Bombay High Court
SHRI BABAURAO PANDURANG KALEversusSHRI POPAT MAHADU DABHADE (DECEASEDTHROUGH LEGAL HEIRS) AND ANOTHER
- Decided
- Disposal
- Dismissed
Holding
Section 43 of the Transfer of Property Act applies, but the second appeal fails for lack of a substantial question of law and is dismissed.
Summary
The appellant, originally Defendant No.1, challenged the judgment that upheld the plaintiff's claim as a bona‑fide purchaser of a 53‑are southern half of Survey No.144/1 based on a sale deed dated 3 April 1987 and the later acquisition of the original owner’s share. The core issue was whether Section 43 of the Transfer of Property Act applied, given the plaintiff’s knowledge that the land was ancestral joint Hindu family property. The High Court held that Section 43 was indeed applicable because the original transferor later acquired full title, but dismissed the second appeal as no substantial question of law remained, since the appellant’s arguments at this stage diverged from the pleadings before the trial and appellate courts. Consequently, the appeal was dismissed and the earlier decree affirmed.
Issues considered
- Whether Section 43 of the Transfer of Property Act, 1882 applies when the plaintiff knew the suit land was ancestral joint Hindu family property of the original defendant.
- Whether the plaintiff’s earlier challenge to the 1995 decree should affect the present suit.
- Whether oral evidence contrary to a written sale deed is admissible under Sections 91 and 92 of the Indian Evidence Act, 1872.
Legislation cited
- Indian Evidence Act, 1872 — s. 91, 92
- Transfer of Property Act, 1882 — s. 43
Subjects
- Section 43
- Transfer of Property Act
- bona fide purchaser
- ancestral joint Hindu family property
- sale deed
- oral partition
- evidence
- substantial question of law
- appeal dismissal
Judgment
Digitally
signed by
SHAGUFTA
SHAGUFTA QUTBUDDIN
QUTBUDDIN PATHAN
PATHAN Date: final SA-174-2006.doc
2026.08.17
17:58:11
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.174 OF 2006
WITH
INTERIM APPLICATION NO.17520 OF 2022
WITH
CIVIL APPLICATION NO.1099 OF 2010
IN
SECOND APPEAL NO.174 OF 2006
Baburao Pandurang Kale
Age about 64 yrs, Occ. Agriculturist
Residing at Kalewadi, Taluka Haveli, …Appellant/
District Pune Applicant
Versus
Popat Mahadu Dabhade (Since Deceased)
Through his legal heirs,
1a. Balu Popat Dabhade
Age about 40 yrs, Occ. Agriculturist
Residing at Charholi Bk. (Kalewadi),
Taluka Haveli, District Pune.
1b. Kailas Popat Dabhade
Age about 35 yrs, Occ. Agriculturist
Residing at Charholi Bk. (Kalewadi),
Taluka Haveli, District Pune.
1c. Tanaji Popat Dabhade
Age about 32 yrs, Occ. Agriculturist
Residing at Charholi Bk. (Kalewadi),
Taluka Haveli, District Pune
1d. Suman Popat Dabhade (Since Deceased)
through legal heirs
Respondent Nos. 1a to 1c, 1e and 1f herein
1e. Radhabai Eknath Thakur
Age about 29 yrs. Occ. Household,
SQ Pathan/Arya Chavan 1/21
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Residing at Charholi Bk. (Kalewadi),
Taluka Haveli, District Pune.
1f. Nanda Suresh Godse
Age about 37 yrs. Occ. Household,
Residing at Solu, Taluka Khed,
District Pune.
2. Kissan Govinda Dabhade (Since Deceased)
Through his legal heirs,
2a. Vilas Kisan Dabhade
Age about 48 yrs. Occ. Agriculturist,
Residing at Kalewadi,
Taluka Haveli, District Pune.
2b. Mangala Subhash Sendkar
Age adult, Occ. Household,
Residing at Manjari Bk., Popatwadi,
Taluka Haveli, District Pune.
3. Mr. Sham Harakchand Kolan
Age 61 years, Occupation Business
Residing at Alandi Devachi,
Taluka Khed, District Pune 412105
4. Mrs. Suvarna Rustum Somvanshi
Age 48 years, Occupation Housewife,
Residing at Gurukrupa Apartment,
NDA Road, Opposite Kakade Terrace,
Warje Malwadi, Taluka Haveli,
District Pune 411058
5. Mrs. Radha Sajjan Shelke
Age 28 years, Occupation Housewife,
Residing at Gosavi Galli, Lhamaswadi,
Taluka Kalamb, District Osmanabad, Pin 413507
6. Mr. Pradeep Baburao Jadhav
Age 24 years, Occupation Service,
Residing at Near Maruti mandir,
Devmurti, Jalna 431203 ...Respondents
SQ Pathan/Arya Chavan 2/21
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——————
Mr. Rohit Joshi for the Appellant/Applicant
Mr. Sanskar Marathe for the Respondent No.1
Mr. Shailendra S. Kanetkar for the Respondent Nos. 2a and 2b
——————
CORAM : SHARMILA U. DESHMUKH, J.
RESERVED ON : JULY 17, 2026
PRONOUNCED ON : AUGUST 17, 2026
JUDGMENT :
1. The Second Appeal is at the instance of the original Defendant
No 1 being aggrieved by the common judgment dated 25 th October
2005 passed by the First Appellate Court in Civil Appeal No.585 of 2002
filed by the Defendant No 1 and Civil Appeal No.591 of 2002 filed by
the Defendant No.2.
2. By order dated 10th March 2006, the Second Appeal was
admitted on the following substantial question of law :
“(i) Whether Section 43 of the Transfer of Property Act, 1882
is applicable especially when the original Plaintiff had
knowledge of the fact that the suit land was ancestral joint
Hindu Family property of the original Defendant No. 2 Kisan
and his two brothers, Ananda and Sopan ?
(ii) Whether the Courts below ought to have considered the
effect of the fact that the Plaintiff attempted to challenge the
SQ Pathan/Arya Chavan 3/21
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judgment and decree dated 20th October 1995 passed in
Regular Civil Suit No. 2209 of 1992 by preferring an Appeal,
and the Appeal was not entertained, as a result of which the
said decree may be binding on the original Plaintiff?
(iii) Whether the Courts below committed an error in not
appreciating that oral evidence of one of the ostensible
purchaser as against ostensible purchaser about the fact that
Sale Deed in question was not intended to be acted upon was
admissible in evidence under Section 91 and 92 of the Indian
Evidence Act, 1872, and therefore, benefit of such evidence
will enure to the original defendant No. 2?”
3. For the sake of clarity, the parties are referred to by their status
before the Trial Court.
4. RCS No. 843 of 1992 was instituted against the present
Appellant and Kisan Govind Dabhade, through his legal heirs, seeking a
declaration that the Plaintiff is the bona fide purchaser for value of the
suit land and is absolute owner in possession of the suit land and the
Defendants be permanently restrained from interfering or disturbing
the peaceful possession of the Plaintiff in the suit land. The suit
property was described in the plaint as piece and parcel of southern
half portion of land, i.e. 53 Ares out of the total area of 1 Hectare 6
SQ Pathan/Arya Chavan 4/21
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Ares, including pot kharab of 3 Ares from Survey No. 144/1 of village
Chowisawadi, i.e., previous Survey No. 943/1 of old village Charholi,
Taluka Haveli, District Pune.
5. The Plaintiff’s case was that the original Survey No. 943/1 and
other lands situated at village Chowisawadi were the ancestral
properties belonging to Hindu Undivided Family of the Defendant No 2
consisting of Defendant No. 2 i.e. Kisan Govind Dabhade and his
brothers Sopan Govind Dabhade and Ananda Govind Dabhade, whose
names were jointly recorded in respect of the said lands. The
Defendant No. 2 made a fraudulent representation that pursuant to
the oral partition prior to the year 1980 between him and his brothers,
the Defendant No 2 is entitled to the suit land and is in actual
possession and cultivation of the same. Vide registered sale deed
dated 3rd April, 1987, the Plaintiff and the Defendant No 1 jointly
purchased the suit land bearing Survey No 144/1 admeasuring 1 H 6
Are + 3 Ares for total consideration of Rs 25,000/, paid equally by the
Plaintiff and Defendant No 1, who were then put in joint possession of
the suit land.
6. After execution of the sale deed, the Plaintiff and the
Defendant No 1 mutually partitioned the suit land and southern half
portion admeasuring 53 Ares is allotted to present Plaintiff, who is in
SQ Pathan/Arya Chavan 5/21
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actual cultivation and possession of the same. The execution of sale
deed was confirmed by the Defendant No 2 in his written statement
filed in Civil Suit No 930 of 1989 filed by Sopan Dhabade against the
present Plaintiff and Defendants. It was pleaded that it was
subsequently revealed that the entire Survey No 144/1 admeasuring 1
Hectare 59 Ares was joint family property of Defendant No 2, Sopan
Dhabade and their deceased brother Ananda Dhabade and there was
no partition by metes and bounds and each were having 1/3rd
undivided share therein. Sopan has sold his 1/3rd share to third party in
the year 1986 and the balance land was belonging to Defendant No 2
and Ananda Dhabade, who had since deceased and his legal heir was
Baban Ananda Dhabade.
7. It was pleaded that the Defendant No 2 purchased the share of
Baban Dhabade by registered sale deed of 16 th October, 1989 and has
subsequently acquired rights and interest to feed the estoppel and the
Plaintiff has become absolute owner as per his sale deed dated 3 rd
April, 1987. The Defendants have colluded to deceive the Plaintiff and
grab his suit land, by seeking to mutate their names in respect of entire
portion of Survey No 144/1, and have attempted to create third party
rights.
8. In the written statement of Defendant No. 1, it was pleaded that
SQ Pathan/Arya Chavan 6/21
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the sale deed dated 3rd April, 1987 was a hollow sale deed in order to
save the property of Defendant No 2 from his brother Sopan. There
was no consideration paid for the sale transaction. The suit land was
never in cultivation of the Plaintiff, but was being cultivated by the
Defendant No 2. The Defendant Nos. 1 and 2 purchased 53 Ares out
of Survey No. 943/1 and 23 Ares out of Survey No. 943/3 from Baban
Ananda Dabhade on 16th October 1989, and the Plaintiff has no
concern with the said lands.
9. The legal heirs of Defendant No. 2 by their written statement
denied the claim of the Plaintiff.
10. The Trial Court framed the necessary issues including the issue as
to whether the Plaintiff proves that the suit land was jointly purchased
by the Plaintiff and Defendant No.1 from Defendant No.2 on his
fraudulent and erroneous representation by way of registered Sale
Deed dated 3rd April 1987 and whether the Defendants prove that the
Sale Deed dated 3rd April 1987 is sham and bogus document. The
Plaintiff examined himself and two witnesses, Santosh Chordiya and
Kaluram Dabhade, and relied upon the Sale Deed, mutation entry, the
statement of Defendants, etc. The Defendant No. 1 examined himself
and two witnesses, Vasant Tapkir and Nivrutti Rangnath Kale, who are
the attesting witnesses to the Sale Deed dated 3 rd April 1987-Exhibit
SQ Pathan/Arya Chavan 7/21
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96. The legal heirs of the Defendant No.2 failed to enter into the
witness box.
11. The Trial Court answered the issue of execution of sale deed
dated 3rd April, 1987 in favour of the Plaintiff. It observed that the
cross-examination of Defendant No. 1 is that after the Sale Deed dated
3rd April 1987 was executed, the son of Ananda, i.e., Baban, sold out his
portion to Defendant No. 1 and Defendant No. 2. It further noted the
representation of Defendant No. 2 that in view of the oral partition
prior to 1980 that he is in possession of 1 Hectare 6 Ares land is
supported by the version of Defendant No 1 that he is cultivating 1
Hectare 6 Ares land on behalf of Defendant No. 2, to which there is no
challenge by Kisan or his heirs. It further noted that in paragraph 14 of
the written statement, Defendant No. 1 has admitted the fact
regarding partition among Sopan, Ananda, and Kisan Dabhade, and
since the co-parcener Sopan as well as Baban have already sold out
their respective shares, it is proved that partition had already taken
place and therefore, Defendant No. 1 is now estopped from saying that
no partition had taken place. In view of the evidence on record, the
Trial Court held that the Plaintiff along with Defendant No. 1 has
purchased the suit property, i.e., 1 Hectare 6 Ares.
12. The Trial Court further tested the claim of the Defendant No. 1
SQ Pathan/Arya Chavan 8/21
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that the Sale Deed of 3rd April 1987 was a hollow Sale Deed. In view of
the evidence on record that Defendant No. 1 had affixed his signature
on the document and that the contents of the document were
narrated by him, the Trial Court opined that the Defendant No. 1
purchased the land along with the Plaintiff. It further noted the
testimony of the attesting witnesses admitting that they have signed
the Sale Deed as attesting witnesses and held that the execution of
the document is proved by Defendant No. 1 himself. It noted that
Defendant No. 2 has already admitted the execution of the Sale Deed
and the possession of the Plaintiff over the suit land and that the Sale
Deed was executed for legal necessity. It noted that the Defendant No.
1 has placed on record the certified copy of the plaint in Civil Suit No.
1818 of 1993 filed by Defendant No. 2a for cancellation of the Sale
Deed. On perusal of the plaint in Suit No. 1818 of 1993, the Trial Court
observed that there is no prayer in the suit that the Sale Deed dated 3 rd
April 1987 was sham and bogus and answered the issue in the negative
as regards the Sale Deed of 3rd April 1987 being sham and bogus.
13. In view of Sections 91 and 92 of the Evidence Act, the Trial Court
noted that no oral evidence contrary to the contents of the written
document can be considered. It held that adverse inference can be
drawn against the legal heirs of Defendant No. 2 who have not stepped
SQ Pathan/Arya Chavan 9/21
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into the witness box and concluded that the Plaintiff is a bona fide
purchaser. With these findings, the suit came to be decreed.
14. As against this, Civil Appeal No. 585 of 2002 was filed by
Defendant No. 1 and Civil Appeal No. 591 of 2002 was filed by
Defendant Nos. 2a and 2b, i.e., the legal heirs of Kisan Dabhade, which
came to be disposed of by the common judgment dated 25 th October
2005. The Appellate Court framed the necessary points for
determination, including the issue as to whether the Sale Deed dated
3rd April 1987 was nominal, sham, and bogus Sale Deed and whether
the subsequent purchase of the share of Ananda through his son,
Baban, perfected the title of the Plaintiff on the basis of the Sale Deed
dated 3rd April 1987 under Section 43 of the Transfer of Property Act.
15. Insofar as the findings on Section 43 of Transfer of Property Act
are concerned, the Appellate Court noted that Defendant No. 2 had
executed the Sale Deed in favour of the Plaintiff and Defendant No. 1
and had transferred the property for consideration purporting to be
the absolute owner of the property, whereas the Defendant No. 2 had
only 1/3rd share in the property and could transfer only his 1/3rd share
of the property. It noted that by a registered Sale Deed dated 16 th
October 1989, Defendant No. 2 with Defendant No. 1 purchased the
share of the third brother, Ananda, from his son, Baban, and the
SQ Pathan/Arya Chavan 10/21
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Plaintiff's case is that by subsequent purchase of Ananda's share, the
Defendant No. 2 became absolute owner of the entire property and
relied upon Section 43 of the Transfer of Property Act to hold that the
Plaintiff and Defendant No. 1 have perfected their title on the basis of
the Sale Deed in their favour executed by Defendant No. 2.
16. It noted the contrary argument by the Defendant No. 1 that for
attracting the provisions of Section 43, there has to be a fraudulent or
erroneous misrepresentation and by exercising that authority, the
property is required to be transferred. It was argued that when the
transferee has knowledge that the transferor has no perfect title,
Section 43 would not protect the right of such person and, therefore,
the provisions of Section 43 would not be applicable and of no help to
the Plaintiff. The Appellate Court noted the provisions of Section 43 of
the Transfer of Property Act and held that though initially the
Defendant No. 2 did not have the right to sell the entire property, by
virtue of subsequent acquisition of title, Defendant No. 2 acquired
absolute ownership over the entire property and there is an erroneous
misrepresentation by Defendant No. 2 that under the oral partition, he
became the owner. The Appellate Court opined that the requirements
of Section 43 of the Transfer of Property Act are fulfilled and the
subsequent purchase of the share of Ananda from his son Baban
SQ Pathan/Arya Chavan 11/21
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perfected the title of the Plaintiff and Defendant No. 1 on the basis of
the Sale Deed dated 3rd April 1987 and dismissed the Appeals,
upholding the judgment and decree of the Trial Court.
17. Mr. Joshi, learned counsel appearing for the Appellant, would
submit that before the Appellate Court an erroneous objection was
taken by the Defendant No 1 to the applicability of Section 43 of the
Transfer of Property Act, whereas Section 43 of the Transfer of
Property Act would apply in the present case. He submits that the
Appellate Court rightly held that Section 43 of the Transfer of Property
Act applies, however did not apply it in the correct perspective by
ignoring the fact that the subsequent Sale Deed dated 16 th October
1989 was executed jointly in favour of the Defendant No 1 and 2 in
respect of one-third share of Ananda. He submits that Defendant No 2
perfected his title only in respect of about 79 Are i.e. his 53 Are and
half of the balance by reason of sale transaction of 16 th October, 1989
i.e. about 26 Are. He submits that by reason of joint purchase by
Defendant No 1 and 2, the Defendant No 1 would be entitled to 53 Are
plus 26 Are being ½ share of 53 Are purchased from Baban increasing
the Defendant No 1’s holding.
18. He would point out paragraph 5 of the plaint, that it is an
admitted position that the Plaintiff and Defendant No. 1 jointly
SQ Pathan/Arya Chavan 12/21
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purchased the suit land measuring 1 Hectare 6 Ares. He submits that
the Defendant No. 2 had only 1/3rd share and it is only upon the share
of Ananda being purchased jointly by the Defendant No.1 and
Defendant No. 2 from Baban that, as far as Defendant No 2’s share is
concerned, the title was perfected, whereas in respect of the
Defendant No. 1's share under the Sale Deed dated 16 th October 1989,
the Defendant No. 1 became entitled to ownership right and,
therefore, the Appellate Court could not decree the suit in respect of
the Sale Deed dated 3rd April 1987.
19. Per contra, Mr. Marathe would submit that 53 Ares of Survey No.
144/1 was sold to the Plaintiff under the Sale Deed dated 3 rd April
1987, and possession was given. He submits that there is no specific
pleading in the written statement that the 53 Ares was not sold to the
Plaintiff and possession was not given as the original owner's legal
heirs have failed to contest the proceedings. He would further point
out that the issues framed by the Trial Court were restricted to the
issues which arose in the plaint as to whether the Plaintiff and
Defendant No. 1 jointly purchased the suit land from Defendant No. 2
on his fraudulent and erroneous representation by way of registered
Sale Deed dated 3rd April 1987. He submits that before the Trial Court,
the case of the Defendants, was that the Sale Deed dated 3 rd April
SQ Pathan/Arya Chavan 13/21
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1987 is sham and bogus, which they failed to prove.
20. He submits that the pleaded case of Defendant No. 1 is
completely different from the arguments being canvassed before this
Court. He submits that there was no suit filed by the Defendants to
claim ownership in respect of land in excess of 53 Ares by virtue of
purchase under the subsequent sale deed executed on 16 th October
1989. He submits that the ingredients of Section 43 of Transfer of
Property Act stood satisfied and there are concurrent findings in
favour of the Plaintiff.
21. He would point out that the Plaintiff had produced the written
statement filed by Defendant No. 1 in Civil Suit No. 930 of 1987,
wherein Defendant No. 1 had admitted the execution of the Sale Deed
of 1987, and there was no whisper about the fact regarding this sham
and bogus Sale Deed. He would further point out that the findings of
the Trial Court in favour of the Plaintiff as regards execution of sale
deed of 1987 and possession. He submits that these are findings of
fact which cannot be interfered in the Second Appeal, drawing support
from the decision of the Hon'ble Apex Court in the case of Vidhyadhar
v. Manikrao and Another1.
22. Mr. Kanetkar, learned counsel appearing for Defendant Nos. 2a
1 AIR 1999 SC 1441.
SQ Pathan/Arya Chavan 14/21
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and 2b, submits that the Plaintiff does not challenge the Sale Deed
dated 16th October 1989, and the effect of that sale deed was not
considered by the Appellate Court. He submits that by virtue of the
sale deed of 1989, the Defendant No. 1 was entitled to ½ share of
1/3rd share of Baban which was purchased by Defendant No. 1 jointly
with Defendant No. 2.
23. In rejoinder, Mr. Marathe would submit that the Defendant No. 1
seeks to take benefit of Section 43 of the Transfer of Property Act to
the extent to which the Defendant No. 2 had perfected the title and
draws attention of this Court to the findings of the Appellate Court
that by virtue of purchase of 1/3rd share, the Defendant No. 2 became
absolute owner of the entire property and has perfected the title.
24. I have considered the submissions and perused the judgment of
the Trial Court and the Appellate Court.
25. The first substantial question of law framed by the order of 10 th
March, 2006, was as regards the applicability of Section 43 of Transfer
of Property Act, 1882 in view of the knowledge of original Plaintiff
that the suit land was ancestral joint Hindu family property of
Defendant No. 2-Kisan and his brothers Ananda and Sopan. The learned
Counsel for the parties have addressed the Court only on the first
substantial question of law.
SQ Pathan/Arya Chavan 15/21
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26. The case of the Plaintiff was of ownership of southern half
portion of Survey No. 144/1 admeasuring 53 Are by virtue of joint
purchase from Defendant No 2 by sale deed of 3 rd April, 1987 and the
subsequent purchase in the year 1989 by the Defendant No 2 of
Ananda’s share, which perfected the title of Defendant No 2. The case
of the Plaintiff was therefore, based on Section 43 of Transfer of
Property Act which reads as under:
“43. Transfer by unauthorised person who subsequently acquires interest
in property transferred.—
Where a person fraudulently or erroneously represents that he is
authorised to transfer certain immoveable property and professes to
transfer such property for consideration, such transfer shall, at the option
of the transferee, operate on any interest which the transferor may
acquire in such property at any time during which the contract of transfer
subsists.
Nothing in this section shall impair the right of transferees in good faith
for consideration without notice of the existence of the said option.
Ilustration
A, a Hindu who has separated from his father B, sells to C three fields, X, Y
and Z, representing that A is authorised to transfer the same. Of these
fields Z does not belong to A, it having been retained by B on the
partition; but on B’s dying A as heir obtains Z. C, not having rescinded the
contract of sale, may require A to deliver Z to him.”
27. The statutory provision provides that where a person
fraudulently or erroneously represents that he is authorized to transfer
certain immovable property and does so, such transfer shall operate on
any interest which transferor may acquire in such property at any time
during which the contract of transfer subsist.
28. Interestingly, the defense of Defendant No. 1, present Appellant
SQ Pathan/Arya Chavan 16/21
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before the Trial Court was that the sale deed of 3 rd April, 1987 was
hollow sale deed and was not meant to be acted upon. The Defendant
No 1 denied the transfer of rights in the suit land by reason of the sale
deed of 3rd April, 1987 and claimed to have purchased 53 Are land
jointly with Defendant No 2 from Baban Ananda Dhabade under the
sale deed of 16th October, 1989 and also claimed to be in cultivation of
the entire suit land. The Defendants claimed ownership over the entire
Survey No 144/1 by reason of Defendant No 2’s share of 53 Are and the
subsequent joint purchase of the year 1989. There was no counterclaim
filed by Defendant No. 1, seeking declaration of ownership rights in the
suit land.
29. The Trial Court and the Appellate Court on appreciation of
evidence came to a specific finding of the sale of suit land being proved
under the sale deed dated 3rd April, 1987 by the Defendant No 2 in
favour of the Plaintiff and Defendant No 1. It held that the fact of
partition is proved and and admitted by Defendant No 1 himself in the
written statement. There are no submissions canvassed by Mr. Joshi to
demonstrate perversity in the findings of fact by the Courts. The
Plaintiff has therefore proved that by virtue of the sale deed dated 3rd
April, 1987, there was sale of Survey No 144/1 admeasuring 1 H 6 Ares
in favour of Plaintiff and Defendant No 1 jointly.
SQ Pathan/Arya Chavan 17/21
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30. The Appellate Court framed the relevant point as to whether
the subsequent purchase of share of Ananda perfected the Plaintiff’s
title by sale deed of 1987 under Section 43 of Transfer of Property Act.
The Appellate Court accepted the Plaintiff’s arguments of applicability
of Section 43 of Transfer of Property Act as the Defendant No 2 by the
subsequent purchase perfected his title. The rival argument of
Defendants disputed the applicability of Section 43 of Transfer of
Property Act to claim that there was no erroneous representation and
the Plaintiff had knowledge that Defendant No 2 had no perfect title.
31. The question of law as framed in the Appeal Memo qua Section
43 of Transfer of Property Act reads as under:
“ 8. Whether both the Learned Court below erred in holding that
all the requirements of Section 43 of Transfer of Property Act are
fulfilled by the Plaintiff notwithstanding the fact that Plaintiff has
knowledge that the suit property is ancestral Joint Hindu Family
property of Defendant No 2, Kisan Govinda Dabhade and his
brothers, Sopan Govinda Dabhade and Ananda Govinda Dabhade.”
32. The first substantial question of law appears to have been
framed by this Court in view of the submissions at the time of
admission disputing the applicability of Section 43 of Transfer of
Property Act, when the Plaintiff had knowledge of the fact that the
suit land was ancestral joint property of original Defendant No. 2 and
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his two brothers. It is therefore evident, that at the time of admission
of the Second Appeal, the present Appellant had argued in consonance
with his pleaded case before the Trial Court, which led to framing of
the substantial question of law. However, during arguments, Mr. Joshi
has canvassed submission in support of the applicability of Section 43
of the Transfer of Property Act, claiming that by virtue of the
subsequent sale deed of 16th October, 1989, the Defendant No 1 and 2
jointly acquired Ananda's share, and by virtue of the sale deed of 1987
and of 1989, the Defendant No 1’s share in Survey No. 144/1
increased. This submission is not part of the pleadings and was not the
Defendant No 1’s case before the Trial Court or the First Appellate
Court. In the pleadings, the Defendant No. 1 had set up a completely
different case of the sale deed of 3 rd April, 1987 being nominal sale
deed and no right being acquired either by Plaintiffs or Defendant No.
1. There was no counterclaim filed by the Defendant No. 1, claiming
enhanced share in Survey No. 144/1 based on the subsequent sale
deed of 16th October,1989.
33. The submissions of Mr. Joshi are contrary to the pleadings, the
evidence, and the submissions canvassed before the Trial Court and the
Appellate Court, and even at the time of admission of Second Appeal.
Even accepting that this Court is empowered to hear the appeal on any
other substantial question of law not formulated by it, if it is satisfied
SQ Pathan/Arya Chavan 19/21
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that the case involved such question, the question of law should arise
from the pleadings and evidence on record. Accepting the arguments
of Mr. Joshi would amount to considering a completely new case about
the extent of right of Defendant No 1 in Survey No 144/1, when there
is no counter claim filed by the Defendant No 1 seeking declaration
about the extent of his right and contrary case being set up before the
Trial Court. A completely new case cannot be put forth as substantial
question of law at the stage of Second Appeal.
34. In such peculiar facts, if the question of law is considered, it
cannot be now doubted, in view of Mr. Joshi's submissions, that Section
43 of the Transfer of Property Act was in fact applicable, and by virtue
of subsequent transaction of 16 th October, 1989, Defendant No 2 had
perfected his title in respect of Survey No. 144/1. As there was no
pleading and no submissions canvassed as to the extent of the land to
which Defendant No 2had perfected his title, no substantial question
of law arose or was framed for consideration in that regard. It was
open for the Defendant No. 1 to file counterclaim or independent
proceedings claiming an enhanced share by virtue of the sale deed of
16th October, 1989, which has not been done.
35. The suit filed by the Plaintiff was for declaration that he was the
bona fide purchaser for value of the suit land and absolute owner in
possession of the suit land, i.e. southern half portion of Survey No.
SQ Pathan/Arya Chavan 20/21
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144/1. The sale deed of 3rd April, 1987 has been proved by the Plaintiff,
and consequently, the sale transaction. In the absence of any pleading,
there was no issue framed as regards the extent of land, in which the
Plaintiff could claim his rights under the sale deed of 3 rd April, 1987. For
the first time, without any pleading, at the stage of the Second Appeal,
an issue which is fact laden cannot be raised.
36. In view of the changed stand taken by the Defendant No. 1 at
the Second Appeal stage, there are no arguments canvassed as regards
the other substantial question of law, which were also framed by
reason of the Defendant No 1’s earlier stand of non-applicability of
Section 43 of the Transfer of Property Act. As the Defendant No 1 has
now attempted to argue a case which was not his pleaded case before
the Trial Court and was not an issue for consideration, and has
accepted the applicability of Section 43 of Transfer of Property Act, no
substantial question of law arises. Resultantly, Second Appeal fails and
stands dismissed.
37. Applications do not survive for consideration and stand disposed
of.
[SHARMILA U. DESHMUKH, J.]
SQ Pathan/Arya Chavan 21/21
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