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2013 DIGILAW 344 (CHH)

Manjari Devi v. Usha Devi

2013-11-28

P.SAM KOSHY

body2013
JUDGMENT P. Sam Koshy, J. 1. Heard. The instant second appeal has been preferred by the appellant challenging the judgment and decree dated 13.1.2005 passed by Additional District Judge (F.T.C.), Kabirdham (Kawardha), in Civil Appeal No. 51-A/2002. By way of the said judgment dated 13.1.2005, the first appellate Court i.e. Additional District Judge (F.T.C.), Kabirdham, has in fact confirmed the judgment and decree dated 18.1.2002 passed by the trial Court i.e. IInd Civil Judge, Class-I, Kawardha, in Civil Suit No. 47-A/2001. 2. Facts leading to the instant second appeal are that the suit land is situated at Khasra No. 340/6 total land measuring to 0.31 acre. The said suit land originally belonged to Gopal Prasad, Bharat Prasad and Shatrudhan. From the three, Gopal Prasad and Bharat Prasad have since died. Of the suit land, 0.20 acre of land was sold by Gopal Prasad when he was alive to the appellant by registered sale deed dated 12.12.1985 (Annexure P/1). Respondents No. 1 to 4 are the legal heirs of the original plaintiff No. 1 i.e. Bharat Prasad and respondent No. 5 was plaintiff No. 2 before the trial Court. Respondents No. 6 to 9 are the legal heirs of deceased Gopal Prasad who was defendant No. 2 before the trial Court. It was Bharat Prasad and respondent No. 5, who were the original plaintiffs before the trial Court, filed the suit for declaration and possession of the suit land measuring 0.20 acre stating therein that the said registered sale deed dated 12.12.1985 (Annexure P/1) is not binding upon them as at the time of the sale, their consent has not been taken by deceased Gopal Prasad. Secondly, the plaintiffs have also taken a plea that on the date when the registered sale deed was executed by Gopal Prasad, Shatrudhan was a minor and for that reason also, Gopal Prasad did not have the authority for selling the suit land over and above his share in the property. It was also the contention of the plaintiffs before the trial Court that no partition has taken place between the three brothers (Gopal Prasad, Bharat Prasad and Shatrudhan) and, therefore, also the sale deed executed by Gopal Prasad would not be binding upon the plaintiffs and that the said registered sale deed dated 12.12.1985 to that extent is also void. 3. 3. The case of the plaintiffs was that after the sale deed was executed on 12.12.1985 by Gopal Prasad without their knowledge, defendant No. 1 i.e. the appellant in the instant second appeal, moved an application before the office of Naib Tehsildar, Kawardha, for mutation and when these proceedings before the Naib Tehsildar, Kawardha, came to the notice of the plaintiffs, they immediately appeared before Naib Tehsildar and objected to the same and finally, the Naib Tehsildar, rejected the application for mutation of defendant No. 1. The said order of Naib Tehsildar was subjected to challenge by appellant/defendant No. 1 before the office of S.D.O., Kawardha, who had rejected the same on the ground of limitation. Against which, the appellant/defendant No. 1 preferred an appeal before the office of Additional Commissioner, Raipur, who, vide his order dated 10.1.1995, remitted the matter back to the office of S.D.O., Kawardha, for deciding the said case on its own merits. The S.D.O., Kawardha, in turn, remitted the matter back to the office of Naib Tehsildar, Bodla, for deciding the matter afresh and the Naib Tehsildar, vide his order dated 16.5.1996 passed an order for entering the name of the appellant/defendant No. 1 in the revenue records. According to the plaintiffs, it is on this date the cause of action arose and, therefore, they had immediately filed a suit before the trial Court seeking a declaration and also possession over the suit property. Appellant/defendant No. 1 entered appearance before the Court below and submitted written statement denying the claim of the plaintiffs and said that the property did not belong to the plaintiffs, but it belonged to only Gopal Prasad as is evident from the name of Gopal Prasad in the revenue records of the year 1984-85. According to the appellant/defendant No. 1, it is the suit property measuring 0.31 acre of land which in the partition fell as share of Gopal Prasad. The case of the appellant/defendant No. 1 was that the suit property was required by the appellant for opening the petrol and diesel pump at the suit land and, therefore, she decided to purchase the land measuring 0.20 acre at the consideration of Rs. 2000/-. According to the appellant/defendant No. 1, she is in possession of the suit property from 12.12.1985 onwards and she is running the petrol and diesel pump from the suit premises. 2000/-. According to the appellant/defendant No. 1, she is in possession of the suit property from 12.12.1985 onwards and she is running the petrol and diesel pump from the suit premises. According to her, the plaintiffs Bharat Prasad and Shatrudhan knew about the sale deed having been executed in the year 1985 itself and at the relevant point of time, they did not raise any objection. 4. The trial Court after the pleadings were recorded, framed six specific issues as to; (i) whether the suit property at Khasra No. 340/6 measuring 0.20 acre was a joint property between the plaintiffs and defendant No. 2? (ii) whether the partition in respect of the suit property had taken place prior to 12.12.1985 and on the basis of which the respective parties were in exclusive possession of the said property? (iii) whether defendant No. 2 had illegally sold the suit property to defendant No. 1? (iv) whether proper valuation of the suit has been done or not? (v) whether the suit was barred by limitation? (vi) whether the plaintiffs were entitled for the relief of declaration and possession in respect of the suit property? 5. After the evidence were recorded on behalf of the parties, the trial Court vide its judgment and decree dated 18.1.2002 decreed the suit of the plaintiffs in their favour and ordered that the sale deed executed by Gopal Prasad (defendant No. 2) on 12.12.1985 in respect of the suit land measuring 0.20 acre in favour of the plaintiffs was illegal and, therefore, declared the same null and void. The finding of the trial Court very categorical was that the fact that the suit property measuring 0.20 acre was a joint property, has been established. 6. The said judgment and decree dated 18.1.2002 passed by the trial Court was put to challenge before the first appellate Court by way of Civil Appeal No. 51-A/2002. The first appellate Court also, after appreciating the objections put forth by the appellant, vide its judgment and decree dated 13.1.2005 reached to the conclusion that the finding arrived at by the trial Court is proper and legal. The first appellate Court also, after appreciating the objections put forth by the appellant, vide its judgment and decree dated 13.1.2005 reached to the conclusion that the finding arrived at by the trial Court is proper and legal. However, the first appellate Court while deciding the first appeal, made a further observation giving liberty to the appellant of two months period for filing a suit of partition between the plaintiffs and legal heirs of defendant No. 2 (Gopal Prasad) who were the original owners of the suit property and for claiming a relief that the area from where the appellant is opening the petrol and diesel pump may be placed in the partition in the share of defendant No. 2 (Gopal Prasad) and if such a suit is filed and such an order is passed, till that time the sale deed dated 12.12.1985 shall remain in force and beyond that period that sale deed shall not have the force of law. 7. It is this judgment and decree dated 13.1.2005 passed by the first appellate Court, which was put to challenge in the instant second appeal. 8. The instant second appeal was admitted for hearing by this Court on the following substantial questions of law:- (i) Whether while decreeing the suit of the plaintiffs, both the Courts below have disregarded the provisions of Section 41 of Transfer of Property Act which protects the interest of bona fide purchasers from ostensible owners? (ii) Whether the findings of both the Courts below that the suit is within time is illegal and contrary on the basis of evidence and material available on record? 9. While answering the two substantial questions of law, the first thing what has to be answered is whether the provisions of Section 41 of the Transfer of Property Act, 1882 (henceforth, "the Act of 1882") has been properly kept in mind by both the Courts below. For ready reference, Section 41 of the Act of 1882 is reproduced below:- 41. Transfer by ostensible owner. For ready reference, Section 41 of the Act of 1882 is reproduced below:- 41. Transfer by ostensible owner. - Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. 10. For getting an advantage of Section 41 of the Act of 1882, the foremost requirement is that the ostensible person being the person who has an exclusive right over the suit property on the given date and knowing this fact transfers the same for consideration to the transferee who in turn has taken reasonable care to ascertain that the transferor had power to make the transfer and has acted in good faith. 11. In the instant case, the evidence that has come on record on behalf of the either side clearly establishes the fact that the property was in fact jointly owned by Gopal Prasad, Bharat Prasad and Shatrudhan. Shatrudhan even on the date of filing of the civil suit was a minor. A perusal of Annexure P/4 would show that when the suit property was purchased by Gopal Prasad and the plaintiffs on 22.5.1972, the plaintiffs were minor during those days and when the sale deed dated 12.12.1985 (Annexure P/1) was executed, Shatrudhan was still a minor. In such a situation, it was the duty of defendant No. 3 to first establish the fact that there has been a partition made between the plaintiffs and defendant No. 2 and the suit property came in exclusive possession of defendant No. 2 for the purpose of selling the same. It has already been mentioned that as is required under Section 41, the appellant/defendant No. 1 ought to have taken all reasonable care to ascertain whether the suit property was in the exclusive ownership of defendant No. 2 particularly when defendant No. 2 while purchasing the suit property had purchased the property jointly in the name of the plaintiffs and defendant No. 2. Therefore, the consent of all the owners are necessary for the purpose of selling the property which is otherwise in their name. Therefore, the consent of all the owners are necessary for the purpose of selling the property which is otherwise in their name. There was no evidence whatsoever shown to establish that there was an actual partition between the plaintiffs and defendant No. 2. As regards the contention of the name of Gopal Prasad being shown in the revenue records in the year 1984, there is a categorical finding of fact that the same could have been for the reasons that the plaintiffs on those days were minor. 12. It is a clear principle that whenever a person purchases a property he has to first ensure as to how the seller has got the title and ownership over the property and if the appellant would have taken some reasonable care she would have easily come to know that the property which is said to be in the name of Gopal Prasad was in-fact jointly owned by Gopal Prasad, Bharat Prasad and Shatrudhan. Therefore, the second stage which should have been ensured was that whether there has been proper partition between the brothers and by way of partition, the said suit property or portion of the suit property has come in the name of Gopal Prasad. The appellant having not taken due care in this regard and has only on the basis of the name of Gopal Prasad have entered in the revenue records in one of the years. In the instant case, there has been no document either oral or documentary to establish that there has been some partition between Gopal Prasad, Bharat Prasad and Shatrudhan. In the instant case, there has been no document either oral or documentary to establish that there has been some partition between Gopal Prasad, Bharat Prasad and Shatrudhan. For the said given reasons in the preceding paragraphs, the question No. 1 in respect of whether the Courts have disregarded the provisions of Section 41 of the Act of 1882 is answered in the negative holding that the said provisions having not been disregarded in any respect for the reasons firstly that the appellant has failed to establish before the Court that she had taken all reasonable care to ascertain that the transferor had the power to make the transfer and secondly, the seller namely Gopal Prasad also knew fully well that since the suit property was purchased in the name of three persons unless there is a partition, Gopal Prasad alone could not have sold it nor has Gopal Prasad or for that matter the appellant has shown that there is sufficient consent given by Bharat Prasad as well as Shatrudhan i.e. the plaintiffs authorising or entrusting Gopal Prasad for selling the suit property. For the said reasons, the appellant do not get the advantage of Section 41 of the Act of 1882. 13. For the said reason, the judgment relied upon by the counsel for the appellant passed in case of Surta Singh v. Pritam Singh [AIR 1983 P & H 114] would not be of any assistance to the claim of the appellant for the reasons that in the instant case right from the time when the suit property was sold and the appellant was tried to get the property mutated in her favour, the plaintiffs who were the co-owners and co-sharers in the suit property had been objecting to the sale deed to have been executed without their consent. 14. The finding arrived at by both the Courts below get strengthen from the judgment passed by Madhya Pradesh High Court in the case of Bhagwati Prasad v. Ushadevi and others, reported in AIR 1995 MP 205 , wherein the High Court dealing with the issue has held that a purchaser of the share of the joint family property is entitled on partition of the share to which the alienator was entitled on the date of alienation and that the purchaser has no right of possession either exclusive or joint. His only right in the said property is to the extent of his share in the joint family property. 15. Similarly, the finding of the Courts below also get strengthen from the judgment of this Court passed in the case of Saduram v. Tikeshwar (dead) through LRs., reported in 2011 (3) C.G.L.J. 567 , wherein this Court dealing with the issue of Section 41 of the Act of 1882 has laid down certain conditions which are necessary for the application of Section 41. 16. As regards the second question in respect of limitation part, both the Courts below have reached to a categorical finding of fact that right from the stage of execution of the sale deed and, thereafter, when the appellant had tried to get the property mutated in her name, the plaintiffs have been objected to the proceedings and it is ultimately when the order dated 16.5.1996 was passed that gave rise to the cause of action to the plaintiffs for filing the suit and for the said date there is no dispute that the suit is within limitation and for the said reason also, both the Courts below have considered this issue and have reached to the fact that the cause of action arose only after the Naib Tehsildar had finally passed the order allowing the application of the appellant of the suit property being mutated in her favour vide order dated 16.5.1996. Therefore, as per the provisions of Limitation Act, for all practical purposes, the cause of action arose from 16.5.1996 and, therefore, subsequently, the suit having been filed on 13.11.1997, was rightly considered to be well within time and is not barred by limitation. In view of the same and the finding of fact arrived at by the two Courts below taken into consideration the sequence of events that took place from the date the sale deed was executed i.e. from 12.12.1985 till 16.9.1996 that was the date when the final order was passed by the office of Naib Tehsildar. The finding of fact arrived at by the trial Court and getting the confirmation from that of the first appellate Court is purely in accordance with law and is legal, proper and justified and does not warrant for interference. The finding of fact arrived at by the trial Court and getting the confirmation from that of the first appellate Court is purely in accordance with law and is legal, proper and justified and does not warrant for interference. For the said reasons the second substantial question of law framed on the question of limitation is also answered in the negative holding that the suit was not barred by limitation. 17. As regards the finding arrived at by both the Courts below on the question of limitation, finds force from the judgment of Hon'ble Supreme Court passed in the case of Prem Singh and others v. Birbal, reported in 2006 (5) SCC 353 . In view of the reasons mentioned above, both the substantial questions of law are decided in the negative and the instant second appeal is accordingly dismissed. No order as to costs.