Sri Tanuram Keot vs Sri Padoram Kalita

B.L. Hansaia, J.—A question of some importance arises for determination in this appeal by the Plaintiff. The same is whether the sale of interest in annual patta land would continue in favour of the purchaser even after the patta is made periodic. What had happened in this case was that the Plaintiff purchased the Defendant''s interest over 3B-4K-9L on 9.2.65 at a sum of Rs. 2,000.00. This had admittedly been done when the patta was annual. The same was made periodic in 1974-75 in the name of the Defendant. The Plaintiff prayed for mutation of his name in 1976-77, but the same was ultimately rejected on 11.8.77. The present suit was thereafter filed on 21.9.77 to confirm Plaintiff''s possession of the suit land on declaration of his title. The suit was initially decreed by the learned. Munsiff, but has been dismissed by the learned Assistant District Judge.

Before proceeding to examine the legal question involved it may be stated that the case of the Defendant was that the transaction was one of usufructuary mortgage. As, however this Plaintiff had refused to give money if sale deed was not execute the Defendant had no alternative as he was hard-pressed for money both the Courts below have found the transaction as out and out a sale. This being a concurrent finding of fact and bused on the appreciation of the evidence on record, cannot be interfered with in this appeal. We have, therefore, to confine our attention to the legal question posed above. It may first be stated that as pointed out by this Court in Jainur Ali v. Chafina Bibi AIR 1951 Gau20 there is no prohibition of transfer of annual pattas. This view was expressed after referring to Section 11 of the Assam Land and Revenue Regulation and Rule 1(c) of the Settlement Rules framed under the Regulation. This proposition has not been disputed by any of the learned Counsels. As to what right the transferee acquires in such a case was put thus by Thadani, C.J. in paragraph 9:

...when an annual patta-holder purports to transfer his ownership in such land for consideration, the transferee takes good title to the property subject only to the paramount title of the Government, that is to say, if the Government so chooses it may, at the expiry of the period of the annual patta, refuse to grant an annual patta to the transferee. That, however, is a matter between the Government and the transferee and not a matter between transferor and a transferee.

Ram Labhya, J. in his concurring judgment added a few significant observations. His Lordship observed in paragraph 13 that annual patta-holder could merely transfer his limited right of user, and as the transferor has no permanent title, he cannot convey one to the transferee. It has been further observed that such a right has to expire with the expiry of the lease. The transferee sought the aid of Section 43 of the Transfer of Property Act to urge that in case of renewal of the lease, he would be an titled to claim that original contractual obligations between the parties would be kept alive. While dealing with this aspect, Ram Labhya, J. observed that for Section 43 to operate it is though that the representation is erroneous. As the transferor In. such a case has no authority to transfer the land, his representation implied in the act of the transfer was held to be wrong. To the argument of the other side that the limitations and the powers of an annual patta bolder are well known and that the parties could cot be said to be unaware of the same because of which Section 43 would not operate, it was stated that the protection of Section 43 is not conditional on the transferee being misled or deceived by the fraudulent or erroneous representation.

The above part of Jainur Ali''s judgment dealing with Interpretation of Section 43 cannot be said to be a good law of the decision of the Supreme Court in The Jumma Masjid, Mercara Vs. Kodimaniandra Deviah, Dealing with the requirements of Section 43, His Lordship has stated thus in paragraph 15-

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 bonafide 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 Section 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 of innocently in making the representation, and that what if, material is that be did make a representation and the transferee has acted on it. When 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 oh it when taking a transfer. Section would then have no application and the transfer will fall u/s 6(a). But where the transferee does act on the representation, there is no reason why be should not have the benefit of equitable doctrine embodied in Section 43, however, fraudulent the act of the transferor might have been.

(Emphasis added)

This pronouncement clearly shows that the benefit of Section 43 cannot be made available to a transferee where he knew that the transferor did not possess a title which he claimed in him.

This being the position in law, let us see whether the Plaintiff could claim title over the suit land in the percent case even after the patta had been made periodic. It would bear(sic) to state that the Plaintiff had purchased the land which was covered by annual patta and what could have really been transferred then, was the right of user inasmuch as annual lease confers no heritable or transferable right. Shri J.N. Sarma appearing far the Plaintiff, contends that when the Plaintiff had purchased the land by Ext. 5 what was sold to him was a heritable right and the Plaintiff was even allowed to get his name mutated on the strength of this deed. Apparently, this right could not have been conferred in respect of an annual patta land. It is because of this that protection of Section 43, T.P. Act is being sought by the Plaintiff as the transferor acquired a larger interest in the land subsequently, which he had purported to transfer earlier. But for Section 43 to operate this is not enough. It has further to be seen whether the transferee had been misled or whether he had known that the transferee did not possess the right which he had sought to pass on to him. Shri S.N. Medhi draws my attention to paragraph 4 of the plaint wherein it is stated as below:

That although the Plaintiff was in possession of the land, he did not pray for mutation in respect of the suit land during the period when the land was covered by annual patta as there is bar in the matters of sale, gift, transfer etc. in case of annual patta land according to the provisions of Assam Land and Revenue Regulation Act

This clearly shows that the Plaintiff did know that the Defendant could not have really sold his interest etc in the land. As such it cannot be held that the Plaintiff was in any way misled by the Defendant. It is thus a case where the transferee knew as a fact that the transferor did not possess the title which he represented he had. Section 43 would have no application in such a case because of what is stated in Jumma Masjid (supra).

In view of the above, the Plaintiff''s title over the suit land which is now covered by periodic patta cannot be declared. The appeal has, therefore, to be dismissed which I hereby do.