The instant second appeal is directed against the judgement dated 13.9.2019 passed by First Appellate Court dismissing Civil Appeal No.155 of 2018. The said appeal was filed by the appellant challenging the judgement and decree dated 25.9.2018 passed by trial court in Original Suit No.1092 of 2013 dismissing his suit for injunction.
The plaintiff-appellant claimed title of the suit property on basis of three registered sale deeds dated 24.4.2009, 21.1.2010 and 26.2.2010 executed in his favour by Rahman Ullah Khan, Shahid Ali and Smt. Shahroon. The plaintiff-appellant, asserting that the defendants are interfering in his possession, filed the suit for injunction. The defendants in their written statement pleaded that the appellant has absolutely no title or possession over the suit property. They had taken loan from Oriental Bank of Commerce for establishing their business over the suit property. It was mortgaged in favour of the Bank. In the year 2012, its possession was taken over by the Bank and was auctioned on 25.11.2013. The name of the auction purchasers stands mutated in the revenue records. They further asserted that the vendors of the plaintiff claim title in their favour on basis of alleged sale deeds obtained from Hazi Farooq S/o Hazi Syed Khan. He was also not having any title over the suit property, consequently, he was not competent to transfer any valid title.
The trial court framed issue no.1 with regard to title and possession of the plaintiff over the suit property. While deciding the said issue, the trial court returned a specific finding that Hazi Farooq, who had allegedly sold the suit property to the vendors of the plaintiff, himself was not having any title. He appeared in the witness box as PW-3 and admitted that he does not have any sale deed in his favour in respect of the suit property. The trial court also considered the plea of the plaintiff-appellant that Hazi Farooq was partner in Poultry business with the defendants and at the time of dissolution of the said business, the suit property was allocated to him in lieu of the money invested by him in the business. The trial court has observed that the suit property was mortgaged in favour of the Bank, as the Firm had taken loan from it. It has also been observed that at the time of dissolution of Firm, the assets thereof have to be first applied for meeting the debts and liabilities of the Firm as provided under Section 46 of the Partnership Act, 1932. The Bank in whose favour there was mortgage, had, therefore, taken possession of the same and the Authorised Officer of the Bank had executed sale deed in favour of Tridev Sharma and Nazim Ali, the auction purchasers, who had not been arrayed as party to the suit. It has been held that since the vendors of the plaintiff-appellant had no title to the suit property, therefore, the claim of the plaintiff-appellant regarding his ownership is without any legal basis. The Appellate Court has concurred with the findings recorded by the trial court.
Learned counsel for the appellant submitted that even if Hazi Farooq was not actual owner of the suit property, he was ostensible owner under Section 41 of the Transfer of Property Act and consequently, the sale deeds were valid. It is also submitted that the appellate court has not recorded proper findings as per Order 41 Rule 31 (c) of the Civil Procedure Code.
Section 41 of the Transfer of Property Act protects transfer by ostensible owner with express or implied consent of the person interested in the immovable property. Such a transfer would not be voidable on the ground that the transferrer was not authorised to make it. Transfer by ostensible owner has its genesis in the doctrine of estoppel. Where real owner of property makes some one appear to be owner of his property, the third parties acting upon it, in good faith, stand safeguarded. The owner will not be permitted to retract from the representation, express or implied, made by him to the third parties. In my opinion, Section 41 is not at all attracted to the facts of the instant case. The transfer in favour of the vendors of the plaintiff-appellant or in favour of the plaintiff-appellant is not being avoided by the true owners. On the other hand, the true owners had come up with the plea that they were not left with any title or interest in the suit property, as it was subject matter of mortgage in favour of the Bank and the Bank in exercise of its power under the said mortgage, had transferred the same by auction in favour of third parties. Moreover, it is also not proved that the transferees had acted in good faith in obtaining sale deeds from Hazi Farooq, who himself had absolutely no title in the suit property. Moreover, the alleged dissolution deed on basis of which the plaintiff claim that Hazi Farooq was having title, is not a registered document and could not be recognised as a valid mode of conveyance of immovable property having value of more than Rs.100/-. The said dissolution deed does not find mention in the plaint nor was exhibited, thus, even otherwise, could not be relied upon.
Coming to the second submission, the Appellate Court has returned a specific finding that the vendors of the plaintiff had no title to the suit property, consequently, the plaintiff did not get any right or interest in the suit property. While coming to such conclusion, the Appellate Court has taken into consideration the sale deeds on basis of which the plaintiff-appellant claimed title. The Appellate Court has also taken into consideration the admissions contained in testimony of PW-1 as well as other documentary evidence. Since this Court has not found any illegality in the findings of the trial court and the judgement of the Appellate Court is a judgement of affirmance, therefore, this Court is not inclined to accept that there was violation of Order 41 Rule 31 (c) CPC.
No substantial question of law is involved in the instant appeal for consideration by this Court.
The appeal lacks merit and is dismissed.
(Manoj Kumar Gupta, J) Order Date :- 18.12.2019 SL