SADHOB BHOTRA Vs. HORI BHOTRA

JUDGEMENT

(1.) THE plaintiff is in appeal against the reversing decision of the learned Additional subordinate Judge, Jey-pore. The plaintiff had sued for title and recovery of possession of the disputed property upon ejectment of the defendant therefrom. The disputed property admittedly belonged to one Hori Bhotra and his brother arjuna who happen to be sons of one Phagunu Bhotra. Hari and Arjuna had previously mortgaged the disputed property with one Jhitru. The land was thereafter again mortgaged and it was sold to the plaintiff for a consideration of rupees four hundred under a registered sale deed dated 8th of March, 1965. The plaintiff redeemed the mortgage and obtained possession. There was a proceeding under Section 145, Code of Criminal Procedure which terminated in favour of the defendant Hence the suit. The defendant claimed that he had purchased the disputed property from Hari and his brother for Rs. 140/- in cash and five putties of paddy in kind in 1956 and was cultivating possession since then. It was pleaded that the plaintiff had full knowledge of the prior sale in favour of the defendant as also the defendant's possession. Thus the sale did not confer any title on the plaintiff because the plaintiff's vendor had lost title by the time of sale under the registered sale deed. The learned trial Judge found that the title had vested on the plaintiff under his purchase by Ext. 1 and the story of possession by the defendant through an unregistered sale deed was not accepted. The learned appellate Judge reversed the decree of the trial Court by applying Section 53-A of the Transfer of property Act to the case. The reversing decision of the lower appellate Court is assailed in second appeal.

(2.) IT is contended " by Mr. Murty that the lower appellate Court was in error in applying the principles of Section 53-A of the Transfer of Property Act though such plea had not specifically been raised in the written statement and no issue had been struck. Section 53-A provides:

(3.) THE appeal succeeds. The judgment of the lower appellate Court is vacated and that of the trial Court is restored. There is no appearance for the respondent in this case in spite of notice. Interest of justice would be adequately served if the parties are called upon to meet their respective costs throughout.