case No. 9/60 subsequently started u/s 9(2) of the Act. The order dated 28-10-1959 (Ex. 11) is to this effect: The Collector has assessed rent u/s 7 of the Orissa Estates Abolition Act in respect of private land of the Maharaja of Parlakimedi situated in village Dalapaseri and contained in Khatian No and Survey No. 134 prior to the Amendment of 1956 of the Orissa Estates Abolition Act. 4. By the Orissa Estates Abolition (Amendment) Act, 1956 (Orissa Act 15 of 1950), Section 7, Sub-section (2) of the original Act was omitted, Section 8-A was inserted and Section 9 was Substituted. Section 8-A, Sub-section (1) is to the effect The Intermediary shall file his claim in the prescribed manner for settlement of fair and equitable rent in respect of lands and buildings which are deemed to be settled with him u/s 6 or Section 7 before the Collector within three months from the date of vesting. There are two provisos to the Sub-section. The first proviso is Provided that the Collector shall, as soon as may be after any such claim under Sub-section (1) or (2) is filed, notify the same in the Official Gazette inviting objections from persons interested. The second proviso is- Provided further that in respect of estates which have vested in the State Government prior to the date of commencement of the Orissa Estates Abolition (Amendment) Act, 1956, the claims mentioned in Sub-sections (1) and (2) shall be filed before the Collector within three months from the said date. The second proviso is- Provided further that in respect of estates which have vested in the State Government prior to the date of commencement of the Orissa Estates Abolition (Amendment) Act, 1956, the claims mentioned in Sub-sections (1) and (2) shall be filed before the Collector within three months from the said date. The new Section 9, Sub-section (2) reads thus- All claims referred to in Sub-sections (1) and (2) of Section 8-A allowed by the Collector prior to the date of commencement of the Orissa Estates Abolition (Amendment) Act, 1956, shall, as soon as may be, after the said date, be notified in the prescribed manner by the Collector in the Official Gazette, Any objection received within a period of three months from the date of the said notification shall, after the parties are given an opportunity of being beard, be duly considered by the Collector who shall pass such order as 'he') thinks fit and proper and the order so made shall be final. It would thus be clear that the Section 8-A and the substituted Sub-section (2) of Section 9 introduced a radical change as to how the claims were to he filed and settled. Under the Original Act, unless a dispute was raised, the claim was decided in favour of the Intermediary, while u/s 8-A and 9(2), brought into the Act by the Amendment Act of 1956, the Intermediary shall have to file his claim in the prescribed manner. Such claim shall have to be notified by the Collector inviting objections from the persons interested. The limitation for filing the claim was extended s being three months from 30-6-1956 when Orissa. Act 15 of 1936 came into force. Objections were invited within a period of three months from the date of the said notification. The Collector had to give his decision after giving full opportunities to the parties of being heard. As a result of the aforesaid change in law, the Settlement made in favour of Defendant-1 was nullified. What was past and closed was resuscitated into life. It became subject to fresh inquiry. After vesting Defendant-1 cannot, therefore, claim any title to the disputed land on the ground that it was settled with him u/s 7 of the Act. By the Orissa Estates Abolition (Amendment) Act, 1957 (Orissa Act 23 of 1957) the first proviso to Section 8-A was substituted. It became subject to fresh inquiry. After vesting Defendant-1 cannot, therefore, claim any title to the disputed land on the ground that it was settled with him u/s 7 of the Act. By the Orissa Estates Abolition (Amendment) Act, 1957 (Orissa Act 23 of 1957) the first proviso to Section 8-A was substituted. The change introduced was that in place of the words "notify the same in the Official Gazette" the words "give public notice thereof by beat of drum in the appropriate locality and by placards posted at such conspicuous places as he deems fit" were substituted. By Section 4 of this Act, the words "in the Official Gazette" were omitted from Sub-section (2) of Section 9 of the Act. The net result of the amendment was that the claim made was no longer to be published in the Official Gazette. A public notice thereof by beat of drum in the appropriate locality and by placards posted at such conspicuous places as the Collector deems fit would be sufficient to invite objections from persons interested. Rule 8-A of the Orissa Estates Abolition Rules, 1952 (hereinafter referred to as the Rules) deals with the manner of notification u/s 9(2) of the Act. Prior to Orissa Act 23 of 1957, all claims were to be published under Rule 8-A in the Official Gazette in Form J. By Notification No. 41962-EA-II. 63/59-R, dated 1-10-1959, Rule 8-A was substituted. After substitution it stands thus; All claims referred to in Sub-sections (1) and (2) of Section 8-A, allowed by the Collector prior to the date of commencement of the Orissa Estates Abolition (Amendment) Act, 1956 (Orissa Act XV of 1956), shall be drawn up by him in Form 'J' of the Schedule and public notice thereof shall be given by beat of drum in the appropriate locality and by posting of the said form at such conspicuous places as he deems fit. 5. After the amendment of Rule 8-A on 1-10-1959, in Case No. 9 of 1960 on 28-9-1951 the Collector invited objection within three months from the date of publication (see Ex. 11). Notice in Form 'J' was published on 9-11-1959. The claim referred to the disputed land. 5. After the amendment of Rule 8-A on 1-10-1959, in Case No. 9 of 1960 on 28-9-1951 the Collector invited objection within three months from the date of publication (see Ex. 11). Notice in Form 'J' was published on 9-11-1959. The claim referred to the disputed land. In the notice it was clearly stated that the claim had been allowed by the Collector of Ganjam prior to the commencement of the Orissa Estates Abolition (Amendment) Act 1956 (Orissa Act XV of 1956,) The date of the final order in which the claim had been allowed prior to the aforesaid Act, was given an "7-5-1935", in column No. 8 of the notice in Form 'J'-(Ex. 12). Defendant-2 filed objection (Ex. 12/a) on 7-12.1959. Therein he asserted that he was cultivating the disputed land as the raiyat of Defendant-1 for the last 25 or 30 years. He claimed occupancy right in the land as it was jeraiti. Defendant-1 filed written statement (Ex. 12/a) in Case No. 9/1960 on 16-7-1900 and asserted that it was his private land and no occupancy right could be accrued in it. It was admitted that Defendant-2. was cultivating the disputed land as an yearly tenant after executing the necessary Muchalika every year. His possession of the land for 20 years was denied. Defendant-2's claim for occupancy right was thus challenged. On 3-11-1961 Defendant-1 filed on Memo (Ex. 12/c) in the very case that he had already sold the disputed land by a registered sale deed in favour of the Plaintiff and that Patta may be granted to the Plaintiff. On 31-8-l962 the Collector passed an order that ?he disputed land was settled with Defendant-2. 6. In the light of the aforesaid statements of law and facts it is now necessary to examine whether Defendant-1 had any vestige of title in him on 30-7-1961 when he transferred the disputed land by registered sale deed Ex-8 in favour of the Plaintiff. In Sections 7, 8 and 8-A of the Act, the expression used is that the Intermediary or the tenant shall be deemed to be tenant of the State Government in respect of lands in their Khas possession. This expression has been discreetly used for the simple reason that on the date of the vesting it would not be possible to know as to whether the Intermediary or the tenant was in Khas possession of the lands. This expression has been discreetly used for the simple reason that on the date of the vesting it would not be possible to know as to whether the Intermediary or the tenant was in Khas possession of the lands. Claims were to be invited, inquired into and determined. The possession during the intervening period, from the date of vesting till the final determination, would be immaterial. Khas possession prior to the date of vesting would confer the right on the claimant for accrual of occupancy right. It was for this reason, the Legislature adopted the legal fiction that the person found to be in Khas possession prior to the date of vesting shall be deemed to be the tenant of the disputed land on the elate of vesting. Until final determination, none of Defendants-1 and 2 could claim occupancy right. Defendant-1 had, therefore, no title on the date of sale in favour of the Plaintiff, as it transpired from the decision taken in the estates abolition case. If the Collector had decided that Defendant-l was in Khas possession of the disputed land prior to the date of vesting, the cage would have been decide in his favour. On such a decision being taken, he could have been held to have title on the date of sale. As ultimately the decision was in favour of Defendant-2, conclusion is irresistible that Defendant-1 had no title on the date of sale. Admittedly he had also no Khas possession on that day which of course was immaterial for the decision of the case. 7. The next question for consideration is whether the Plaintiff knew or could have known that Defendant-1 had no title to the disputed land on the date of sale. The chronology of events culminating in the transaction of sale between the Plaintiff and Defendant-1 may be narrated. On 14-8-1958 Plaintiff made an application (Ex. A/1) for purchase of the disputed land offering to pay Rs. 2750/ - provided delivery of possession was given by evicting the cultivating tenant (Defendant-2). By a Memo (Ex. B/l) dated 19-8-1958 Defendant-1 informed the Plaintiff that the land was not for sale. Plaintiff replied by a letter (Ex. C/l) on 16-9-1958 offering an enhanced consideration of Rs. 3,300/ - and requesting for registration being effected in the first week of October. 1958. Defendant-1 accepted the offer by letter (Ex. By a Memo (Ex. B/l) dated 19-8-1958 Defendant-1 informed the Plaintiff that the land was not for sale. Plaintiff replied by a letter (Ex. C/l) on 16-9-1958 offering an enhanced consideration of Rs. 3,300/ - and requesting for registration being effected in the first week of October. 1958. Defendant-1 accepted the offer by letter (Ex. 1) dated 16-9-1958 with a direction that the Plaintiff should deposit Rs. 1,500/ -. On 17-9-1958 Plaintiff deposited Rs. 1,500/ - as evidenced by receipt (Ex. 2). On 18-9-1958 the Plaintiff wrote a letter (Ex. D/1) asking for an assurance in writing from Defendant-1 that no further offer would be entertained. Defendant-1 agreed to the proposal by letter (Ex. E/1) on 19-9-1958. Plaintiff deposited Rs. 550/ - as per receipt (Ex. 2/a) on 20-9-1958. Defendant-1 asked the Plaintiff to make the entire deposit and to submit the sale deed for the signature of Defendant-1 by letter (Ex-F/1) dated 25-10-1958. By four receipts (Exs- 2/b to 2/e) dated 28-10-1958, 27-2-1959 and 13-3-1959 and 18-3-1959 Plaintiff deposited Rs. 300/ -, Rs. 500/ -, 350/ - and 150/ - respectively. The proceeding for eviction of Defendant-2 by Defendant-1 under the Orissa Tenants Relief Act was disposed of in favour of Defendant-2 by a judgment (Ex. Z/2) on 1-10-1959 in O.T.R. Revision No. 8/59. The writ application filed by Defendant-1 in O.J.C. No. 83/59 was dismissed on 13-4-1960 (see Ex. M/l). On 5-3-1961 Plaintiff wrote a letter (Ex. 3) to Defendant-1 that he had deposited the entire consideration and that due to litigation between the Defendants registration could not be effected. He wrote that he gathered from the tenant (Defendant-2) that he succeeded in all the litigations and could not be dispossessed. Plaintiff asked for refund of consideration deposited if there was any truth in the assertion of Defendant-2. On 18-4-1961 Plaintiff wrote another letter (Ex. G-1) giving a history of his depositing the entire money and taking a risk due to litigations between the Defendants. He asked for some remission out of Rs, 3,300/ - deposited by him making it clear that he was prepared to face the trouble with the tenant and have the sale deed registered if some remission is made. Defendant-1 replied by letter (Ex. H/1) on 23-6-1961 that a refund of Rs. 300/ - would be granted to him to purchase the stamp paper in view of his prayer under Ex. G/1. Defendant-1 replied by letter (Ex. H/1) on 23-6-1961 that a refund of Rs. 300/ - would be granted to him to purchase the stamp paper in view of his prayer under Ex. G/1. Thereafter the sale deed Ex-8 dated 30-7-1961 was executed by Defendant-1 in favour of the Plaintiff. In the sale deed there was a clear recital that the land was sold to the Plaintiff' with all the rights that Defendant-1 had therein and possession wag delivered to him as per existing state of affairs. It was also clearly recited that the disputed land was under the present cultivation of Defendant-2. From the aforesaid facts conclusion is irresistible that long before the sale, Plaintiff clearly knew that Defendant-2 was in possession of the disputed land as cultivating tenant and the proceeding by Defendant-1 to evict him under the Orissa Tenants Relief Act had been decided in favour of Defendant-2 and under the Orissa Tenants Relief Act, Defendant-2 had a non-evictable right of possession. 8. From the discussion already made, Plaintiff knew or at any rate, must be presumed to have known that the Act had been passed, that the estate of Parlakimedi had vested in the State of Orissa in 1953, that the Maharaja of Parlakimedi was a big land-owner with lands more than 33 acres in Khas possession, that under Sections 7, 8 and 8-A of the Act, either a claim was actually filed or was likely to have been filed in respect of the disputed land, that Defendant-2 might have disputed the claim and that after vesting, the title of Defendant-1 to the disputed land cannot be said to have existed until a final determination in that regard had been made in a proper proceeding under the Act. 9. It is to be noted that by the date of the sale on 30th of July, 1961, the patta of the land stood in the name of Defendant No. 1, despite the pendency of the case u/s 9(2) of the Act. In fact, on the 3rd of November, 1961, Defendant No. 1 filed a memo (Ex. 12/c) before the Collector under the Act that the patta might be granted in favour of the Plaintiff as the land had been sold to him. The patta (Ex. 5) was granted to the Plaintiff by the Tahsildar on 5-1-1962. In fact, on the 3rd of November, 1961, Defendant No. 1 filed a memo (Ex. 12/c) before the Collector under the Act that the patta might be granted in favour of the Plaintiff as the land had been sold to him. The patta (Ex. 5) was granted to the Plaintiff by the Tahsildar on 5-1-1962. Thus, though on paper the patta originally stood in the name of Defendant No. 1 and was subsequently transferred in the name of the Plaintiff, neither Defendant No. 1 nor the Plaintiff had any title to the disputed land which was under examination in the estates abolition case. Just as the Plaintiff is presumed to know the legal position and should have known that the land had not been settled with Defendant No. 1 by the date of the sale, so also, Defendant No. 1 knew clearly or at any rate, must be presumed to know that he had no title to the land and it is only after the final determination of the proceeding under the Act that the person on whom the land would be settled would get title. 10. On the aforesaid analysis, the following conclusions are irresistible: I Defendant No. 1 had no saleable interest in the disputed property on the date of the sale. Defendant No. 1 knew this fact or at any rate, must be presumed to have known after the vesting of the estate in 1953 and after the passing of the amending Act in 1956; II. There are no materials on the record to indicate that Plaintiff actually knew that a case under the Act between the Defendants was pending. In view of the change of law, Plaintiff should have made an enquiry prior to the sale as to whether any such proceeding was pending. Plaintiff must, therefore, be presumed to know that such a proceeding was pending; III. The recitals in the sale deed (Ex- 8) show that Defendant No. 1 did not disclose about the factum of the pendency of a proceeding u/s 9(2) of the Act between the Defendants, though there was a dear recital that the actual possession of the land was with Defendant No. 2. 11. On the aforesaid finding, the question for consideration is whether Plaintiff is entitled to the refund of the consideration. The relevant provisions of Section 55 of the Transfer of Property Act may be extracted. 11. On the aforesaid finding, the question for consideration is whether Plaintiff is entitled to the refund of the consideration. The relevant provisions of Section 55 of the Transfer of Property Act may be extracted. The section deals with rights and liabilities of buyer and seller. 55. In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold: (1) The seller is bound- (a) to disclose to the buyer any material defect in the property or in the seller's title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover; .... (f) to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits; .... (2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same. 12. Under Sub-section (1)(a), the seller was bound to disclose to the buyer any material defect in the seller's title of which the seller is aware, but the buyer is not and which the buyer could not with ordinary care discover. The material defect in the seller's title in this case was that by the date of the sale the land had not been settled with Defendant No. 1. He had no power of transfer. Even if it is argued that the matter had not been finalised, and the possibility of the property being settled with the Defendant No. 1 could not be wholly excluded by the date of the sale as the enquiry had not finalised, Defendant No. 1 by the date of the sale had only a bare chance of the land being settled with him. u/s 6 of the Transfer of Property Act, such an expectancy is not transferable. Judged from any point of view, Defendant No. 1 had no title to the property and could not have transferred the same in favour of the Plaintiff. Defendant No. 1 should have disclosed this fact to the Plaintiff before the sale. u/s 6 of the Transfer of Property Act, such an expectancy is not transferable. Judged from any point of view, Defendant No. 1 had no title to the property and could not have transferred the same in favour of the Plaintiff. Defendant No. 1 should have disclosed this fact to the Plaintiff before the sale. There are no materials in record that the Plaintiff was aware of this fact. It cannot, however, be denied that the buyer could have with ordinary care discovered this defect in the seller's title. Plaintiff knew or at any rate must be presumed to know that the Act with a number of amendments had come into the Statute Book by the date o the sale. Under the provisions of the Act, the land is to be settled with the person who was in Khas possession thereof prior to the vesting. On determination of such a fact, the person who was in possession prior to the date of vesting shall be deemed to be the tenant of the land on the date of vesting. Thus, though the seller did not disclose the defect in the title, the buyer could have known the defect in the seller's title with ordinary care. Section 55(1)(a) by itself militates against the Plaintiff's contention. 13. u/s 55(1)(f), the seller is bound to give to the buyer such possession of the property as its nature admits. The sale deed clearly recited that actual possession was with Defendant No. 2. There was thus no defect on the part of the seller to give possession of the property in the manner it was capable of. 14. u/s 55(2), a seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same. This Sub-section casts a statutory responsibility on the seller that it gives an implied covenant for title. Even if the buyer was aware of the defect at the time of the contract u/s 55(1)(a) under this Sub-section, he may hold the seller responsible for warranty of title and can claim return of the purchase money. In Mt. Lakhpat Kuer Vs. This Sub-section casts a statutory responsibility on the seller that it gives an implied covenant for title. Even if the buyer was aware of the defect at the time of the contract u/s 55(1)(a) under this Sub-section, he may hold the seller responsible for warranty of title and can claim return of the purchase money. In Mt. Lakhpat Kuer Vs. Durga Prasad a Division Bench of that Court observed as follows: It will be noticed that the covenant which Section 55(2) imports has nothing to do with the question whether the buyer has or has no notice of the infirmity of the title of the seller. The same view has been taken in N. Narasingarayudu v. N. Ankineedu AIR 1902 A.P. 192. It was said that: Under Section 55, every sale for consideration carries with it a covenant for title. Such a covenant is implied. It is open to the vendors to contract themselves out of the covenant for title. That contract to the contrary must be express. Where there is no express language in the sale which can exclude the statutory covenant for title, there is warranty of title u/s 55(2). The same view had been taken in a slightly different circumstance by this Court in Sachidananda Patnaik and Another Vs. G.P. and Co.. In the sale deed, there is no express contract exonerating Defendant No. 1 from the statutory warranty of title prescribed u/s 55(2). As both the Sections 55(1)(a) and 55(2) cast certain liabilities on the seller, both the subsections must be harmonised. Section 55(1)(a) would be subordinated to Section 55(2), when it involves the question of warranty of title, unless there is an express contract to the contrary. In this view of the matter, it is unnecessary to further discuss whether Plaintiff is entitled to refund of the consideration u/s 65 of the Indian Contract Act. Mr. Misra cites Kulla Mal and Ors. v. Umra and Anr. 61 I.C. 604, and Gondu Ramasubba Iyer Vs. Muthiah Kone and Others in support of the contention that once Plaintiff was aware of the infirmity in the title of Defendant, No. 1 he is not entitled to refund of the consideration. Mr. Misra cites Kulla Mal and Ors. v. Umra and Anr. 61 I.C. 604, and Gondu Ramasubba Iyer Vs. Muthiah Kone and Others in support of the contention that once Plaintiff was aware of the infirmity in the title of Defendant, No. 1 he is not entitled to refund of the consideration. In the first case, his Lordship held that 'a purchaser of occupancy rights who knows at the time of the purchase that the landlord has the right to get the sale set aside, purchases the rights at his own risk, unless the vendor covenants to the contrary, and in the event of the sale being set aside at the instance of the landlord and the purchaser being ousted by the latter, the purchaser cannot recover from the vendor the money paid by him'. This decision is correct, in as much as, on the date of the transfer, the transferor had a valid title. If the transferor conveyed a valid title for consideration-and the vendee took the risk knowing that the transfer might be set aside by the landlord, the seller cannot be said to have received an ad vantage under the contract when he parted with his land in consideration for the money. Rightly, his Lordship held that the question of refunding the consideration u/s 65 does not arise in such circumstances. Section 55(2) of the Transfer of Property Act, was not pressed into service in that case. But even if it had been, Plaintiff's suit for refund of consideration would have been dismissed on the ground that on the date of the sale, there is no defect of title. The vendor had given the warranty of title but the vendee took the risk knowing that the sale might be set aside. This decision has no application to the facts of this case. Gondu Ramasubbu Iyer v. Muthiah Kone and Ors., is a single Judge decision which was based purely on a consideration of Section 55(1)(a) of the Transfer of Property Act. His Lordship did not notice the effect of Section 55(2) with respect I must say that this decision is not correctly decided. 15. In the result, the appeal fails and is dismissed with costs. Final Result : Dismissed