IMPORTANT POINT
For applicability of Section 43 of T.P. Act, conduct of transferor is immaterial even though he misrepresents to transferee.

Sreenivas Harish Kumar, J.—Interwoven transactions have led to examine the application of Section 43 of Transfer of Property Act (for short, “T.P. Act”) with respect to a sale transaction dated 14.08.1985.

2. This appeal has arisen out of judgment in Final Decree Proceedings No.05/2003 on the file of Senior Civil Judge, Bailahongal. The background may be briefly stated as follows:-

“02 acres 26 guntas of land and another small piece of land to the extent of 389 3/9 square yards in Survey No.443 of Bailahongal earlier belonged to one Channaveerappa Chanabassappa Jawali. On 01.09.1895 he leased out only 2 acres 26 guntas of land to Bailahongal Cotton Pressing Company Ltd., under a registered lease deed for 99 years. This company went into liquidation. During the liquidation process, one Shekharappa Veerupakshappa Metagud purchased the leasehold rights of the company. This lease being in force, the owner of the land, Channaveerappa Chanabassappa Jawali, sold the entire land including 389 3/9 square yards to one Raghavendra Kalamdani by executing a registered sale deed in the year 1912. On 25.05.1945, this Raghavendra Kalamdani sold this entire land to one Shivabasavayya Gadagayya Chikkmath. Challenging this sale transaction, Srinivas Kalamdani, S/o. Raghavendra Kalamdani filed a suit O.S. No. 421/1947 for partition. In this suit, his mother was defendant No.2. The Court which decided the suit, held that sale made by Raghavendra Kalamdani in favour of Shivabassayya Gadagayya Chikkmath did not bind 1/3rd interest of Srinivas Kalamdani and another 1/3rd interest of his mother. What remained to Shivabassayya Gadagayya Chikkmath was only 1/3rd interest in the entire land in Survey No.443.”

3. Srinivas Kalamdani initiated Final Decree Proceedings, F.D.P.No.01/1980 in respect of his 1/3rd interest in 389 3/9 square yards which was not the subject matter of the lease. In the course of these proceedings, Srinivas Kalamdani and his mother sold away their 2/3rd interest in respect of this land to Chikkamath family. Thus, this Final Decree Proceedings came to be closed and Chikkmath became the owner of the small piece of land measuring 389 3/9 square yards.

4. Despite all the above proceedings, the possession of 02 acres 26 guntas of land remained with Metagud family on the strength of their having leasehold rights.

5. On 14.08.1985, members representing Metagud family namely respondent No.12 Mallikarjun Metagud, respondent No.13 Rajashekhara Metagud and wife of respondent No.12 sold their 1/3rd interest on the western portion of 02 acres 26 guntas of land to the appellant, who is none other than the brother of respondent No.12 by executing a registered sale deed as per Ex.R-91. Respondents 12 and 13 got measured the entire lands sold to the appellant, fixed the boundaries, constructed a compound and delivered the possession sold by them to the appellant. The appellant claims to be in possession of this 1/3rd portion. The remaining 2/3rd eastern portion continued to be in possession of respondent No.12.

6. Respondents 1 to 5, representing Chikkamath family, initiated another final decree proceedings No.5/2003, in respect of 1/3rd share that remained to their family by virtue of decree in O.S.No.421/1947. In this final decree proceedings, the Court appointed a commissioner for measuring and demarcating the land. The appellant and the respondent No.12 questioned the legality of the order of appointing the court commissioner by filing an appeal, R.A.No.34/2007. When this appeal was pending, respondent No.12 and his son i.e. respondent No.13 purchased 2/3rd interest of Kalamadani family, which was represented by respondents 6 to 11 under a registered sale deed dated: 07.07.2007. It is stated that after respondents 12 and 13 purchased the interest of Kalamdani family, there was a collusion between respondent No.12 and respondents 1 to 5, which resulted in a compromise petition being filed in R.A.No.34/2007. According to this compromise