ORDER N.K. Mehrotra, J.
1. This is a second appeal by the defendant/appellant against the judgment and decree dated 15-11-1979 passed by the District Judge, Sultanpur upholding the judgment and decree dated 14-5-1977 passed by 2nd Addl. Munsif Sultanpur in Suit No. 277 of 1975, decreeing the respondent's suit for injunction and possession by demolition. This Second Appeal has been admitted on the following substantial question of law at the time of admission after hearing the appellant:--
"Whether the defendant's plea on the question of fraud has been fairly considered by the Courts-below by reasons of the fact that no separate issue on the ground of fraud was framed and further non-consideration of the facts that the plaintiff No. 1 is an advocate and the plaintiff No. 2 was a doctor who according to the defendant/appellant stood in fiduciary relation with him.
2. According to the facts of the case, the plaintiff/respondents filed the suit for injunction and possession by demolition before the Additional Munsif Sultanpur in the year 1975. In the said suit a decree for injunction and possession after demolition was granted in favour of the plaintiffs after consideration of the entire evidence. Against this judgment and order an appeal was preferred before the District Judge, Sultanpur. The said Appeal No. 235 of 1977 was dismissed after hearing both the parties.
3. Plaintiffs/respondents claimed their right over the land in dispute on the basis of the sale deed executed by the defendant/ appellant in favour of the plaintiffs/respondents on 22-7-1952. In this case the vendor had sold the land after depositing the ten times annual land revenue for taking Bhumidhari Sanad on 21-7-1952. On the next day after depositing the required amount, the sale deed in question was executed. But after the sale deed was executed, the defendant/appellant had taken back ten times rent which was deposited by him for getting Sanad of Bhumidhari. Thereafter, on 21-4-1975 the defendant/Appellant again deposited twenty times rent and obtained the Bhumidhari Sanad. During the period from 22-7-1952 to 21-4-1975 the (sic) injunction and possession and claimed benefit of Section 43 of Transfer of Property Act treating themselves to be Bhumidhar of the land in dispute on the basis of the sale deed dated 22 7 1952. The trial Court framed several issues and two relevant issues were : whether the plaintiffs were Bhumidhar of the land in dispute on the basis of sale deed dated 22-7-1952 and whether the plaintiffs were entitled to the benefit of Section 43 of the Transfer of the Property Act. Both these Issues were decided in favour of the plaintiffs. During the First Appeal, the appellate Court also framed 5 issues and the relevant two issues were whether the defendant/appellant was prejudiced for want of proper issues and whether the plaintiffs had acquired title over the disputed land on the basis of the sale deed dated 22-7-1952.
4. Before coming to other findings, first of all I would like to mention here that the disputed sale deed was executed by Shri Sadanand Pandey defendant/appellant in favour of Smt. Sunaina Devi wife of Dr. Ram Pher Singh plaintiff/respondent No. 1. Smt. Dropdi Devi wife of Jayanti Prasad Singh Advocate and Smt. Sursati Devi, wife of Ram Subhag Singh. As stated above, three vendees were all the ladies. It gives Impression that the wrong facts were put before this Court at the time of admission that the plaintiff No. 1 was an advocate and plaintiff No. 2 was a doctor and the so called substantial question of law framed by this Court is based on the wrong facts. One of the plaintiffs Dr. Ram Pher Singh is not a vendee in the sale deed. His wife late Sunaina Devi was one of the vendee. Out of the three vendees there is no Advocate. The fact is that Shri Jayanti Prasad Singh Advocate was the husband of one of vendees Smt. Dropdi Devi.
5. The judgment of the two Courts-be-low is based on the main issue whether the plaintiffs are entitled to the benefit of Section 43 of the Transfer of Property Act. Section 43 of the Transfer of the Property Act is as follows :--
"Section 43 Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, on the option of the transferee, operates on any interest which the transferor may acquire in such property at any time during which contract of transfer subsists.
Nothing in this Section shall impair the right of the transferee in good faith for consideration without notice of the existence of such option."
6. No doubt the defendant/appellant had taken the plea that the execution of sale deed was not conscious act and he had not signed the papers knowing it to be the document of the sale deed. On these pleadings both the parties led evidence. The trial Court discussed all these evidence at the time of deciding Issue Nos. 1 and 2 and held that the plaintiffs are Bhumidhar of the land in suit on the basis of the sale deed dated 22-7-1952 and they are entitled to benefit of Section 43 of the Transfer of the Property Act.
7. Both the Courts-below have recorded the finding of facts which are in accordance with evidence on record and there is no ground to Interfere in the finding of facts. At the time of admission, the so-called question of law was framed on the wrong facts presented by the appellant. It appears after seeing the record that both the parties have led evidence on the plea taken by the defendant/appellant in the written statement and Issue Nos. 1 and 2 were decided after keeping in view the evidence led by both the parties on the pleading of the alleged fraud as stated in the written statement by the defendant/appellant. In Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 19630 SC 884 it was held by the Supreme Court that "Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of any issue was fatal to the case, or that there was that mix trial which vitiate proceedings. The suit could not be dismissed on this narrow ground, and also there is no need to remit, as the evidence which has been led in the case is sufficient to reach a right conclusion and neither party claimed that it had any further evidence to offer. Similarly in Paras Nath v. Rameshwar Ram, 1999 SCD 422; It was held by this Court that where both the parties were fully aware of the facts and circumstances involved in the suit and evidence was led by both the parties of all possible aspect involved in the suit, the mere omission to frame issues does not vitiate the proceedings.
8. In Ishtiyaq Ahmad v. Commissioner, Varanasi Division 1974 RD 95; it was held by this Court that in a case where the land is sold on the professed representation that the seller has Bhumidhari rights, such a sale cannot be held to be of Sirdari rights. In such a case Section 43 of the Transfer of the Property Act becomes applicable and if the transferor professed to sell Bhumidhari rights the transfer fastens on such subsequently acquired transferable interest. In the facts and circumstances of the case this Division Bench judgment is fully applicable in this appeal. In the facts of this case the defendant/appellant had executed the sale deed on 22-7-1952 after depositing ten times of the annual land revenue for getting Bhumidhari rights a day earlier to the date of execution and after execution of the sale deed he withdrew that amount. Erroneous representation of vendor in the sale deed in question is in the following words.
(Vernacular matter omitted...Ed.) This statement became erroneous where executant withdrew the deposited amount. Later on he did not challenge the execution of the sale deed even after coming to know about sale deed dated 22-7-1952. Later on 21-4-1975 he again deposited twenty times of the rent for getting Bhumidhari rights and he became Bhumidhar, The defendant/appellant cannot take advantage of his act by withdrawing the amount of ten times rent reported for getting Bhumidhari rights. He has professed to be Bhumidhar on 22-7-1952 and subsequently in the year 1975 he had acquired Bhumidhari rights and the sale deed remained intact during this entire period. According to defendant-appellant, it is fraudulent transfer but no action has been taken by getting it cancelled by competent Court. Appellant being transferor, who has made erroneous representation, cannot seek assistance from the Court on the ground of his own fraud by making erroneous representation in the sale deed. Therefore, the plaintiffs/respondents have been correctly given the advantage of Section 43 of the Transfer of Property Act and I am of the view that the defendant/appellant has no right to challenge the Judgment of the two Courts below on the ground that the proper issue was not framed, in the facts and circumstances of the case as cited above.
9. Since neither doctor nor an advocate were the vendees in the sale deed, therefore, the allegation of fraud being played and confidence being deposed by the defendant/ appellant in his Advocate are without any force.
10. In view of the above, the appeal is dismissed with cost.