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High Court Of Orissa
G. B. Pattanaik
TRILOCHAN BEHERA, SABITRI BEHERANI - Appellant
Versus
NAIKO BEHERA SUBHADRA - Respondent
S. A. 139 Of 1980
Decided On : 08/21/1990
SALE OF LAND - BOUNDARY AND PLOT NUMBERS - AMBIGUITY - INTERPRETATION - SECTION 43 OF THE TRANSFER OF PROPERTY ACT - APPLICABILITY.
Fact of the Case:
Plaintiff No. 1 purchased land from Defendant No. 2 under a registered sale deed (Ext. 2) in 1958. The sale deed contained plot numbers 21, 50, and 43 under khata No. 2 and plot No. 38 of Khata No. 1, but the boundary given in the sale deed corresponded to plot No. 44. Plaintiff No. 1 claimed possession of plot No. 44, but Defendant No. 1, who purchased plot No. 44 from Defendant No. 2 in 1962, claimed possession of the same plot. The trial court dismissed the plaintiffs' suit, but the lower appellate court reversed the decision and held that plot No. 44 was conveyed to the plaintiffs under Ext. 2.
Finding of the Court:
The High Court held that the lower appellate court correctly interpreted the sale deed (Ext. 2) and that the boundary given in the sale deed prevailed over the plot numbers. The court also held that the plaintiffs were entitled to the benefit of Section 43 of the Transfer of Property Act, which protects a purchaser for value without notice, and that the plaintiffs had acquired a valid title to the land in question.
Issues: 1. Whether the boundary given in the sale deed (Ext. 2) prevailed over the plot numbers mentioned in the body of the document? 2. Whether the plaintiffs were entitled to the benefit of Section 43 of the Transfer of Property Act? 3. Whether the judgment of the lower appellate court was vitiated for non-consideration of relevant evidence?
Ratio Decidendi: 1. The court held that where a sale deed contains both plot numbers and a boundary, and the two do not tally, the boundary prevails. This is because the boundary provides a more accurate description of the land being conveyed. 2. The court held that the plaintiffs were entitled to the benefit of Section 43 of the Transfer of Property Act because they were purchasers for value without notice. The plaintiffs had paid good consideration for the land and were not aware that their vendor, Defendant No. 2, did not have a valid title to the land. 3. The court held that the judgment of the lower appellate court was not vitiated for non-consideration of relevant evidence. The court examined the evidence that the appellants claimed was not considered and found that it was not relevant to the issue of whether plot No. 44 was conveyed to the plaintiffs under Ext. 2.
Final Decision: The High Court dismissed the second appeal filed by Defendant No. 1.
G. B. PATTANAIK, J.
( 1 ) DEFENDANT No. 1 is the appellant against a reversing judgment in a suit for declaration of title, recovery of possession and realisation of mesne profits.
( 2 ) THE suit land measures Ac. 2. 72 appertaining to plot No. 44, khata No. 14 of mauza Sitarampur in the district of Koraput the boundary of which has been given in the plaint. Plaintiffs' case in a nut-shell is that on 20-11-1958 under a registered sale deed (Ext. 2) plaintiff No. 1 purchased the suit land along with some other lands from defendant No. 2 and also obtained delivery of possession through her husband (plaintiff No. 2 ). and ever since then plaintiffs are in possession till the land was attached in a proceeding under S. 145 of the Code of Criminal Procedure. It is the further case that while describing the plot numbers in the sale deed plot Nos. 21 and 50 were wrongly mentioned whereas the boundary that was given was in respect of plot No. 44 and what was delivered to the plaintiffs was plot No. 44. The plaintiffs applied for mutation and defendant No. 1 set up a false claim of possession over plot No. 44 and also made a report before the police whereafter a proceeding under S. 145, Code of Criminal Procedure, was initiated and the suit land was attached. Ultimately, the proceeding under S. 145 of the Code of Criminal Procedure was terminated in favour of defendant. No. 1 as per Ext. D and hence the plaintiffs filed the suit.
( 3 ) THE case of defendant No. 1 is that what was sold by defendant No. 2 to plaintiff No. 1 was the land covered by plot Nos. 21, 50 and 43 under khata No. 2 and plot No. 38 of Khata No. 1 and at no point of time plot No. 44 had been sold to said plaintiff No. 1. It is also alleged that plaintiffs have never been in possession of plot No. 44. On the other hand, defendant No. 1 purchased plot No. 44 on 28-7-1962 measuring an area of Ac. 2. 72 along with other plots in khata No. 14 under a registered sale deed (Ext. A) from defendant No. 2 and said defendant No. 2 delivered possession to defendant No. 1. Thus it is defendant No. 1 who continues to be in possession of the entire Ac. 10. 99 including the suit plot of AC. 2. 72 with effect from the execution of Ext. A. Further the said suit plot was mutated in favour of defendant No. 1 under Ext. Q and in the proceeding under S. 145, Code of Criminal Procedure, defendant No. 1 was found to be in possession of the same. It is the further case of defendant No. 1 that the suit land was a service tenure and had vested in the State prior to the alleged purchase by plaintiff No. 1 and, therefore, on the date defendant No. 2 sold the land to plaintiff No. 1 he had no saleable interest and thus plaintiff No. 1 did not acquire any right by virtue of the sale in her favour. Subsequently the land was settled with defendant No. 2 in 1962 and, therefore, defendant No. 1 got valid title by virtue of the sale in his favour under Ext. 4.
( 4 ) ON those pleadings the learned Trial Judge framed several issues and came to hold that the plaintiffs failed to establish that the suit land came within the boundary mentioned in the sale deed (Ext. 2) and, therefore, they had no right, title and interest over the suit land. It was also held that defendant No. 1 had acquired valid title under Ext. A. The learned Trial Judge further held that even if the suit plot came within the boundary mentioned in Ext. 2, but such a transfer could not confer any title on the plaintiffs as defendant No. 2 had no subsisting interest then the suit land having vested. The plaintiffs had carried an appeal which was registered as Title Appeal No. 22 of 1973. The lower appellate court set aside the judgment of the Trial Judge and remanded the matter to the trial court for fresh disposal with a direction that plaintiffs would be given an opportunity to take a survey-knowing commissioner for demarcation of the suit land. After remand, the plaintiffs took a survey-knowing commissioner and his report was exhibit
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