SESHUMULL M SHAH Vs. SAYED ABDUL RASHID

JUDGEMENT

(1.) This second appeal has been preferred by defendant No.1 arising out of the suit filed by respondent-plaintiff for declaration of title and possession in respect of suit lands as also damages for the cutting of the Tamarind tree by defendant No.1. The trial Court as well as the appellate Court have concurrently found in favour of the plaintiff and decreed the suit. Aggrieved by the judgment and decree passed by the appellate Court, namely, the Court of Principal Civil Judge, Kolar, dated 7-1-1980 in Regular Appeal No.23/ 1978, this appeal has been preferred.

(2.) The facts of the case may be briefly noticed : The plaintiff was admittedly the mother-in-law of defendant No.2. Defendant No.1 is a purchaser from defendant No.2 of the suit lands. The case of the plaintiff is that her husband was an Engine Driver and she used to reside with him. By a registered sale deed, dated 29/03/1936, the plaintiff acquired title to the suit lands in consideration of her mehr dues. She was in peaceful possession and enjoyment of the same. Her son was also employed, and therefore for the management of the said property, she entrusted the same to defendant No.2, who was the husband of her daughter Zeenathunnisa. Defendant No.2 managed the properties and paid the rentals etc., out of the produce. Since, 1946 the plaintiff has been staying with her son at Arakonam. In the year 1953 defendant No.2 also left for Bangalore. Her case is that in the year 1968 when her son went to pay rent for the suit land, the Patel refused to accept the rent on the ground that suit lands were recorded in the name of the plaintiff. Her son made enquiries from the Taluk Office and the records disclosed that the Patta in respect of the suit land was in the name of defendant No.2. The plaintiff wrote to the authorities that recording of the name of defendant No.2 against the suit land in the revenue records was brought about by fraudulent means by defendant No.2 since she was the owner of the property. Since the plaintiff was an old lady unable to look after herself and she had also sustained a fracture recently, she appointed her son as her power of attorney to look after her affaiRs. It is the plaintiff's case that she never consented to the transfer of her interest in the suit lands in favour of defendant No.2 her son-in-law and the entry in the revenue records were got made by defendant No.2 by fraudulent means. She had never executed any registered document transferring her interest in favour of defendant No.2. She also came to know that defendant No.2 had sold the suit land to defendant No.1-appellant herein. It was submitted that the said sale was illegal and void and conferred no title upon defendant No.1. This sale admittedly took place on 27/08/1969, and the sale deed has been marked as Ex. D.4. Her further grievance in the plaint was that defendant No.1 had cut the Tamarind tree and had caused loss to her. She, therefore, claimed damages to the tune of Rs. 1,500/-for cutting of the tree. On these averments, it was prayed that the Court may be pleased to pass a decree declaring her title to the suit lands and for recovery of possession of the same. In addition, the Court may pass a decree for damages against defendant No.1 for cutting of the tamarind tree.

(3.) Defendant No.1 filed a written statement stating that the plea of the plaintiff was wrong. She was never in possession of the suit lands. It was his case that the plaintiff herself gave a written application to the Tahsildar, Bangarpet, relinquishing her rights in the suit lands. In view of the application made by the plaintiff herself, defendant No.2 was recorded in the revenue records as the owner of the suit land. He was therefore the ostensible owner of the suit land and this was to the knowledge of the plaintiff. It was further pleaded that defendant No.2 had with him all the documents of title. When defendant No.2 offered to him the suit lands for sale, he made reasonable enquiries, acted in good faith and agreed to purchase the property for a consideration of Rs. 6,000/-. Ultimately, a registered sale deed was executed on 27th of August, 1969. It was the case of defendant No.1 that the sale deed was executed with the consent of the plaintiff. After execution of the sale deed, defendant No.1 was put in possession of the suit lands. His grievance was that after the death of the wife of defendant No.2, who was the daughter of the plaintiff, the plaintiff's son, who secured from her a power of attorney to look after her properties was now trying to grab the suit lands. In any event, it was averred that the suit was barred by limitation. Cutting of the tamarind tree was denied. It was further pleaded that in any event, defendant No.1 being a bona fide purchaser for valuable consideration from an ostensible owner not having notice of the real owner was protected u/S.41 of the Transfer of Property Act and, therefore, no decree could be passed against him.