SRI TANURAM KEOT Vs. SRI PADORAM KALITA

JUDGEMENT

(1.) A question of some importance arises for determination in this appeal by the Plaintiff. The same is whether the sale of interest in annual patta land would continue in favour of the purchaser even after the patta is made periodic. What had happened in this case was that the Plaintiff purchased the Defendant's interest over 3B -4K -9L on 9.2.65 at a sum of Rs. 2,000.00. This had admittedly been done when the patta was annual. The same was made periodic in 1974 -75 in the name of the Defendant. The Plaintiff prayed for mutation of his name in 1976 -77, but the same was ultimately rejected on 11.8.77. The present suit was thereafter filed on 21.9.77 to confirm Plaintiff's possession of the suit land on declaration of his title. The suit was initially decreed by the learned. Munsiff, but has been dismissed by the learned Assistant District Judge.

(2.) BEFORE proceeding to examine the legal question involved it may be stated that the case of the Defendant was that the transaction was one of usufructuary mortgage. As, however this Plaintiff had refused to give money if sale deed was not execute the Defendant had no alternative as he was hard -pressed for money both the Courts below have found the transaction as out and out a sale. This being a concurrent finding of fact and bused on the appreciation of the evidence on record, cannot be interfered with in this appeal. We have, therefore, to confine our attention to the legal question posed above. It may first be stated that as pointed out by this Court in Jainur Ali v. Chafina Bibi, AIR 1951 Gau20 there is no prohibition of transfer of annual pattas. This view was expressed after referring to Section 11 of the Assam Land and Revenue Regulation and Rule 1(c) of the Settlement Rules framed under the Regulation. This proposition has not been disputed by any of the learned Counsels. As to what right the transferee acquires in such a case was put thus by Thadani, C.J. in paragraph 9:

(3.) THIS being the position in law, let us see whether the Plaintiff could claim title over the suit land in the percent case even after the patta had been made periodic. It would bear(sic) to state that the Plaintiff had purchased the land which was covered by annual patta and what could have really been transferred then, was the right of user inasmuch as annual lease confers no heritable or transferable right. Shri J.N. Sarma appearing far the Plaintiff, contends that when the Plaintiff had purchased the land by Ext. 5 what was sold to him was a heritable right and the Plaintiff was even allowed to get his name mutated on the strength of this deed. Apparently, this right could not have been conferred in respect of an annual patta land. It is because of this that protection of Section 43, T.P. Act is being sought by the Plaintiff as the transferor acquired a larger interest in the land subsequently, which he had purported to transfer earlier. But for Section 43 to operate this is not enough. It has further to be seen whether the transferee had been misled or whether he had known that the transferee did not possess the right which he had sought to pass on to him. Shri S.N. Medhi draws my attention to paragraph 4 of the plaint wherein it is stated as below: