Mst. Hamjarun Nessa vs Mst. Warichun Nessa

Mr. S. Talapatra, J. - These appeals being RSA No. 19 of 2013 [Mst. Hamjarun Nessa & 4 others v. Mst. Warichun Nessa] and RSA No. 20 of 2013 [Mst. Hamjarun Nessa & 4 others v. Md. Sayed Ali] are taken up together as these appeals filed under Section 100 of the CPC arise from the common judgment dated 07.02.2013 delivered in Title Appeal No. 11 of 2012 and Title Appeal No. 12 of 2012 by the District Judge, North Tripura, Kailashahar, as then he was. That apart, these appeals are admitted on the identical substantial question of law as noted below by the order dated 10.06.2013:

"Absence of finding on the face of the specific denial, as to whether Subhash Chandra Dhar had any competence to transfer the land by way of Exbt.1, sale deed in favour of the plaintiff respondent the impugned judgment has been rendered perverse in the eye of law?"

The minimal essential fact as required for appreciating the said substantial question may be noticed at the outset:

The plaintiff-respondent, namely Mst. Warichun Nessa instituted a suit against the appellants being Title Suit No. 41 of 2010 [related to RSA No. 19 of 2013] for declaration and recovery Yes No ? of possession of the suit land as described in the schedule appended to the plaint. The title of the suit land, according to the plaintiff-respondent, devolved to her by virtue of the sale deed under No. 1-1843 dated 07.07.1983 on the day of the execution. The plaintiff-respondent was delivered with the physical possession of the suit land. She started possessing the suit land by growing paddy year after year. The record of rights was duly mutated and a new Khatian No. 471 was created on 27.08.1988. The plaintiff-respondent was in active possession. On 20.07.2007, the appellants had attempted to dispossess the plaintiff-respondent from the suit land. On the face of such aggravation, the plaintiff-respondent filed a suit for declaration of right, title and interest and also for perpetual injunction on 20.05.2007 being Title Suit No. 24 of 2007. Later on, the suit was withdrawn on 21.08.2009 on the basis of a compromise struck on 15.05.2009 with liberty to file afresh on condition of payment of Rs. 500/- (Rupees Five hundred) to be paid to the defendants of that suit. On 02.08.2010 the defendant-appellants dispossessed the plaintiff-respondent from the suit land and hence, the suit being Title Suit No. 41 of 2010 was instituted by the plaintiff-respondent.

The defendant-appellants filed the written Statement on 26.02.2011 and denied the allegations of dispossession by stating that the story of dispossession has been fabricated to suit the purpose as the defendant-appellants were in possession since long as the legal heirs of Furkan Ullah and his brother namely, Rahaman Ullah who died without any direct descendants. Furkan Ullah and his brother Rahaman Ullah on the strength of registered Kabala No. 734/1357 T.E. dated 24.11.1357 T.E and the registered Kabala No. 272/1357 T.E. dated 17.07.1357 T.E were the owners in possession till their death and thereafter, the defendant-appellants have become the owners in possession. The trial court framed the following issues for purpose of adjudicating the suit:

"(i) Is the suit of the plaintiff maintainable in its present form?

(ii) Is the suit of the plaintiff is barred by law of limitation?

(iii) Whether the plaintiff is entitled get decrees of declaration of jote right, title and interest in the suit land? If so, whether the plaintiffs is entitled to get recovery of possession of the suit land?

(iv) Any other relief/reliefs."

On recording the evidence, the trial court decreed the suit in pursuance to the common judgment dated 25.06.2012 delivered in Title Suit No. 41 of 2010 and the other Title Suit No. 42 of 2010 by observing that:

"22. As the titles of the plaintiffs are found over the suit properties as discussed above, now, the next question which comes for consideration is as to whether the question of possession and dispossession is true. There is no dispute to the parties that at present the defendants are in possession over the suit lands. Plaintiffs'' case is that they had been in possession of the suit lands but on 02.08.2010 defendants illegally dispossessed them from there. Khatiyans Ext.2 and Ext.9 clearly shows that the suit lands are being recorded in the record of rights in the names plaintiffs of T.S. 41/2010 and the predecessor of the plaintiffs of T.S. 42/2010 respectively. It is settled law that entries made in the revenue records takes presumption of possession of the party. Section 43(3) of the TLR & LR Act, 1960 also enacts that every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct. P.Ws.-1,3 and 4 all broadly in one tune have deposed that plaintiffs had been in possession over the suit lands but defendants dispossessed them on 02.08.2010 illegally. Defendants could bring no contrary convincingly to the record of rights (Exts.2 and 9). Therefore, it can be presumed that plaintiffs had been in possession over the suit lands and this presumption is well corroborated by the oral evidence of P.Ws.-1, 3 and 4. Facts remain that at present the defendants are in possession of the suit lands. Thus, it can be taken that the defendants dispossessed the plaintiffs from the suit lands on 02.08.2010. Be that what it may, since the plaintiffs have proved their titles over the suit lands, the plaintiffs have no longer in need to prove that they were in possession as the defendants have not established their title or of adverse possession etc. In the case reported in AIR 1976 Madras 124, Bhagavathy Pillai and another v. Savarimathu and another, it was held �''In the case of a suit for possession based on title, the plaintiff has no longer to prove that he was in possession of the property for a period of 12 years. It is for the defendant to establish that his possession has been adverse for the requisite period of 12 years. In the instant case as the defendants have not established their case of adverse possession, the plaintiffs having proved title to the property are entitled to the possession thereof, so long as the defence has not been established the plea of adverse possession.

As a result of the above discussions, this court is of considered view that the plaintiffs are entitled to a decree for declaration of their right, title and interest over their respective suit lands and also entitled to recover their respective suit lands from the possession of the defendants. Resultantly, this issue is also decided in favour of the plaintiffs."

As it is noticed that another suit being Title Suit No. 42 of 2010 was also decreed by the said common judgment dated 25.06.2012 by the trial court, it would be appropriate to make reference to the said title suit as the said title suit is related to RSA No. 20 of 2013. The said title suit was instituted originally by Mst. Jaribun Nessa, the predecessor of the plaintiff-respondents in RSA No. 20 of 2013, as after instituting the suit Mst. Jaribun Nessa died on 24.11.2010. As the legal heirs, the plaintiff-respondents were substituted by the order dated 05.01.2011. The predecessor of the plaintiff-respondents of RSA No. 20 of 2013 instituted the suit for declaration of right, title, interest and recovery of possession of the suit land as shown in the schedule of the land appended to the plaint. The facts are exactly identical that earlier the defendant-appellants made an attempt to dispossess the original plaintiff from the suit land on 29.07.2007. Out of apprehension, a suit was instituted by her being Title Suit No. 25 of 2007 which was withdrawn on 27.10.2009 with liberty to file afresh on the basis of the compromise struck between the original plaintiff and the defendant-appellants on 15.05.2009 but the defendant-appellants forcefully entered into the suit land and continued the possession. Thereafter, the instant suit was instituted. As stated earlier, the suit being Title Suit No. 41 of 2010 was decreed. The trial court in the analogous proceeding, framed common set of issues as reproduced hereinabove and thereafter, decreed the suit in pursuance to the said common judgment dated 25.06.2012. The defendant-appellants being aggrieved thereof, filed 2(two) appeals being Title Appeal No. 11 and 2012 and Title Appeal No. 12 of 2012 against the said common judgment in the court of the District Judge, North Tripura, Kailashahar. Title Appeal No. 11 of 2012 is related to RSA No. 19 of 2013 whereas Title Appeal No. 12 of 2012 is related to RSA No. 20 of 2013. However, both the first appeals were dismissed by the common judgment dated 07.02.2011 observing that:

"From evaluation and consideration of the evidences as produced by the parties in both the cases, it is found that the plaintiff-respondent acquired right, title, interest over the suit property by purchasing the suit land from Subhas Ch. Dhar long back in the year 1983 when revenue settlement was going on. After conclusion of revenue settlement finally published khatian was prepared but it was not produced by the respondent. In the year 1988 respondent prayed for mutation of the land in her name to the revenue authority. Revenue authority on consideration of title and possession prepared the mutation khatian. Mutation register was maintained and thus respondent acquired title. Defendant-appellant failed to establish right, title, interest over the suit land. Their claim for adverse possession also has no footing. Thus the appeal has no merit."

Against the said concurrent finding as returned by the first appellate court, these present appeals are preferred by the defendant-appellants.

Mr. P. Chakraborty, learned counsel appearing for the defendant-appellants has submitted that Subhash Chandra Dhar became the owner of the suit land only on 07.07.2983 as would be apparent from the sale deed No. 1-1846 dated 07.07.1983 [part of Exbt.5 series in Title Suit No. 41 of 2010] but said Subhash Chandra Dhar transferred the suit land to Mst. Warichun Nessa, the respondent in RSA No. 19 of 2013, by executing the sale deed on 06.07.1983 [part of Exbt.1 series in Title Suit No. 41 of 2010] which was however presented for registration on 07.07.1983 as would be further evident from the sale deed No. 1-1843 [part of Exbt.1 series]. Similarly, Subhash Chandra Dhar executed another sale deed being sale deed No. 1-1844 dated 07.07.1983 in favour of Mst. Jaribun Nessa, the predecessor of the defendant-respondents in RSA No. 20 of 2013 [Exbt.10 in Title Suit No. 42 of 2010]. Mr. Chakraborty, learned counsel has submitted that when Subhash Chandra Dhar transferred the land in favour of plaintiff-respondent/ s he had no competence to transfer the land in terms of Section 7 of the Transfer of Property Act and as such, the agreement to sale itself is hit by Section 23 of the Indian Contract Act and thus, the said transaction is liable to be declared void. Mr. Chakraborty, learned counsel has further submitted that in terms of Section 24 of the Registration Act the date of the registration is immaterial as any document can be registered within 4 (four) months after its execution and the date of execution, therefore, would be the valid date of transfer. To bolster his submission, Mr. Chakraborty, learned counsel has also referred to a provision of Section 47 of the Registration Act, 1908 which provides as under:

"47. Time from which registered document operates. - A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration."

From the other side, Mr. R. Datta, learned counsel appearing for the plaintiff-respondents has though initially insisted that the date of registration should be taken as the effective date of transfer but later on, he had set up a fresh argument on the basis of Section 43 of the Transfer of Property Act, 1882. Section 43 of the Transfer of Property Act provides as under:

"43. Transfer by unauthorised person who subsequently acquires interest in property transferred. - Where a person [fraudulently or] erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."

Mr. Datta, learned counsel has emphatically submitted that since on the following day even if it is assumed that the transfer in favour of Subhash Chandra Dhar occurred on the day before the transfer made in favour of the plaintiff-respondent then also since the transferee purchased the land bona fide, their right should be reinforced when the pure title devolved in favour of the previous owner. Mr. Datta, learned counsel has submitted that the defendant-appellants do not have any right to question the title as they do not have the locus to question whether the transfer was made by a person having competence to transfer or not. Their claims are mutually destructive as it may be assumed for their contention that they had the right over the suit land by virtue of the title through Furkan Ullah and his brother, Rahaman Ullah and also by way of adverse possession which has been discarded by the trial court and the first appellate court. That concurrent finding since does not suffer from any perversity, this Court was pleased not to frame any substantial question on that aspect of the matter and hence, the defendant-appellants lack in standing to question the issue of title.

Mr. Datta, learned counsel has relied on a few decisions in favour of the contention as raised by him in these appeals. In Ram Saran Lall and Ors. v. Mst. Domini Kuer and Ors., reported in AIR 1961 SC 1747, it has been held by the majority that Section 47 of the Transfer of Property Act merely postulates when a document which required registration the registration is supposed to operate from a date which it may be earlier then the date on which it was registered but it does not provide when the sale would be deemed to have complete. An instrument of sale which was required to be registered would not culminative until the registration of the deed was complete. According to Mr. Datta, learned counsel, on 07.07.1983 the sale in favour of Subhash Chandra Dhar was complete and he acquired his required competence to transfer the land and he on the day itself transferred the land in favour of the plaintiff-respondent. He has also referred another decision of the apex court in Thakur Kishan Singh (Dead) v. Arvind Kumar, reported in (1994) 6 SCC 591, where the apex court has observed as under:

"3. The findings recorded by the High Court and the trial court have been assailed by Shri Sen, the learned senior counsel appearing for the appellant, and it is claimed that the lease deed having been registered after the material date, it could not confer any title on the respondent as the right title-in-interest of the respondent''s predecessor already stood vested in the State prior to registration of the lease deed. The argument does not appear to be sound. Section 47 of the Registration Act provides that a registered document shall operate from the time it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. It is well established that a document so long it is not registered is not valid yet once it is registered it takes effect from the date of its execution. (See Ram Saran Lall and Ors. v. Mst Domini Kuer and Ors. AIR 1961 SC 1749 and Nanda Ballabh Gururani v. Smt. Maqbool Begum : (1980) 3 SCC 346. Since, admittedly, the lease deed was executed on 5th December, 1949, the plaintiff after registration of it on 3rd April, 1950 became owner by operation of law on the date when the deed was executed. Therefore, the land did not vest in the State. And the courts below did not commit any error in negativing the claim of appellant."

Mr. Datta, learned counsel has also placed his reliance to nourish his submission, structured on the provision of Section 43 of the Transfer of Property Act, on Hardev Singh v. Gurmail Singh (Dead) by LRs., reported in (2007) 2 SCC 404, where the apex court had occasion to observe as under:

"14. The doctrine of feeding the estoppel envisages that ''where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel''.

The principle is based on an equitable doctrine that a person who promised to perform more than he can perform must make good his contract when he acquires the power of performance. The difference between the ambit of Section 41 and 43 of the Act is apparent. Whereas Section 41 provides that a transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorised therefore, subject to the condition that the transferee should take reasonable care to ascertain that the transferor had power to make the transfer and to act in good faith before a benefit thereof is claimed by him. Section 43, on the other hand, enables the transferee to whom a transferor has made a fraudulent or erroneous representation to lay hold, at his option, of any interest which the transferor may subsequently acquire in the property, unless the right of any subsequent purchaser for value without notice is in effect.

[Emphasis supplied]

Having appreciated the submission made by the learned counsel appearing for the parties and the view as taken by the apex court in Ram Saran Lall (supra) and Thakur Kishan Singh (supra), this Court is of the view that the previous owner had the competence on 07.07.1983 when the sale deeds for purpose of transferring the suit land were executed as the sale has to be deemed to have been completed on 07.07.1983 in favour of the previous owner. That apart, in view of what has been observed in Hardev Singh (supra), this Court is persuaded to hold that Section 43 of the Transfer of Property Act enables the transferees, the plaintiff-respondent/s to whom the transfer had been made. If it is assumed erroneous representation, if at all, to lay hold at his option of any interest which the transfer has acquired on the same day of the property and since he is not claiming any reversion or any subsequent purchaser is not claiming so, the plaintiff-respondent/ s are deemed to have acquired or they are entitled to be held as the holder of the title inasmuch as the said sale deeds as executed by the previous owner namely, Subhash Chandra Dhar were executed in favour of the plaintiff-respondent/s only. Hence, these appeals being devoid of merit are dismissed.

Draw the decree accordingly.

Send down the LCRs thereafter.