JUDGMENT : Interwoven transactions have led to examine the application of Section 43 of Transfer of Property Act (for short, “T.P. Act”) with respect to a sale transaction dated 14.08.1985. 2. This appeal has arisen out of judgment in Final Decree Proceedings No.05/2003 on the file of Senior Civil Judge, Bailahongal. The background may be briefly stated as follows:- 02 acres 26 guntas of land and another small piece of land to the extent of 389 3/9 square yards in Survey No.443 of Bailahongal earlier belonged to one Channaveerappa Chanabassappa Jawali. On 01.09.1895 he leased out only 2 acres 26 guntas of land to Bailahongal Cotton Pressing Company Ltd., under a registered lease deed for 99 years. This company went into liquidation. During the liquidation process, one Shekharappa Veerupakshappa Metagud purchased the leasehold rights of the company. This lease being in force, the owner of the land, Channaveerappa Chanabassappa Jawali, sold the entire land including 389 3/9 square yards to one Raghavendra Kalamdani by executing a registered sale deed in the year 1912. On 25.05.1945, this Raghavendra Kalamdani sold this entire land to one Shivabasavayya Gadagayya Chikkmath. Challenging this sale transaction, Srinivas Kalamdani, S/o. Raghavendra Kalamdani filed a suit O.S. No. 421/1947 for partition. In this suit, his mother was defendant No.2. The Court which decided the suit, held that sale made by Raghavendra Kalamdani in favour of Shivabassayya Gadagayya Chikkmath did not bind 1/3rd interest of Srinivas Kalamdani and another 1/3rd interest of his mother. What remained to Shivabassayya Gadagayya Chikkmath was only 1/3rd interest in the entire land in Survey No.443. 3. Srinivas Kalamdani initiated Final Decree Proceedings, F.D.P.No.01/1980 in respect of his 1/3rd interest in 389 3/9 square yards which was not the subject matter of the lease. In the course of these proceedings, Srinivas Kalamdani and his mother sold away their 2/3rd interest in respect of this land to Chikkamath family. Thus, this Final Decree Proceedings came to be closed and Chikkmath became the owner of the small piece of land measuring 389 3/9 square yards. 4. Despite all the above proceedings, the possession of 02 acres 26 guntas of land remained with Metagud family on the strength of their having leasehold rights. 5. Thus, this Final Decree Proceedings came to be closed and Chikkmath became the owner of the small piece of land measuring 389 3/9 square yards. 4. Despite all the above proceedings, the possession of 02 acres 26 guntas of land remained with Metagud family on the strength of their having leasehold rights. 5. On 14.08.1985, members representing Metagud family namely respondent No.12 Mallikarjun Metagud, respondent No.13 Rajashekhara Metagud and wife of respondent No.12 sold their 1/3rd interest on the western portion of 02 acres 26 guntas of land to the appellant, who is none other than the brother of respondent No.12 by executing a registered sale deed as per Ex.R-91. Respondents 12 and 13 got measured the entire lands sold to the appellant, fixed the boundaries, constructed a compound and delivered the possession sold by them to the appellant. The appellant claims to be in possession of this 1/3rd portion. The remaining 2/3rd eastern portion continued to be in possession of respondent No.12. 6. Respondents 1 to 5, representing Chikkamath family, initiated another final decree proceedings No.5/2003, in respect of 1/3rd share that remained to their family by virtue of decree in O.S.No.421/1947. In this final decree proceedings, the Court appointed a commissioner for measuring and demarcating the land. The appellant and the respondent No.12 questioned the legality of the order of appointing the court commissioner by filing an appeal, R.A.No.34/2007. When this appeal was pending, respondent No.12 and his son i.e. respondent No.13 purchased 2/3rd interest of Kalamadani family, which was represented by respondents 6 to 11 under a registered sale deed dated 07.07.2007. It is stated that after respondents 12 and 13 purchased the interest of Kalamdani family, there was a collusion between respondent No.12 and respondents 1 to 5, which resulted in a compromise petition being filed in R.A.No.34/2007. According to this compromise petition, the western 1/3rd portion purchased by the appellant was given to the share of respondents 1 to 5 and that respondents 12 and 1 to 6 agreed that the sale deed executed on 14.08.1985 should be treated as invalid and illegal. The Appellate Court rejected this compromise and also dismissed the appeal. Challenging this order, respondent No.12 filed R.S.A. No. 5272/2010 and that the respondents 1 to 5 also filed another R.S.A. No. 5233/2010 in this court. The Appellate Court rejected this compromise and also dismissed the appeal. Challenging this order, respondent No.12 filed R.S.A. No. 5272/2010 and that the respondents 1 to 5 also filed another R.S.A. No. 5233/2010 in this court. While disposing of these appeals, this court by judgment dated 16.09.2014 accepted the compromise and directed the court to examine the intersay dispute between the appellant and his elder brother i.e. respondent No.12 in the background of the recitals found in the sale deed dated 14.08.1985. 7. The judgment of this court in the said two appeals was questioned by the appellant and the respondents before the Hon’ble Supreme Court by filing Civil Appeals No.7253-7256/2016. The Hon’ble Supreme Court, while disposing of these appeals, observed that the order passed by the High Court accepting the compromise petition, should not be given into effect against the appellant to the extent of upholding clause (2) of the compromise petition. Thus, it became clear from the order of the Hon’ble Supreme Court that clause (2) of the compromise petition nullifying the effect of sale deed dated 14.08.1985 was not accepted. While passing this order, the Supreme Court also observed that the order of the High Court accepting the compromise, except clause (2), should be given into effect by the Trial Court within three months from the date of communication of its order. 8. Again when the trial court took up final decree proceedings, F.D.P. No. 5/2003, the appellant urged that the sale deed executed in his favour on 14.08.1985 by respondents 12, 13 and the wife of respondent No.12 was an absolute sale deed for a consideration of Rs.50,000/-. It was not just a sale of the leasehold rights of respondents No.12 and 13. Although, the respondents 12 and 13 did not have ownership right to be conveyed to the appellant on 14.08.1985, when they purchased the ownership rights from respondents 6 to 11 (Kalamadani family) on 07.07.2007, the appellant would be entitled to protection of his ownership right by virtue of section 43 of T.P. Act. 9. On 15.09.2016, the learned Senior Civil Judge, Bailahongal, before whom final decree proceeding was going on, held that the appellant could not seek protection under Section 43 of the T.P. Act, because all that he purchased under Ex.R-91 was only leasehold right. 9. On 15.09.2016, the learned Senior Civil Judge, Bailahongal, before whom final decree proceeding was going on, held that the appellant could not seek protection under Section 43 of the T.P. Act, because all that he purchased under Ex.R-91 was only leasehold right. With this observation, the learned Trial Judge rejected the objection raised by the appellant in the final decree proceeding and ordered for drawing up final decree after receiving report from the Assistant Executive Engineer, PWD, Bailahongal, who was appointed as commissioner. 10. Aggrieved by this order, the appellant approached the IX Additional District Court Belagavi by filing appeal, R.A.No.250/2016. In this appeal, it was held that appellant being the younger brother of respondent No.12 had knowledge of lease. He also knew that neither respondent No.12 nor his wife nor respondent No.3 was the owner of Survey No. 443. Appellant is an advocate by profession. When respondents 12 and 13 did not have any ownership right over any portion of Survey No. 443, they had no right to sell the property under Ex.R-91 in favour of the appellant and as such, the appellant would not get better title than what his vendors had. He had only leasehold right over the property and it also extinguished after 1994. Therefore, appellant does not get benefit of Section 43 of the T.P. Act. 11. Aggrieved by the above concurrent findings of the Courts below, the appellant being the purchaser under the sale deed dated 14.08.1985, has preferred this second appeal. This appeal was admitted to examine the following substantial questions of law. (i) Whether the findings of the courts below that the present appellant has failed to establish that the transferor acted fraudulently or innocently and as such the section 43 of Transfer of Property Act, 1882 is not applicable is perverse and contrary to provision of section 43 which embodies “Rule of feeding estoppel”, as the above said section enacts that the person who makes representation shall not be heard to allege the contrary as against the person who acts thereupon and it is immaterial whether the transferor acts bonafide or fraudulently in making the representation? (ii) Whether the courts below were justified in not directing respondent No.12 to workout his rights in separate suit, as present final decree proceedings relate only to the 1/3rd share of the respondent No.1 to 5 and the question in regard to acquisition of right by the appellant herein under registered sale deed dated 14.08.1985 and the application of Transfer of Property Act, 1882 are beyond the scope of final decree proceedings? 12. The learned counsel for the appellant urged the following points for reversing the findings of the Courts below :- (a) The Supreme Court while disposing of Civil Appeals No. 7253 - 7256/2016 rightly recorded a finding that clause (2) of the compromise petition virtually nullifying the sale deed of the appellant should not be given into effect. But the Trial Court examined the validity of the sale deed dated 14.08.1985 to record a finding that appellant was not entitled to the benefit under Section 43 of the T.P. Act. This finding was confirmed by appeal in R.A. No. 250/2016. These findings of the Courts are beyond the scope of the enquiry in Final Decree Proceedings. When the sale deed dated 14.08.1985 was not challenged by transferors seeking declaration to the effect, the Trial Court should not have held that sale deed dated 14.08.1985 did not transfer the ownership rights and that the appellant at best only obtained leasehold rights. (b) He further argued with regard to Section 43 of the T.P. Act that both the courts proceeded to find out whether appellant is entitled to protection under Section 43 of the T.P. Act instead of giving finding on the point whether respondents 12 and 13 having executed sale deed in favour of the appellant, could deny the title of appellant. Very approach adopted by the Trial Court and the First Appellate Court is contrary to the rule of feeding the grant by estoppel. Sale deed, Ex.R-91, contains recital that what was sold was absolute ownership (xxx).So, it was his argument that when the recitals of the sale deed make it very clear that respondents 12, his wife and respondent No.13 sold the absolute ownership of western side of the property to the extent of his 1/3rd interest, the appellant gets protection under Section 43 of the T.P. Act by virtue of respondents 12 and 13 purchasing 2/3rd interest of Kalamdani family. Therefore according to him, this appeal needs to be allowed. In support of his arguments, he placed reliance on the following judgments of the Supreme Court. 1. Hardev Singh V/s. Gurumail Singh (dead) by LRs [2002 (2) SCC 404] 2. The Jumma Masjid Mercara v. Kodimaniandra Deviah ( AIR 1962 SC 847 ) 13. The learned counsel for the respondents 1 to 5 argued that the lease period expired on 30.08.1994 and therefore the lessees were supposed to hand over the possession of the leased property to Kalamdani family. Lessees knew that they were not the owners. Before drawing up final decree, the appellant and the respondent 12 preferred an appeal, R.A. No.34/2007, where compromise petition was filed. Ultimately, when the matter went up to Supreme Court, entire compromise was not set at naught. The Hon’ble Supreme Court made it very clear that clause (2) of the compromise petition should not be given into effect. This makes it clear that the validity of the sale deed should be decided. She further argued that the appellant had in fact filed a suit O.S.No.61/2012 for declaration of his title on the basis of sale deed dated 14.08.1985. The High Court, while disposing of R.S.A. No. 5272/2010 and R.S.A. No. 5273/2010 and two cross appeals i.e. R.S.A.Crob. No.100010/2014 and R.S.A.Crob. No.100011/2014, a clear observation was made that the compromise entered into between Mallikarjun Metagud and Chikkamath family be accepted and that right of Ashok Metagud i.e. the appellant be considered based on the right of Mallikarjun i.e. respondent No.12. It was also held by this court in the said R.S.A.s that the appellant, Ashok Metagud, cannot maintain two parallel proceedings. If he intends to participate in the final decree proceedings, he has to withdraw the suit filed by him, or else, he can independently prosecute his right against Mallikarjun Metagud in the suit which is pending. This was the reason for the appellant withdrawing the suit and this necessitated the Trial Court to consider the effect of validity of sale deed, besides accepting the rest of the clauses of the compromise petition as per the directions of the Hon’ble Supreme Court in the Civil Appeals. Thus, the Trial Court has not committed any error in law. She further argued that appellant knew that his brother, his brother’s son i.e., respondent No.13, and his brother’s wife had only leasehold rights. Thus, the Trial Court has not committed any error in law. She further argued that appellant knew that his brother, his brother’s son i.e., respondent No.13, and his brother’s wife had only leasehold rights. If at all there was any transfer by virtue of sale deed dated 14.08.1985, it was only a transfer of leasehold rights and nothing more. Appellant is not a stranger to say that respondents 12 and 13 misrepresented to him with regard to their rights. If Section 43 of the T.P. Act has to be applied, there must be erroneous misrepresentation about the title of the transferors and that the transferee must have acted upon such misrepresentation. Section 43 of the T.P. Act does not cover the transactions where the purchaser knows very well that the vendor does not have title. She further highlighted that pursuant to Ex.R-91, entries in the suit survey records were made to the extent of leasehold rights. No changes were effected in the ownership column. Therefore, all these facts lead to an inference that Ex.R-91 is just a transfer of leasehold rights and thereby protection under Section 43 of the T.P. Act is not available to the appellant. In support of her arguments, the learned counsel has placed reliance on following three rulings: 1. Jumma Masjid Mercara v. Kodimaniandra Deviah ( AIR 1962 SC 847 ) 2. N. Srinivas Rao v. Special Court under A.P. Land Grabbing (Prohibition) Act and others ( AIR 2006 SC 3691 ) 3. Jharu Ram Roy v. Kamjit Roy and others [2009 SAR (Civil) 313] 14. The learned counsel for respondent No.13 also argued that on 14.08.1985 the appellant and respondents 12 and 13 were enjoying the property as lessees. The appellant was aware of the rights possessed by them. In fact, appellant, during his cross-examination in the Trial Court, admitted the extent of the right possessed by his vendor. Parties understood very well that the transaction was in respect of lease only. Even in the sale deed dated 14.08.1985 it is recited that the vendors had become owners by adverse possession. This recital, shows that appellant was aware of limited right of lease possessed by respondents 12 and 13. Since there was only transfer of leasehold rights, appellant cannot claim absolute ownership and therefore Section 43 of the T.P. Act is not applicable to the present set of circumstances. This recital, shows that appellant was aware of limited right of lease possessed by respondents 12 and 13. Since there was only transfer of leasehold rights, appellant cannot claim absolute ownership and therefore Section 43 of the T.P. Act is not applicable to the present set of circumstances. The learned counsel referred to the following two authorities: 1. Jumma Masjid Mercaraa v. Kodimaniandra Deviah ( AIR 1962 SC 847 ) 2. Ram Pyare v. Ram Narain and others ( AIR 1985 SC 694 ) 15. My finding to the substantial question of law are as follows :- POINTNo.1: 16. On considering the arguments advanced by the learned counsel for the appellant what can be gathered is that, for applicability of the Section 43 of the T.P. Act, the conduct of the transferor is immaterial even though he misrepresents to the transferee. The moment the transferee comes to know that his transferor has acquired good title that he did not have at the time of transfer, the transferee can seek protection under Section 43 of the T.P. Act. This argument at the same time gives rise to another point as to what is the position of the transferee, if he had the knowledge that his transferor did not have transferable interest. 17. Analysation of Section 43 of the T.P. Act gives a picture that when the transfer of immovable property takes place, the transferor should not have transferable interest. Yet he transfers the property fraudulently or erroneously making a representation that he has a transferable interest, and, if any time in future, the transferor acquires interest in the property, the transferor is estopped from taking a contrary stand against the interest of transferee who acted on that misrepresentation. In other words, this section protects the interest of transferee if he has been misled by the transferor in the guise of having a transferable interest. The only condition for seeking protection under Section 43 of the T.P. Act is contract between transferor and transferee must be in subsistence during the time when the former acquires the interest. But transferee cannot take protection under Section 43 of the T.P. Act if he enters into transaction knowing fully well that the transferor had no right or any kind of interest. 18. But transferee cannot take protection under Section 43 of the T.P. Act if he enters into transaction knowing fully well that the transferor had no right or any kind of interest. 18. The Supreme Court in the case of Jumma Masjid (Supra), in the first instance makes a distinction between section 6 and 43 of the T.P. Act. While holding that Section 6(a) of the T.P. Act prohibits transfer of certain kinds of interest, it has been held with reference to Section 43 of the T.P. Act that it deals with representations as to title made by a transferor who did not have title at the time of transfer and provides that the transfer shall fasten itself on the title which the transferor subsequently acquires. The Hon’ble Supreme Court proceeded to hold further that it is only material to find out whether in fact the transferee has been misled. Para 18 of the said judgment is extracted as below :- “This reasoning is open to the criticism that it ignores the principle underlying s.43. That section embodies, as already stated, a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevant words of s. 43 were, “where a person erroneously represents”, and now, as amended by Act 20 of 1929, they are “where a person fraudulently or erroneously represents”, and that emphasises that for the purpose of the section it matters not whether the transferor acts fraudulently or innocently in making the representation, and that what is material is that he did make representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application, and the transfer will fail under s.6(a). Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application, and the transfer will fail under s.6(a). But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in s.43, however fraudulent the act of the transferor might have been.” (underlining by me) 19. Thus from the above judgment it is clear that if the transferee knows that the transferor did not possess the title at the time of transfer, the transferee cannot be said to have acted on it while taking a transfer. Section 43 of the T.P. Act will have no application and the transfer has to fail. 20. On behalf of the appellant, reliance was placed on another judgment of the Hon’ble Supreme Court in the case of Hardev Singh v. Gurumail Singh (Dead) by LRs [ 2007 (2) SCC 404 ]. The facts in this case are that one Haracharan Singh transferred some properties in favour of his wife Udham Kaur in lieu of her maintenance pursuant to compromise entered between them. The wife claimed absolute interest by virtue of Section 14 (1) of the Hindu Succession Act and she filed a suit to that effect. The Trial Court dismissed the suit, but the Appellate Court held that she had become absolute owner. During the pendency of this suit, the husband Haracharan Singh sold the land to one Gurumail Sing on 17.03.1982. The wife filed another suit challenging this sale stating that the transfer was hit by lis pendence. She died during the pendency of the second suit. Consequently properties devolved equally upon her husband and her son. In this background, protection under Section 41 and 43 of the T.P. Act was sought by the purchaser but at the same time son Hardev Singh claimed right on the basis of will executed by his mother. In these set of circumstances, the Hon’ble Supreme Court held that the principle of feeding the grant by estoppel could be urged only against Haracharan Singh, the seller, and not against the appellant who failed to prove the Will. Therefore the entire appeal was dismissed. In these set of circumstances, the Hon’ble Supreme Court held that the principle of feeding the grant by estoppel could be urged only against Haracharan Singh, the seller, and not against the appellant who failed to prove the Will. Therefore the entire appeal was dismissed. These facts make it very clear that at the time when Haracharan Singh sold the property, the purchaser Gurumail Sing did not know that his seller was not the absolute owner and it was the seller who might have represented that he had a transferable title. After death of wife, Udham Kaur, Haracharan Singh became entitled to half share in the property and for this reason it was held by the Hon’ble Supreme Court that subsequent acquisition of title by Haracharan Singh fed the title that he did not have at the time of transfer and gave protection to the purchaser under Section 43 of the T.P. Act. 21. The counsel for respondents 1 to 5 has referred to a judgment of the Hon’ble Supreme Court in the case of Jharu Rama Roy v. Kamajit Roy and others [2009 SAR (Civil) 313] in support of her arguments that the appellant cannot take shelter under Section 43 of the T.P. Act. The facts of this case disclose that at the time of execution of the sale deed, vendor’s father was alive. Even though the purchaser was very much aware of this, in the sale deed it was mentioned that the father had expired. The parties were governed by Dayabhaga School of Hindu Law. The vendor entered into transaction when his father was alive and therefore, he did not have any right to execute the sale deed and consequently, the purchaser who knew that the father was very much alive at the time of execution of the sale deed could not claim protection under Section 43 of the T.P. Act. This ruling makes it very clear that if the transferee is aware of the fact that the transferor had no transferable interest on the date of transfer, he cannot put forward Section 43 of the T.P. Act for protecting his interest. 22. The learned counsel for respondent No.13 has relied on another judgment of the Supreme Court in the case of Ram Pyare v. Rama Narain and others ( AIR 1985 SC 694 ). 22. The learned counsel for respondent No.13 has relied on another judgment of the Supreme Court in the case of Ram Pyare v. Rama Narain and others ( AIR 1985 SC 694 ). In this judgment, the Hon’ble Supreme Court has clearly observed in para No.4 as follows :- “It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevant words of s. 43 were, "where a person erroneously represents" and now, as amended by Act 20 of 1929, they are "where a person fraudulently or erroneously represents", and that emphasises that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. S. 43 would then have no application and the transfer will fail under s. 6 (a). But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in S. 43, however, fraudulent the act of the transferor might have been.” (underlining by me) 23. In the background of the principles laid down by the Hon’ble Supreme Court in the above decisions, it has to be examined whether the appellant’s interest under Section 43 of the T.P. Act is protected. The appellant says to have acquired the ownership rights under the sale deed dated 14.08.1985 as per Ex.R-91. It was within the knowledge of the appellant and his transferors who are none other than his brother, sister-in-law and brother’s son, that they were all in possession of the suit property only as lessees. The appellant may say that under Ex.R-91 he has acquired ownership rights. If he wants to say that he had acquired ownership rights, it should be his case that he was misled by his transferors erroneously or fraudulently that they had ownership rights to be conveyed to him. The appellant may say that under Ex.R-91 he has acquired ownership rights. If he wants to say that he had acquired ownership rights, it should be his case that he was misled by his transferors erroneously or fraudulently that they had ownership rights to be conveyed to him. At this juncture, it may be relevant to refer to some of the answers given by R.W.1 in the cross-examination. He clearly admits the suggestions that the lease period came to an end on 31.08.1994, that after the death of his father, he and his brother, Mallikarjun, had only leasehold rights, that they continued to be in possession of the suit property on leasehold rights only. It is his another clear answer that on 14.08.1995, he knew very well that his brother, Mallikarjun, did not have ownership right. It can be further said that the transaction speaks very well that this appellant and his brother succeeded to the leasehold rights that they had on the suit property. The appellant is an advocate. Therefore, he must be aware of the nature of right they had over the suit property. Even if Ex.R-91 is perused, in the beginning of the sale deed itself, it is clearly written as leasehold (xxx) rights existing on a land at Bailahongal. Pursuant to Ex.R-91, there came to be some changes in the revenue records which have been produced under Ex.P-7 (consisting of 26 sheets of property register extracts.) In this property register extract, there is an entry dated 29.08.1985 showing the transaction as deed of purchase of leasehold rights (xxx). The names of lease holders are written as Mallikarjun and Ashok, and further it is written there that the entry with regard to the western side of the property should stand in the name of Ashok G. Metagud i.e. the appellant. So these revenue entries make it very clear that the sale deed as per Ex.R-91 was nothing but sale of leasehold rights, which was with respondent No.12. Actually, both the appellant and respondent No.12 had leasehold rights and because of execution of Ex.R-91, the respondent No.12 sold his 1/3rd interest in favour of his brother. If, according to the appellant, these entries were incorrectly made, he should have challenged the same before the appropriate authority. But he did not take any action. Actually, both the appellant and respondent No.12 had leasehold rights and because of execution of Ex.R-91, the respondent No.12 sold his 1/3rd interest in favour of his brother. If, according to the appellant, these entries were incorrectly made, he should have challenged the same before the appropriate authority. But he did not take any action. The Trial Court and the I Appellate Court have taken note of these aspects of the matter to arrive at a conclusion that what the appellant purchased was only leasehold rights. Therefore, if the appellant’s right is examined in the light of aforesaid principles of law, it has to be stated that he cannot claim protection under Section 43 of the T.P. Act to assert that what was transferred to him under Ex.R-91 was absolute ownership and title in respect of western side of suit property, more so, when he had the knowledge that his brother and brother’s wife and son did not have ownership rights to be conveyed to him. Both the Courts below have correctly applied the law to deny the benefit of Section 43 of T.P. Act to the appellant. Therefore, this point is answered in negative. POINT NO.2: 24. On this point, the argument of the appellant’s counsel is that the trial Court has exceeded its jurisdiction in final decree proceedings. His argument in final decree proceedings was initiated by respondents No.1 to 5 in respect of their 1/3rd share. While dealing this aspect, the trial Court adjudicated the title instead of directing the respondent No.12 to workout his remedy in a separate suit. 25. The argument of the learned counsel is difficult to be accepted. The necessity to examine applicability of Section 43 of T.P. Act arose because respondents No.12 and 13 purchased 2/3rd interest of Kalamdani family on 07.07.2007 while R.A.No.34/2007 was pending. The appellant was also a party in final decree proceedings, but the compromise between respondents 12 and 13 and respondents No. 1 to 5 was reported excluding the appellant. As the appellant objected to the acceptance of compromise, it was not accepted and it is not necessary to repeat all further developments as those details are already narrated. The appellant was also a party in final decree proceedings, but the compromise between respondents 12 and 13 and respondents No. 1 to 5 was reported excluding the appellant. As the appellant objected to the acceptance of compromise, it was not accepted and it is not necessary to repeat all further developments as those details are already narrated. Suffice it to say that when the Hon’ble Supreme Court, in Civil Appeals No.7253 – 7256/2016 observed that acceptance of compromise by the High Court should not be given into effect with respect to its clause (2) and that the rest of these clauses of the compromise be given into effect within three months. Added to this, in R.S.A.No.5272/2010 and its connected appeals and cross objections, this Court had observed that these disputes between the appellant and his elder brother be decided in the background of recitals found in sale deed dated 14.08.1985. The net effect of all these orders is that the trial Court could not have given the accepted terms of compromise into effect unless the right of appellant was decided. The reason is very obvious in that appellant was already in possession of western side of property by virtue of sale deed dated 14.08.1985 and the compromise provided that ‘Chickmath’ family had to be allotted the western side property. The objection of the appellant for implementation of compromise had to be decided. It has to be stated that the contention raised by the appellant seeking benefit under Section 43 of T.P. Act arose incidentally and the trial Court had to decide it, to put an end to a litigation that commenced in the year 1947. A separate suit to examine the right asserted by appellant may be maintainable; at the same time the trial court is not without power to remove any obstacle that came in the way, or decide an issue arising incidentally, for drawing up final decree in a partition suit. Therefore, in my opinion, the incidental question that rose was rightly decided by the trial Court and the First Appellate Court has also rightly confirmed it. This question can be seen from another angle on an assumption that the appellant’s right to seek benefit under Section 43 of T.P. Act is well founded. Therefore, in my opinion, the incidental question that rose was rightly decided by the trial Court and the First Appellate Court has also rightly confirmed it. This question can be seen from another angle on an assumption that the appellant’s right to seek benefit under Section 43 of T.P. Act is well founded. In that event any share that could be allotted to appellant was only from out of 2/3rd interest purchased by respondents No.12 and 13. The Chickmath’s cannot be eliminated from the picture. This exercise should be undertaken by the trial Court in final decree proceedings only. Therefore, it stands to no reason to say that the trial court gets no jurisdiction to examine the applicability of Section 43 of T.P. Act. 26. The courts below are justified in deciding issue with regard to appellant’s rights under registered sale deed dated 14.08.1985. The ends of justice will not be met if the questions arising incidentally are not decided by the courts in a proceeding pending before it. Therefore, from the discussion on point No.1 and 2, I come to the conclusion that appeal should fail. Accordingly, appeal is dismissed with costs.