Sau. Maya Namdeorao Kharodkar vs Bhagyashree Pramod Dave And 2 ...
2017 Latest Caselaw 5233 Bom

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH : NAGPUR.

                                              SECOND APPEAL NO.317 OF 2014

               APPELLANT:                                              Sau. Maya Namdeorao Kharodkar, 
                                                      Aged   about   55   years,   Occ:   Medical
                                                      Practitioner, R/o Sai Nagar, Amravati.
                                                                                                               
                                                           -VERSUS-

                  RESPONDENTS: 1.                                      Bhagyashree Pramod Dave,
                                                                       Aged about 54 years, Occ. Household,
                                                                       r/o Abhinay Colony Shegaon Road,
                                                                       Amravati.
                                                       2.              Sharad Gajanan Devrankar,
                                                                       Aged about 49 years, Occ. Business, 
                                                                       R/o Rajapeth Amravati.
               Appeal dismissed 3.                    Avinash Madhavrao Palsodkar,
               against R-3 as                         Aged about 52 years, Occ. Contractor
               per order 
               dt.11/2/2016.                          r/o Camp Amravati.
                                                                                                                       

              Shri A. M. Sudame, Advocate for the appellant.
              Shri  J. T. Gilda, Advocate for the respondent no.1.


                                                  CORAM: A.S. CHANDURKAR, J.

DATED: 31 . JULY, 2017.

st

ORAL JUDGMENT :

1. In view of notice for final disposal issued earlier, the

learned Counsel for the parties have been heard on the following

substantial question of law:

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Whether the defendant no.3 has proved that she was a bona fide purchaser of the suit property on 15th April, 1998 and has satisfied the ingredients of Section 51 of the Transfer of Property Act, 1882 for being entitled for any relief?

2. The facts giving rise to this second appeal are that the

respondent no.2 herein - defendant no.1 was the owner of the suit

property which is plot bearing No.12 admeasuring about 2700

sq.ft. On 29-11-1994, the respondent no.1 herein - original

plaintiff purchased this plot from the defendant no.1 for

consideration of Rs.75,000/-. On account of the fact that the

plaintiff's husband was in service the plaintiff travelled with her

husband from place to place outside Amravati. On 14-7-2001

when the plaintiff and her husband visited the suit property, they

found the appellant - defendant no.3 in possession thereof. On

15-7-2001, the plaintiff issued a telegram to the defendant no.3 to

stop the construction work undertaken by her. She then

approached the defendant no.1 who was her vendor. After making

further enquiries it was found that on 21-8-1996 the defendant

no.1 had sold the suit property to the defendant no.2. Thereafter

on 15-4-1998, the defendant no.2 sold the suit property to the

defendant no.3. In aforesaid facts, the plaintiff on 15-12-2001

filed suit for declaration that the sale deed dated 21-8-1996 and

15-4-1998 were null and void and did not confer title on

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defendant no.3. She sought vacant possession of the suit property

along with a prayer for mandatory injunction that the construction

made by the defendant no.3 be directed to be demolished.

3. The defendants filed their written statement. The

defendant no.1 took the stand that the sale deed in favour of the

plaintiff was a nominal document. The defendant no.2 in his

written statement pleaded that after making due enquiries, he had

purchased the suit property from the defendant no.1. The

defendant no.3 filed reply to the application for temporary

injunction that was moved by the plaintiff and in that reply a stand

was taken that she was a bona fide purchaser for valuable

consideration having purchased the same from the defendant no.2.

It was pleaded that initially the defendant no.3 had purchased plot

no.11 and thereafter the suit plot which was adjoining. It was

further pleaded that after obtaining a loan, the defendant no.3 had

started construction on both the plots. The defendant no.3 adopted

this reply as her written statement.

4. After the parties led evidence, the trial Court held that

the plaintiff had proved that she was the owner of the suit plot by

virtue of sale deed dated 29-11-1994. It was further held that the

defendant no.2 was not a bona fide purchaser and that the

defendant no.3 had no title to the said plot. Accordingly, on

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22-12-2006 the trial Court decreed the suit and directed the

defendant no.3 to deliver vacant possession to the plaintiff by the

end of March, 2007. The sale deeds in favour of the defendant

nos.2 & 3 were declared to be null and void.

5. The appeal preferred by the defendant no.3 was also

dismissed on 11-3-2014 after recording finding that the defendant

no.3 was not entitled for any compensation as claimed under

Section 51 of the Transfer of Property Act, 1882 (for short, the

said Act). Being aggrieved the defendant no.3 has filed this appeal.

6. Shri A. M. Sudame, learned Counsel for the appellant

submitted that though it was claimed by the plaintiff that she had

purchased the suit plot on 29-11-1994, her name was not mutated

in the revenue records. The defendant no.3 who was already the

owner of plot no.11 made necessary enquiries and on being

satisfied of the title of the defendant no.2 purchased the adjoining

plot from the defendant no.2 on 15-4-1998. She had thereafter

undertaken construction work after the amalgamation of both the

plots. The entire action of the defendant no.3 was in good faith

and as it had now been found that the plaintiff had better title

than the defendant no.3, she was entitled for compensation in

terms of Section 51 of the said Act. It was also urged that the

plaintiff was never in possession of the suit property nor had she

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acted as a prudent owner of the same. The learned Counsel in

support of his submissions placed reliance upon the decisions in

Lachmi Prasad v. Lachmi Narain and another AIR 1928 Allahabad

41, Kausabai vs. Gayabai 2010 (4) Mh.L.J. 46, and R.V.E.

Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P.

Temple and anr. (2003) 8 SCC 752. It was, therefore, submitted

that the defendant no.3 was entitled to be duly compensated in

law.

7. Per contra, Shri J. T. Gilda, learned Counsel for the

respondent no.1 vehemently opposed the aforesaid submissions. At

the outset, he submitted that there were no pleadings with regard

seeking any benefit of the provisions of Section 51 of the said Act

at the instance of the defendant no.3. He submitted that in the

reply to the application for temporary injunction at Exhibit-19, it

was merely stated that the defendant no.3 was a bona fide

purchaser for valuable consideration. In para 5 of the said reply, it

was stated that the defendant no.3 be permitted to complete the

construction and that she would abide by the final decision in the

proceedings. According to him, though the application for

temporary injunction had been rejected, the defendant no.3

continued with the construction at her own risk. Referring to the

deposition of the defendant no.2 it was submitted that no public

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notice was ever issued before the defendant no.3 purchased the

suit property. In any event, it was submitted that the requirements

of Section 51 of the said Act had not been met so as to enable the

defendant no.3 to claim any benefit there from. To buttress his

submission, the learned Counsel placed reliance on the following

decisions Daya Ram and others vs. Shyam Sundari and others AIR

1965 SC 1049, R. S. Maddanappa v. Chandramma AIR 1965 SC

1812, Ramaji Batanji v. Manohar Chintaman and others AAIR 1961

Bombay 169, Bajrang @ Hanumant vs Babubai & others 1997(2)

Mh.L.J. 855, Subaitha Beevi v. Mrs. Yvonn Thambi and another A I

H C 3763 and Smt. Vasanthamma v. Siddaveerappa & ors AIR 2011

Karnataka 54. It was thus, submitted that there was no merit in

the appeal

8. I have heard the learned Counsel for the parties at

length and I have perused the records of the case. It has been

found by both the Courts that the plaintiff had proved her title on

the basis of sale deed dated 29-11-1994 (Exhibit-51) executed by

the defendant no.1. The record further indicates that the

defendant no.3 in para no.3 of her reply to the application for

grant of temporary injunction (Exhibit-19) had stated that after

making due enquiries and by verifying the documents of title

deeds, she had purchased the suit property and was thus, a bona

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fide purchaser for valuable consideration. There is no plea taken in

the said reply with regard to seeking benefit of the provisions of

Section 51 of the said Act. This fact has been noted even by the

first appellate Court and thereafter it proceeded to consider the

aforesaid aspect of the matter. Under provisions of Section 51 of

the said Act, a person making improvements in the property

should have acted believing in good faith that he is absolutely

entitled to the property. What actions are taken believing in good

faith would depend on the facts of each case and hence, the

importance of necessary pleadings in that regard. A general belief

that the party was a bona fide purchaser for valuable consideration

without any further details would not suffice the requirements of

making out a case for grant of compensation under Section 51 of

the said Act. Hence, the absence of pleadings that the defendant

no.3 believed in good faith that she was absolutely entitled to the

property is a big handicap in her effort to seek compensation

under Section 51 of the said Act.

9. The evidence on record led by the defendant no.3 who

was the purchaser of the suit property indicates that before

executing the sale deed in favour of the defendant no.3, no public

notice came to be issued. It was also admitted that neither he nor

the defendant no.3 were present when the sale deed was executed.

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He further admitted that after receiving the telegram at Exhibit-52

from the plaintiff, no attempt was made to contact the plaintiff nor

was any enquiry made in the office of the Sub Registrar with

regard to the plaintiff's sale deed.

10. In Bajrang @ Hanumant Tatyaba Kakade (supra), the

test that has to be applied to find out if the purchaser acted bona

fide and took reasonable care and caution in making enquiry into

the title of the property has been referred to. In paras 5 and 6 of

said decision, it has been observed thus:

"5............................................................ The oft quoted and well known passage is reiterated in Bailey vs. Barnes, (1984) 1 Ch. 25, 35 which aptly describes the obligation of the vendee before the purchase and that reads thus :

"A purchaser of property is under no legal obligation to investigate his vendor's title. But in dealing with real property, as in other matters of business, regard is had to the usual course of business; and a purchaser who wilfully departs from it in order to avoid acquiring a knowledge of his vendor's title is not allowed to derive any advantage from his wilful ignorance or defect which would have come to his knowledge if he had transacted his business in the ordinary way."

6. The aforesaid is the test which has to be applied to find out whether the purchaser acted bona fide and took reasonable care and caution in making usual enquiry into the title. If he succeeds in showing that even if he

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had transacted the business in ordinary way he was not in a position together that there was none other owner than the vendors, then, such vendee could be described as bona fide purchaser. On the other hand, if while transacting the business in the ordinary way the vendee would have come to know that there were owners other than the vendor, it cannot be said that such vendee has acted bona fide".

If the evidence led by the defendant no.3 is tested on

the aforesaid touchstone, the same falls short for holding that the

defendant no.3 had acted believing in good faith and had taken

reasonable care and caution before purchasing the property.

11. The plea as raised by the defendant no.3 with regard

to absence of mutation entries in the name of the plaintiff cannot

further her case inasmuch as the mutation entries are taken for

fiscal purposes and cannot be treated as documents of title.

Merely on the ground that the plaintiff had not got any mutation

entry made in her favour pursuant to purchasing the suit property

would not dispense with the necessary enquiries that are required

to be made by a purchaser who believes in good faith that he is

absolutely entitled to the same. The expressions "believing in

good faith" and "absolutely" entitled indicate the nature of

enquiries required to be undertaken by a purchaser who seeks to

rely upon the provisions of Section 51 of the said Act. As noted

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above, the husband of the defendant no.3 in his deposition

admitted that they had not responded even to the telegram issued

by the plaintiff which inaction was not expected of a bona fide

purchaser. In aforesaid facts, therefore, the decisions relied upon

by the learned Counsel for the appellant do not support the case

of the defendant no.3.

12. Thus, from the aforesaid, I find that the defendant

no.3 failed to lead any evidence whatsoever so as to satisfy the

ingredients of Section 51 of the said Act for being entitled to the

relief of compensation. It is to be noted that in the reply to the

application for temporary injunction the defendant no.3 took the

stand that she be permitted to go ahead with the construction

which was to be subject to final decision of the suit. The

substantial question of law as framed is answered against the

appellant. Consequently, the appeal is liable to be dismissed.

Accordingly, the second appeal stands dismissed with no order as

to costs.

13. At this stage, the learned Counsel for the appellant

seeks continuation of the interim relief that was granted while

issuing notice.

14. As interim protection was operating since 25-07-2014,

the same shall continue to operate for a period of six weeks from

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today. It shall cease to operate automatically thereafter.

JUDGE

//MULEY//