1. This appeal is by the appellant, who was 1st defendant in O.S.No. 20/1986 on the file of the Court of Civil Judge at Dharwad, challenging the judgment and decree passed therein by which the sard suit brought by the 1st respondent, who was plaintiff therein, has been decreed in part holding her as owner of land in Block No. 111/1 measuring 4 acres 9 guntas of Haletegur Village and entitled to its possession, though dismissed the suit for other reliefs claimed and also for land in Block No. 111/2 covered by sale deed dated 24.4.1972, and also against the judgment and decree passed in R.A.No. 20/1990 on the file of the Court of II Addl. District Judge at Dharwad, since the judgment and decree passed by the Trial Court came to be affirmed by the said 1st Appellate Court.
2. For the sake of convenience, the parties are referred hereafter as shown in the impugned judgment and decree of the Trial Court, i.e, plaintiff and defendants.
3. The brief facts, which gave rise to the present appeal, are: The plaintiff, who is the wife of 2nd defendant, claiming as the owner and possessor of the two suit lands on the basis of inheritance through her mother, brought suit for various reliefs with injunction, including the relief of declaration of ownership over suit lands and also with regard to two sale deeds executed by defendants No. 2 to 4 in favour of 1st defendant and, alternatively claimed possession of suit lands from 1st defendant with mesne profits, if found by Court not in possession of lands. The 1st defendant contested the said suit denying the entire case of plaintiff since, according to him, the plaintiff has no right or title to the suit lands, and her alleged inheritance is not correct and he is a bonafide purchaser for value without notice of plaintiff's right over the suit lands though, according to him, defendants No. 2 to 4 having right in the suit lands executed sale deeds for valid consideration and consequently, requested to dismiss the suit of plaintiff. It was his further case that from the date of sale, he is in possession and enjoyment of the suit lands and not plaintiff and consequently, the plaintiff is not entitled to the relief of injunction also. The defendants No. 3 and 4 adopted the written statements of 1st defendant. However, 2nd defendant has supported the case of plaintiff. The Trial Court, on consideration of the evidence adduced by the parties and hearing argument, partly decreed the suit of the plaintiff with regard to land in Block No. 111/1 and ordered for possession of that land to the plaintiff from 1st defendant, but dismissed the suit in respect of other suit land in Block No. 111/2. The 1st defendant challenged the said judgment and decree by filing R.A.No. 20/1990 before the 1st Appellate Court, but he was unsuccessful before that Court. Hence, he is before this Court now.
4. At the stage of admission, on 10.10.2001, this Court has framed the following substantial question of law in the present matter.
'Whether the plaintiff who herself has got mutation made in respect of the suit properties and stood as a mute witness when defendants 2 to 4 effected the two sale deeds in favour of the appellant/defendant No. 1 could seek declaration and avoid the sale deeds executed in favour of the appellant by other defendants with the consent of the plaintiff as provided under Section 41 of the T.P. Act.'
5. Heard the learned Counsel appearing for the parties and perused the records.
6. At the outset, it may be noted that the plaintiff, who succeeded in part in her suit with regard to suit land block No. 111/1 only and failed to get any relief with regard to other suit land block No 111/2, has not challenged that part of the judgment and decree by which she was refused relief with regard to block No. 111/2 and as such, it is not necessary for this Court to go into that part of the evidence relating to said land block No. 111/2.
7. It is the case of 1st defendant that the plaintiff herself got made mutation of the said lands in favour of her husband - 2nd defendant and his brothers - defendants No. 3 and 4, by giving consenting 'Varadi' in the year 1968 and thus, the names of defendants No. 2 to 4 came to be mutated for the suit lands showing them as owners and possessors and accordingly, he, believing them as owners and possessors on the basis of the entries in the revenue records, for valuable consideration without notice of claim, if any, of plaintiff, purchased the suit lands and as such, he is protected under Section 41 of the Transfer of Property Act. On account of this stand of 1st defendant only, this Court appears to have framed the question of law referred to already.
8. However, it may be noted that though it is pleaded by 1st defendant in para -6 of his written statement that he is a bonafide purchaser for value without notice of plaintiff's right, if any, over the suit lands, he has not pleaded any where that he believed defendants No. 2 to 4 as the absolute owners or title holders of the suit lands on account of the fact that their names appeared in revenue records as owners that possessors on the basis of the consent 'Varadi' given by the plaintiff. In other words, no where the 1st defendant pleaded that he took defendants No. 2 to 4 as ostensible owners of the suit lands so as to invoke Section 41 of T.P.Act. It need not be said that a party cannot make out a new case during trial or at any stage subsequent thereto if he/she has not pleaded about it in her/his pleadings. It is not that the protection being claimed by the 1st defendant under Section 41 of T.P. Act is purely a question of law, not based on facts. In fact, a decision on the plea of protection under Section 41 of T.P. Act depends on several questions of fact, each requiring careful examination and as such, it cannot be said that unless such a plea was taken in the pleading and put in issue between the parties, a party to the proceedings can raise the plea covered by Section 41 of T.P. Act, for the first time in appeal.
9. Be that as it may, the undisputed fact is that the 1st defendant not specifically pleaded that defendants No. 2 to 4 were the ostensible owners of the suit lands, though pleaded that he is a bonafide purchaser for value without notice of plaintiff's right, if any. It is not that Section 41 of the said Act comes to the aid of a party without there being any pleading or a case set up by party that the purchase was through an ostensible owner. If the sale is not by an ostensible owner, the said provision of law does not come into picture.
10. If this is kept in mind with absence of specific pleadings of 1st defendant, and not referring defendants No. 2 to 4 as ostensible owners. It cannot be said that 1st defendant could fall back on Section 41 of T.P. Act. In fact, it was his definite case that the plaintiff, who claimed her ownership over the suit land, has no right or title and defendants No. 2 to 4 were the title holders of the suit land. When this is so, it was too late for 1st defendant to invoke Section 41 of T.P. Act, when no foundation was laid for that in his pleadings at first instance or even at a later stage, by way of amendment. Be that as it may, since the Trial Court and 1st Appellate Court as well have considered as to whether or not, the 1st defendant is entitled to have protection or benefit under the said provision of law and this Court also raised the question of law covering the said provision of law only, let me consider whether or not the 1st defendant succeeded in showing that he is entitled to have protection under that provision of law.
11. It is vehemently argued for the 1st defendant that the plaintiff was a consenting party in that, she was present at the time of sale talk taken place at her house because she admittedly resides with her husband- defendant No. 2, and even she was present at the time when sale deeds were executed. However, this argument is not supported by evidence of 1st defendant himself, much less, by the attesting witnesses to the sale deeds examined as DWs. 2 to 4. Nowhere the 1st defendant examined as DW.1 has stated that the sale talk had taken place in the presence of the plaintiff or, that with the knowledge or consent of plaintiff, defendant No. 2 entered into sale transaction with him. Of course, DW. 5, who is none other than defendant No. 3 in the suit and brother of defendants No. 2 to 4, has stated that the plaintiff knows the said transaction, though that was not stated by 1st defendant himself. However, the evidence of DW-5 - Fakkirappa is not at all believable because he has pleaded ignorance about the facts, admitted by 1st defendant- a stranger to the family in that, he pleaded ignorance that Parwathewwa was plaintiff's mother and who was the father of the plaintiff and, that parents of plaintiff had properties in his village etc., As noted already, DW.5 is none other than the brother of defendant No. 2 and defendant No. 2 is the husband of plaintiff. So, the statement, pleading ignorance about parents of plaintiff by DW.5, cannot be believed. That apart, though he claims that he with other defendants No. 2 and 4 got suit lands from his father, pleaded ignorance as to how his father got the suit lands and, that the suit lands were standing in the name of the mother of the plaintiff and that the name of plaintiff was entered after death of Parwathewwa, even though specifically denied the suggestion made for the plaintiff that the suit lands were not belonging to his father. So, such a witness like DW.5 cannot be believed when even other evidence on record is considered.
12. It is the case of the 1st defendant that the plaintiff herself gave 'Varadi' for entering the names of defendants No. 2 to 4 in the revenue records of suit lands. In fact, this is specifically stated by said DW.5, However, one fails to understand as to why the plaintiff gave a 'Varadi' to enter the names of defendants No. 2 to 4 for the suit lands if, really, the father of defendant Nos. 2 to 4 was the real owner and plaintiff had no concern with the suit lands. This has remained unexplained. Even DW.5 himself has stated that he cannot say why plaintiff gave such 'Varadi' though, according to him, he had seen her giving 'Varadi'. It is also strange to note that according to DW.5, he and his brother had not given any 'Varadi' for entering their names though, according to him, the suit lands were owned by his father who was cultivating the same and after his death, his three sons i.e., defendants No. 2 to 4 were cultivating the same.
13. At this juncture, reference can be had to the record at Ex.P.3, produced by plaintiff, which shows that in the year 1959, father of defendants No. 2 to 4 himself had applied for mutation showing him as guardian of minor plaintiff and not that he had applied for mutation in his own right. Further, Ex.P.6 shows the name of Parwathewwa, who was the mother of the plaintiff, for the land Block No. 87, which was changed to block No. 111. If really, the plaintiff's mother had no concern over the suit lands, it is not explained as to why and how the name of Parwathewwa is found in the revenue records. It is the case of the plaintiff that her father Rayappa predeceased her mother Parwathewwa and the suit lands were earlier forming one block No. 111 and since she happened to be the sole issue of her parents, after death of Parwathewwa, she became the owner of the suit land. In fact, Ex.P.3 referred to already supports her said stand. Since no explanation is forthcoming as to why Mallappa, father of defendants No. 2 to 4, applied for mutation as guardian of plaintiff, if plaintiff had/has no concern with suit lands. Further, not even a scrap of paper has been produced to show that he was the absolute owner in his own right. On the other hand, the records referred to above and in fact 'Kabuli Varadi' alleged to have been given by plaintiff also indicate plaintiff as the owner of the suit lands and not the father of defendants No. 2 to 4. Otherwise, there was no need for the plaintiff to give 'Varadi' to enter the names of defendants No. 2 to 4 even if the case pleaded by 1st defendant supported by defendants No. 3 and 4 is believed.
14. It need not be said that transfer of an immoveable property can be by way of registered document when the value of such property is more than Rs. 100/-. It is not the case or evidence of 1st defendant that when plaintiff gave 'Varadi', as contended by him, the suit lands were worth less than Rs. 100/- and as such, on account of such consent 'Varadi', they derived any title, much less, a valid title to the suit lands. In fact, the Trial Court has observed that giving 'Kabuli Varadi' itself cannot be believed and even if believed for a moment, it also did not confer any right or title on defendants No. 2 to 4 for the suit lands.
15. It is vehemently argued for the defendant that since the names of defendants No. 2 to 4 were appearing in the revenue records right from the year 1968 on the basis of alleged 'Kabuli Varadi' given by plaintiff, the 1st defendant believed defendants No. 2 to 4 as owners and possessors of the suit lands since they were in actual possession and consequently, he can said to be bonafide purchaser for value without notice of plaintiff's right if any, over the suit land and consequently sought protection under Section 41 of the T.P. Act.
16. It is true that the entries in the revenue records stood in the name of defendants No. 2 to 4 from the year 1968 onwards when the 1st defendant purchased the properties. But, the question is, whether the 1st defendant had or can be said to have taken reasonable care to ascertain the right or title of defendants No. 2 to 4 to transfer the suit lands so as to say that he had acted in good faith, though the sale deeds were for valid consideration. At this juncture, it may be noted that the 1st defendant-DW 1 has categorically admitted in his cross examination that he has not enquired about the previous ownership. So, it cannot be said that he had taken reasonable care to ascertain whether or not defendants No. 2 to 4 had power to transfer the suit lands.
17. Further, it is not that 1st defendant is from a village different from the village of the plaintiff and/or defendants No. 2 to 4. In fact, he is from the same village. Not only that, his house is near by to the house of plaintiff and defendants No. 2 to 4. It is on record that plaintiff resides with defendant No. 2 in the same house and even defendants No. 3 and 4 reside in the same building but in different portions. The fiduciary relationship between the plaintiff and defendant No. 2 also cannot be lost sight. It is also not that 1st defendant was not knowing the parents of plaintiff and/or that the suit lands are situated at a village different from the village of the parties,
18. Even if the mutation made in favour of defendants No. 2 to 4 in the year 1968 is taken into consideration along with the entries standing in their names from the year 1968 onwards till suit land came to be purchased by 1st defendant, then also, if defendant No. 1 had made any enquiry about title of defendants No. 2 to 4, certainly he could have come to know that, in fact, they were not the title holders and that the plaintiff is the owner of the suit lands. However, as the 1st defendant did not make any enquiry even to know about the previous ownership, much less with regard to the entries standing in the name of defendants No. 2 to 4 in the revenue records, though strongly relied on by his learned Counsel, it cannot be said that he had taken any care, much less, reasonable care to ascertain as to whether or not defendants No. 2 to 4 had title to the suit lands.
19. In the case of Mehdi Hasan v. Ram Ker, AIR 82 All 92 relied on by the learned Counsel for the plaintiff, it has been held as under:
'The mere fact that the name of Smt. Khatibunnisa was recorded at the relevant time in the revenue papers was not enough in law to enable the defendant - respondent to plead that he was a bonafide purchaser of the property for value and that the sale deed in his favour could not therefore, be assailed by the plaintiff'.
So also in the case of Laxman Sakharam Salvi and Ors. v. Balkrishna Balvant Ghatage, AIR 1995 Bom 190, the Bombay High Court has negatived the stand of a purchaser who sought protection under Section 41 of the T.P. Act even though there were number of records, apart from property card.
20. So, simply because the names of defendants No. 2 to 4 were found for the suit lands, the 1st defendant could not have ventured to purchase the suit lands from them, without ascertaining or knowing whether or not they were the real owners or not.
21. Of course, the learned Counsel for the defendant relied on a decision of this Court in the case of Seshmull M. Shah v. Saved Abdul Rashid, : ILR1991KAR2857 in support of his argument that in the facts and circumstances of the present case, Section 41 of T.P. Act comes to the aid of 1st defendant. However, the said decision, instead of helping the 1st defendant, comes against his case because in the said decision also what has been held is as under:
'In any event, he did not consider it necessary to make enquiries by reference to the revenue records before entering into an agreement to sell. He did not make any enquiry to find out on whose behalf rent was being paid after the said Hiba-bil-ewaz... and there was no document to title in favour of defendant No. 2 as he claimed to have derived title orally from plaintiff, a prudent person would have certainly made enquiries from the plaintiff herself........
9. For these reasons and other reasons mentioned by the Courts below I find no reason to set aside the finding that defendant No. 1 failed to make reasonable enquiries which he was required to make before he would claim protection under Section 41 of the Transfer of Property Act'.
22. In fact, the Trial Court has observed and held as under:
Para 15 .... 'There is also material on record to show that defendant 1 has not taken reasonable care to ascertain that defendants 2 to 4 were real owners of the suit properties and they had power to make transfer. Under such circumstances it cannot be said that he has acted in good faith D.W. 1 admits in the cross-examination that he knows defendants 2 to 4 since his childhood and plaintiff was married to defendant No. 2 long back. He also knows that plaintiff was daughter of Rayappa Doalvai and Parwatewwa. In para 4 of cross - examination he states that he has seen the entries in the R. of Rights before purchasing the suit land. Such enquiry cannot be called as bonafide enquiry for the purpose of Section 41. In para 6 of the cross-examination D.W. 1 states that he has not asked other defendants how they got the suit land and how they got their names entire in the R. of R. in the concluding sentence he admits that he has not enquired about prior ownership. He has not published any notice in the news paper. This material is sufficient to show that right of defendant No. 1 cannot be protected under Section 41 of the T.P. Act'.
23. So also, what has been considered and concluded by the 1st Appellate Court is as follows:
'Para 22 .... There is absolutely no evidence on record to show that the appellant - defendant -1 had taken proper steps to ascertain as to who is the owner of the land purchased by him. No public notice was issued before registration of the sale-deeds. No enquiry was made with anv person including the plaintiff regarding the real ownership of the property. It is therefore merely based on disputed mutation entries, defendants Nos. 2 to 4 could not have pretended and forced the ostensible owners to alienate the property, which they did not know. It is, therefore, the appellant-defendant No. 1 cannot seek protection of benefit of Section 41 of Transfer of Property Act, to non-suit the plaintiff in entirety'.
24. In the above view of the matter, when, as required under proviso to Section 41 of T.P. Act, no care, much less reasonable care was taken by 1st defendant to ascertain as to whether or not defendants No. 2 to 4 were the title holders and that he acted in good faith, he cannot have protection under Section 41 of T.P. Act. Simply because there was mutation with entries made in favour of defendants No. 2 to 4 for the suit lands, that does not help 1st defendant so as to answer the question of law in his favour. So, the question of law raised requires to be answered against the 1st defendant.
25. Of course, the learned Counsel for the 1st defendant relied on certain decisions on the point of Limitation canvassed, but they are not at all helpful to him in the present matter because the suit of the plaintiff has been decreed in part, as has been noted already for the reason that challenge to the first sale deed was held barred by time and as such, it is not necessary to go into said decisions and/or the point of limitation argued, for which, rightly no question of law, has been raised by this Court. No other point has remained nor raised for consideration in the matter.
In the result, appeal is dismissed with cost.