1. The defendants are the appellants.
2. The suit O.S. No.56 of 1980 was filed by the respondent herein against the appellants before the District Munsif, Tirunelveli, for declaration of title and for permanent injunction against them restraining them, their men, etc., from interfering with his enjoyment of the property on the following averments:
The suit vacant site and the house that stood thereon belonged to his grandfather, who sold it to one Manakkan several years back. Manakkan was in possession and enjoyment of the same for many years and on his death, his son, one Lakshmanan was in possession and enjoyment. He left the village for good and settled in a neighbouring village, called Savalakkarankulam. The house fell down in course of time about 12 years prior to the suit and since then, the respondent was in enjoyment of the vacant site. He had also planted one Vadamadakki and also raised Karuvai trees in the site. On 5.2.1979, he got the sale deed under Ex-A.1 from the said Lakshmanan and had thus perfected title to the schedule site and the trees standing thereon. He was the owner in possession. With a view to put up.a house in the site, he was arranging to cut the trees in the last week of December, 1979. This was obstructed by the appellants. One of the appellants wanted to take sale of the site and the respondent had got the sale and having failed in the attempt, the appellants wanted to prevent the respondent from enjoying the property. There was ho response to the notice issued by the respondent under Ex.B-l on 19.12.1979. The suit was therefore necessitated.
3. The appellants resisted the suit contending inter alia as follows:-
The averments in the plaint were not true. Lakshmanan was the aunt's son of the first appellant. Out of love and affection, Manakkan and Vellayan, the first and third appellant herein, permitted him to put up a construction in the suit property and resided there. However, the said Lakshmanan was not to claim any right in the property and should quit and deliver vacant possession to the appellants whenever they wanted the property. Only on the basis of this permission, the said Lakshmanan was in possession and he had no right, title or interest in the property, he was only in permissive occupation. Such permission was given about 10 years prior to the suit. The superstructure was agreed to be given to the appellants by Lakshmanan on payment of Rs.200 and even without receiving any payment, the superstructure was given to the appellants. In the meantime, the respondent had taken a sale deed from Lakshmanan. Neither Lakshmanan nor his father had any right in the suit property. The trees in the suit property had grown spontaneously. Since Lakshmanan had no right, title or interest in the suit property, the alleged sale deed by him in favour of the respondent, was not true or valid. Lakshmanan, realising his mistake, later on cancelled the sale deed. The suit property belonged jointly to the first and the third appellants absolutely. They had collected stones for putting up construction. The respondent was attempting to remove the stones kept in the property by the first and the third appellant for putting up a house. The respondent had no right in the property. The suit was liable to be dismissed.
4. The trial Court framed the necessary issues and found that the suit property did not belong to the respondent, that Lakshmanan was only in permissive possession of the suit property, that Lakshmanan had no title to the suit property and the property belonged only to appellants 1 and 3 since the documents Ex.A-1 had been purchased from Lakshmanan by fraudulent means, the same was subsequently cancelled by Lakshmanan and that the respondent had not prescribed for title by adverse possession. So holding, by his judgment and decree dated 31.3.1983, the learned District Munsif dismissed the suit.
5. However, on appeal by the respondent in A.S. No.78 of 1983 before the I Additional District Judge, Tirunelveli, the learned Judge, by his judgment and decree dated 28.4.1984, allowed the appeal and reversed the decision of the trial Court and decreed the suit as prayed for. Aggrieved, the present second appeal has been filed.
6. At the time of admission, the following substantial questions of law were framed for decision in the second appeal: (i) Whether the lower appellate Court was right in invoking Section 41 of the Transfer of Property Act in the absence of pleading and proof? (ii) On the finding by the lower appellate Court that the plaintiff has not proved the anterior title, can a decree for title be granted to plaintiff on the weakness of the defendant's case? (iii) Is the reasoning of the lower appellate Court that Ex.B-4 is inadmissible in evidence correct; and (iv) Is the approach of the lower appellate Court correct to the facts and circumstances of the case?
7. Mr. Peter Francis, the learned counsel for the appellants, submitted that the respondent had not pleaded that he was entitled to invoke the provisions of Section 41 of the Transfer of Property Act (hereinafter referred to as the 'Act'), nor did he let in any evidence to substantiate his right to claim the benefits and the lower appellate Court grievously erred in decreeing the suit applying the provisions of Section 41 of the Act. To sustain his stand on this point, the learned counsel relied on the following two judgments: (a) Smt. Parbati Devi v. Kashmirilal Sharma and others, (D.B.); (b) Gurbaksh Singh v. Nikka Singh and another, .
8. The learned counsel further submitted that the respondent had sought to abandon his case and attempted to get a decree on the basis of the appellants' case. This, the respondent was not entitled to end in support of this contention, the learned counsel relied on the judgment of this Court reported in T.S. Govindarajan v. A.B. Kandaswami Gounder and another, . One other submission made by the
learned counsel for the appellants was that the lower appellate Court rejected Ex.B-4 for want of registration and the lower appellate Court clearly erred in rejecting Ex.B-4 which was a partition list among the appellants, that there was an oral partition which was subsequently reduced to writing in the form of a partition list under Ex-B-4. The learned counsel relied on the judgment of the Supreme Court reported in Roshan Singh v. Zile Singh, AIR 1988 SC 881.
9. Mr.K. Chandrasekaran, the learned counsel appearing for Mr.B. Kumar, for the respondent, submitted that the suit property was Natham Jari, that only possession was talks about in Ex.A-1 and in the written statement, the appellants had admitted the possession of Lakshmanan and the possessory title of the appellants must be protected. So far as Ex.B-4 partition document is concerned, the learned counsel submitted that rights were created in favour of the parties Under the deed only and the deed creating as it does rights in praesenti should have been registered and in the absence of registration Ex.B-4 had been rightly rejected by the lower appellate Court. When once Ex.B-4 went, the case of the first appellant who claimed the property only under Ex.B-4, should fail.
10. The plaintiff came forward with the specific case of title. He claimed that the suit property belonged to his grandfather who sold it to the father of Lakshmanan and after the death of his father, Lakshmanan became entitled to the property and from Lakshmanan, the respondent had purchased the property. There is absolutely no material to show that the respondent's grandfather owned the property. Consequently, there is nothing to show that Lakshmanan became entitled to the property. The respondent had not established his vendor's title and he should have been non-suited oh this solitary ground. The learned District Judge had picked holes in the case of the appellants. He omitted to see whether the respondent had proved his case. He had made erroneous assumptions and interfered with the decision of the trial Court. The learned District Judge has also invoked Section 41 of the Act, for which, no basis at all had been laid in the pleadings.
11. Section 41 of the Act runs as follows:
"41. Transfer by ostensible owner:- Where, with the consent, express or implied, a person is the ostensible owner of such property, a person i the ostensible owner of such property and transferes 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."
12. For Section 41 of the Act to be invoked, four conditions have to be satisfied and they are: (a) the transferor is the ostensible owner; (b) he sold by the consent, express or implied of the real owner; (c) the transfer is for consideration; and (d) the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer.
Even if one condition is not satisfied, the person claiming the benefits would not be entitled to the same.
13. The lower appellate Court has declared the title of the respondent by invoking Section 41 of the Act and had proceeded as follows:
"His living in the suit property is not denied by the defendants. For all practical purpose, Lakshmanan was the ostensible owner. No reasonable man of ordinary prudence would pursue the enquiry further to ascertain whether Lakshmanan had power to make the transfer because the apparent ownership will be complete in all ite indicia. If this position is reached, then the onus is laid on the real owner to show that there were circumstances which ought to have put the transferee upon further enquiry. But such circumstances are not shown to have been in existence. These principles are well brought out in, Catholic Mission Presentation Convent v. Subbanna Goundan, 1948 (1) MLJ 11. It is enough to apply Section 41 of the Transfer of Property Act, if it is shown that with the consent, express or implied, of the real owner was in the real position of the ostansible owner and as such he made a transfer of which the real owner was unaware. This is the principle enunciated in, Satyanarayanamurthi v. Pydayya, AIR 1943 Mad. 459. But in the present case on hand, the evidence of D.W.1 that with their consent, Lakshmanan was allowed to be in permissive possession of the suit property is not satisfactory."
14. As already stated, there was no pleading invoking Section 41 of the Act. There is also no factual proof that the respondent was entitled to the benefits of Section 41 of the Act.
15. In Smt. Parbati Devi v. Kashmirilal,, , it was
held that unless the plea had been clearly taken in the pleading and put in issue between the parties, it would not be open to the Court to look at particulars of statements made in connection with the other matters which might appear to be evidence on the points to be considered in deciding a plea under Section 41 of the Act.
16. In Gurbaksh Singh v. Nikka Singh and another. , while dealing with Section 41 of the Act, a constitution Bench of the Supreme Court observed that Section 41 being exception to the general rule that a person could not confer a better title than he had, the onus was on the transferee to show that the transferor was the ostansible owner of the property and that he had after taking reasonable care to ascertain that transferor had power to make transfer, acted in good faith.
17. As happened in the case before the Supreme Court, the finding given by the learned District Judge that the respondent was a bona fide purchaser in good faith, was not based on any pleading and proof in the case, but was merely ipsi dixit. The learned District Judge erred in considering the impact of the provisions of Section 41 of the Act on the facts of the case without any foundation having been laid hi the pleadings and the same not having been proved. The specific case in the plaint was that the suit property belonged to the plaintiff's grandfather who sold to Lakshmanan's father and after Lakshmanan's father's death, Lakshmanan became entitled to the property from whom he purchased. In the wake of these pleadings, there was absolutely no warrant for bringing in Section 41 of the Act to the facts of the present case. Such a finding arrived at without evidence and without applying the correct principles of law, cannot bind this Court. It is indeed exercising powers under Section 100, Civil Procedure Code. But the error of law committed by the lower appellate Court is so patent and substantial that it calls for interference. The decisions referred to and relied on by the learned District Judge in Paragraph 10 of the Judgment may be unimpeachable on the legal aspect they deal with but, they have no application to the facts of the present case.
18. The lower appellate Court has made yet another serious mistake and that is it has proceeded to hold that the plaintiff had proved his title by producing Ex.A-1 title deed and that the transferor did not come to Court and dispute the title and more than that, even according to the defendants, Lakshmanan was in possession for atleast 10 years with the permission of defendants 1 to 3 and this they had not established, and therefore, the plaintiff's case should be accepted. To say the least, this has faulty reasoning and the conclusion based on this cannot be allowed to stand. It is settled law that a plaintiff should stand or fail on the strength of his own case and not rely on the alleged weakness of the defendant's case.
19. One other aspect that has to be considered is the rejection of Ex.B-4 by the lower appellate Court. I am clearly of the view that the lower appellate court has misread Ex.B-4. In my opinion, the document did not effect a partition, but merely recorded the nature of the arrangement arrived at as regards the division of the properties. The decision of the Supreme Court in Roshan Singh v. Zile Singh, AIR 1988 SC 881. will apply to the facts of the present case and it has to be held that Ex.B-4 was only a partition list recording a partition which had already taken place among the parties.
20. One other point sought to be raised by the learned counsel Mr. Chandrasekaran for the respondent, was that the parties knew about what kind of right they had and the respondent having established his possession, his possessory right should be declared by the Court. Even for showing his possession, the respondent had not produced any document. In fact, no document showing his possession in his own right, was filed before the trial Court. Ex.A-1 is the sale deed in favour of the respondent from a person who has not been proved to have any title to the suit property. Ex.A-2 sale deed, dated 13.3.1961 admittedly does not have anything to do with the suit property. Ex.B-1 is the notice by the third appellant's lawyer and Ex.A-3 and Ex.A-4 are the acknowledgements. None of these documents showed the possession of the respondent in the suit property in his own right.
21. The learned District Judge also referred to the site being a village Natham. Now here in the pleadings of the respondent there is reference to the suit property being Natham Jari, or village Natham.
22. In view of the discussion above, the substantial questions of law raised have to be answered in favour of the appellants and against the respondent. The lower appellate Court was clearly in error in invoking Section 41 of the Act in the absence of pleading and proof. The respondent had not proved his anterior title of his vendor and there could be no decree for title in favour of the respondent. The reasoning of the lower appellate Court that Ex.B-4 was inadmissible in evidence, is also erroneous. The entire approach of the lower appellate Court in dealing with the case is not correct. The learned Judge had bothered about the case of the appellants without attempting to find out whether the respondent who had come forward with the specific case of title and possession, had established the same.
23. The second appeal will stand allowed. However, there will be no order as to costs. Consequently, CMP No.10127 of 1984 is closed.