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2013 DIGILAW 819 (GAU)

Baby Rani Deb v. Manik Dey

2013-11-21

BROJENDRA PRASAD KATAKEY

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JUDGMENT Brojendra Prasad Katakey, J. 1. This appeal by the plaintiffs is directed against the judgment and decree dated 26.03.2003 passed by the learned Civil Judge (Sr. Division), Nagaon, in Title Appeal No. 40/2001, dismissing the appeal of the plaintiffs by affirming the judgment and decree dated 28.09.2001 passed by the learned Civil Judge (Jr. Division), Hojai at Sankardev Nagar, in Title Suit No. 32/1992, whereby and whereunder the suit filed by the present appellants as plaintiffs has been dismissed. The predecessor-in-interest of the present appellants, namely, Benu Mohan Deb, instituted the suit praying for declaration of his right, title and interest and confirmation of possession and permanent injunction, over a plot of land measuring 1 katha, described in schedule to the plaint, contending inter alia that he had purchased the said land from Brojendra Ch. Dey, predecessor-in-interest of the defendants, by a registered deed of sale dated 06.03.1963 (Ext.-1) and since then he has been possessing the land by constructing house and residing there by paying taxes and revenues. It has also been pleaded that the defendants initially on 20.12.1991 and thereafter on 28.02.1992 trespassed into the land and the house of the plaintiff, assaulted his wife and daughters, removed boundary pillar from the northeast boundary of the suit land, which necessitated filing of the suit as noticed above. 2. The defendants contested the suit by filing joint written statement denying the claim of the plaintiff and contending inter alia that the predecessor-in-interest of the defendants never sold the land, who had no right to do so, the suit land being inherited property of the defendant Nos. 1 and 2, the wives of Brojendra, the alleged vendor of the plaintiff. The defendants have also pleaded that the plaintiff was the permissible occupier with condition that as and when he is asked to vacate the land, the same would be vacated, who, however, despite the demand raised by the defendants refused to vacate the suit land. 3. Based on the pleadings of the parties, the Trial Court framed the following issues for determination:- (i) Is there any cause of action for the suit? (ii) Whether the suit is maintainable? (iii) Whether the suit is properly valued and proper court fee has been paid? (iv) Whether the plaintiff has right, title and possession over the suit land? (v) Whether the plaintiff is entitled for a decree as prayed for? (ii) Whether the suit is maintainable? (iii) Whether the suit is properly valued and proper court fee has been paid? (iv) Whether the plaintiff has right, title and possession over the suit land? (v) Whether the plaintiff is entitled for a decree as prayed for? (vi) To what relief, if any, the parties are entitled? Additional Issues: (i) Whether the plaintiff has acquired possessory right owned the suit land on the strength of the registered sale deed No. 1323 dated 6.3.63 in his favour by one Brojendra Ch. Dey? (ii) Whether the plaintiff is a permissible occupier/licencee under the defendants over the suit land? 4. The Trial Court upon appreciation of the evidence on record has dismissed the suit by holding that since Brojendra had no right, title and interest over the suit land, he could not transfer the same and hence by sale dated 06.03.1963 (Ext.-1), the plaintiff would not acquire any right, title and interest, the land being the inherited property of the defendant Nos. 1 and 2. Being aggrieved, the plaintiff filed the aforesaid appeal, which has also been dismissed by affirming the judgment and decree passed by the Trial Court. Hence the present appeal. 5. This appeal was admitted for hearing vide order dated 09.09.2003 on the following substantial questions of law:- (i) Whether the learned lower appellate Court erred in law in rejecting the Ext.-1, the sale deed, dated 6.3.1963, holding that the same cannot confer a valid title on the plaintiff? (ii) Whether the doctrine of licence/permissive occupation is applicable in respect of an annual patta land, which is liable to be cancelled for transfer of possession? 6. I have heard Mr. K.K. Mahanta, learned Sr. counsel for the appellants/plaintiffs and Mr. A.D. Choudhury, learned counsel for the respondents/defendants. 7. Mr. Mahanta, the learned Sr. counsel appearing for the appellants, referring to the contents of the Ext.-1 sale deed dated 06.03.1963 and also the evidence led by the parties, more particularly that of the DW-1 (who is the defendant No. 3 in the suit) has submitted that it is apparent therefrom that Brojendra, husband of the defendant Nos. 7. Mr. Mahanta, the learned Sr. counsel appearing for the appellants, referring to the contents of the Ext.-1 sale deed dated 06.03.1963 and also the evidence led by the parties, more particularly that of the DW-1 (who is the defendant No. 3 in the suit) has submitted that it is apparent therefrom that Brojendra, husband of the defendant Nos. 1 and 2, who got the property by inheritance from their father, was in complete control of the suit land, manage the same and represented as the owner of the land and the plaintiff having purchased the same by making necessary enquiry relating to the ownership of the land and also the authority of Brojendra to transfer the land, such transfer is valid, in view of the provisions contained in Section 41 of the Transfer of Property Act (in short the Act). It has also been submitted that it is apparent from the evidence of DW-1 that the wives of Brojendra, namely, the defendant Nos. 1 and 2, knew about the transfer by Brojendra in favour of the plaintiff, who never from 1963 to 1991 raised any objection relating to the possession of the plaintiff over the suit land and for the first time on 20.12.1991 tried to disturb the possession by making an attempt to occupy a part of the suit land. The learned Sr. counsel submits that even though there is no specific pleadings in the plaint claiming right by virtue of the transfer by the ostensible owner, since there is basis on such evidence led i.e. the pleadings relating to the purchase of the land vide sale deed dated 06.03.1963, the Courts below ought not to have dismissed the suit of the plaintiff. The learned Sr. counsel submits that since the plaintiff could prove all the four ingredients to constitute a valid transfer by the ostensible owner, the plaintiff's suit needs to be decreed. The learned Sr. counsel in support of his contention has placed reliance on a decision of the Apex Court in Hardev Singh v. Gurmail Singh reported in (2007) 2 SCC 404 . 8. Mr. The learned Sr. counsel in support of his contention has placed reliance on a decision of the Apex Court in Hardev Singh v. Gurmail Singh reported in (2007) 2 SCC 404 . 8. Mr. Choudhury, the learned counsel appearing for the respondents, on the other hand, supporting the judgments and decrees passed by the Courts below, has submitted that though Order 6 Rule 2 CPC requires pleading of material facts and particulars, no facts relating to the claim of title by transfer by the ostensible owner has been pleaded and hence no amount of evidence led by the parties on that point can be read. The learned counsel, therefore, submits that the appellants cannot claim that they have acquired right, title and interest by virtue of Section 41 of the Act. It has also been submitted that the appellants even did not lead any evidence to demonstrate that they have taken reasonable care to ascertain that the transferor had the power to make the transfer, though to constitute a valid transfer by the ostensible owner under Section 41 of the Act, apart from other conditions, the said condition must be fulfilled. The learned in support of the contention has placed reliance on a judgment of the Apex Court in Anathula Sudhakar v. P. Buchi Reddy & ors. reported in (2008)4 SCC 594 . 9. I have considered the submissions advanced by the learned counsel for the parties and also perused the judgments and decrees passed by both the Courts below. I have also perused the evidence adduced by the parties, though is not required to do so, unless of course perversity is pleaded. 10. The predecessor-in-interest of the present appellants as plaintiff instituted the said suit claiming right, title and interest in respect of 1 katha of land pleading that he has acquired the title by virtue of transfer by Brojendra vide sale deed dated 06.03.1963. The plaintiff did not plead that the sale by Brojendra is valid as he is the ostensible owner, within the meaning of Section 41 of the Act. 11. The plaintiff did not plead that the sale by Brojendra is valid as he is the ostensible owner, within the meaning of Section 41 of the Act. 11. Section 41 of the said Act provides that 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 authorized to make it, provided the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. 4(four) conditions, therefore, are required to be pleaded and proved to constitute a valid transfer by ostensible owner, namely, (i) that the transferor is the ostensible owner, (ii) that he is so by the consent, express or implied, of the real owner, (iii) that the transfer is for consideration and (iv) that the transferee has acted in good faith and he took reasonable care to ascertain that the transferor had power to transfer [Hardev Singh (supra)]. In the absence of any of the said 4(four) conditions, the transferee cannot claim right by virtue of Section 41 of the Act. 12. Order 6 Rule 2(1) CPC provides that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. It is a settled position of law that no amount of evidence led by the parties can be read in the absence of the relevant pleadings either in the plaint or in the written statement. 13. In the instant case, as discussed above, the plaintiff claims the right, title and interest contending that as Brojendra, who had the title, has transferred the land in favour of the plaintiff by a sale deed dated 06.03.1963, he has acquired the right, title and interest. There is absolutely no pleading, not even a whisper, that Brojendra was ostensible owner; that he is so by consent, express or implied, of the real owner; and that the plaintiff has acted in good faith, taking reasonable care to ascertain that Brojendra had power to transfer, so as to get the benefit of Section 41 of the Act. There is absolutely no pleading, not even a whisper, that Brojendra was ostensible owner; that he is so by consent, express or implied, of the real owner; and that the plaintiff has acted in good faith, taking reasonable care to ascertain that Brojendra had power to transfer, so as to get the benefit of Section 41 of the Act. In the absence of the pleadings no amount of evidence, even if available on record, can be read, while deciding the suit or the appeal. 14. It also appears from the evidence led by the plaintiff, who has been examined as PW-1 that in his deposition he did not claim that he is entitled to the benefit of Section 41 of the Act. His consistent stand is that Brojendra had the title, who has transferred the land by executing the sale deed dated 06.03.1963 and hence he acquired the right, title and interest over the suit land. It also appears from the evidence of DW-1, during cross-examination by the plaintiff, that in the revenue record the name of Brojendra has not been recorded but the name of the grand father of the defendant Nos. 1 and 2 was recorded at the time when the sale deed dated 06.03.1963 was executed. In Ext.-1 sale deed dated 06.03.1963 Brojendra also claims to be the real owner and not the ostensible owner. It, therefore, appears that the plaintiff did not take reasonable care to ascertain that Brojendra had power to transfer. 15. The Apex Court in Anathula Sudhakar(supra) has held that to succeed in a suit by the plaintiff for declaration of right, title and interest over a plot of land in the aid of Section 41 of the Act, it must be pleaded that the transferor is the ostensible owner of the property with express or implied consent of the real owner, that the transferee after taking reasonable care to ascertain that the transferor had the power to make the transfer, had acted in good faith in purchasing the property for valid consideration and that the transfer in favour of the transferee by the transferor was not voidable. The Apex Court further opined that in absence of the pleadings to that effect there is no question of looking into the evidence led by the parties on the question of transfer by the ostensible owner. 16. The Apex Court further opined that in absence of the pleadings to that effect there is no question of looking into the evidence led by the parties on the question of transfer by the ostensible owner. 16. It is also evident from the judgments and decrees passed by the Courts below that the plaintiff was found to be the permissive occupier of the land. Such concurrent finding of fact cannot be disturbed in second appeal, in the absence of demonstration of any perversity in recording such finding. Permissive possession in respect of the annual patta land is also permissible, which, however, would be till the annual patta is cancelled, under the provisions of Assam Land and Revenue Regulation, by initiating non-renewal proceeding, as without such proceeding annual patta cannot be cancelled. 17. In view of the aforesaid discussion, I do not find any merit in the appeal and hence the appeal stands dismissed. The parties are directed to bear their own cost throughout. The Registry is directed to send down the records forthwith. Appeal dismissed