G.S Sial, Member:— This is a second appeal against the orders of the learned Additional Commissione/r, Va-ranasi Division, arising out of a case under Section 229-B of the U.P.Z.A and L.R Act.
2. Briefly, the facts of the case are that the plaintiffs brought a suit for eclaration that they are Bhumidhar roveholders to the extent of ½ share on the disputed plot. Though the pe-igree is not given in the plaint, a short redigree is given below for facility of eference:—
3. The plaintiffs are the transferees from dar Prasad on the basis of the sale deed dated May 29, 1965. In 1969 when they checked up the revenue papers it was found that the land was exclusively recorded in the name of the defendant appellants who are transferees from Lalta's son Chhakkan along with two other defendants who are respondents in the present case. The defence was that Chhakkan transferred ⅓rd share of the disputed land in favour of the present appellants and ⅓rd continued to remain with him.
4. It was also pleaded that in a suit No. 44 of 1957 in the court of Munsif, Chhakkan was held to be sole owner of the property in dispute. It is also admitted between the parties that after the death of Ram Sunder the name of Lalta alone came to be recorded in the revenue record and his brother's name was not recorded and thereafter Chhakkan's name came to be recorded over the disputed land and Har Pd. never objected to it. The plea of Section 41 of the Transfer of Property Act was also taken in defence. Both the courts below have decreed the suit of the plaintiff. Hence the defendants have now come up in second appeal.
5. The learned counsel for the defendant appellants submitted that the trial court has recorded a finding in respect of Section 41 of the U.P Act that it is not available to the appellants. The lower appellate court has not considered this point at all. He argued that the application of Section 41 goes to the root of the case. He referred to A.I.R 1963 (S.C) 1917 wherein it has been observed that the question of bona fide purchaser has to be considered when such a plea has been taken and if no decision is given to this question, the finding of the courts below will not be binding on the second appellate court. According to him in this case there is no finding by the lower appellate court at all that the appellants are not bona fide purchasers and, therefore, the benefit of Section 41 should be given to them. Further the trial court has given a finding but has misdirected itself to the actual impact of Section 41 of the T.P Act and the finding is based on conjecture and surmises and irrelevant considerations which have nothing to do with Section 41. He stated that the appellants had taken all reasonable care to ascertain the title of the vendor and after ascertaining the facts they have purchased the land in dispute. Therefore the appellants are fully entitled to get the benefit of Section 41 of the T.P Act. He also referred to 1961 Patna 16 in support of his case. He argued that even in the case of co-sharer the transfer by an ostensible co-sharer was valid and cited 1935 Oudh 437 to this effect. The learned counsel further submitted that the case of the plaintiff respondents was that they were coparcenary and as the property belonged to the undivided Hindu family there was no right in the ostensible owner to transfer the property. Against this, he argued that there is no concept of undivided Hindu family under the Z.A and L.R Act and in other words the principle of Hindu Law will not apply. In this behalf he referred to 1970 R.D 149. He, therefore, submitted that under the circumstances the appeal should be allowed and the case remanded back to the trial court for a finding whether the appellants are bona fide purchaser under Section 41 of the T.P Act.
6. The learned counsel for the respendent submitted that the trial court has held that the defendant appellants were not bona fide purchasers to the property. He referred to the judgment of the trial court and stated that it has given the reason in support of the view that the defendants had knowledge that the land belonged to Ram Sunder, who had two sons, further D.W 4, who is appellant, himself, has admitted that the land in suit was the ancestral property. Their witnesses have also admitted that the property was ancestral and, therefore, the trial court has rightly come to the conclusion and given a finding of fact tha; the defendant had knowledge that the property was ancestral and therefore, no benefit of Section 41, T.P Act can be given to him. He stated that the name of Lalta was recorded in a representative capacity and that is the reason why Chhakkan has not come to witness box to support the defendants case. Both the courts below have held that Lalta and Har Prasad were Members of joint Hindu family and both were entitled to get 1.12 the share of Ram Sunder. Further the judgment of the lower appellate court being a judgment of affirmance it was not necessary for the lower appellate court to give finding on the question whether defendant appellant was bona fide purchaser. He referred to 1967 (S.C) 1125 in support of his contention.
7. I have considered the arguments and gone through the record of the case as well as the rulings referred to above. The sole controversy to be determined in this case is whether the appellants are bona fide purchasers for value from the ostensible owner and are entitled to the protection accorded by Section 41 of the Transfer of Property Act. It is not denied that Chhakkan the vendor was the only recorded tenureholder of the land in dispute. The contention of the plaintiff respondents was that the property was ancestral one and the name of Chhakkan was recorded in a representative capacity and the appellants had knowledge of this fact. The trial court discussed the various circumstances of the case and reached the conclusion that the present appellants were not entitled to the benefit of Section 41 of the T.P Act. A perusal of the judgment of the lower appellate court reveals that it has failed to decide this basic point involved in the case. Apparently, Chhakkan who sold the property to the appellants was recorded in the revenue papers for a long time. In litigation before the Civil Court, though not between the parties, the title of Chhakkan was upheld. The plea of the appellants that they exercised due diligence and all possible care to ascertain the title of the ostensible owner does not appear to be devoid of force and in any event a finding on the plea of bona fide purchase, within the scope of Section 41 of the T.P Act was to be recorded also by the first appellate court. The appellate court has, however, not considered this point at all. In the absence of any discussion or consideration of this material issue in the judgment of the lower appellate coulrt, its judgment cannot be regarded to be a proper judgment in accordance with the provisions of Order 41, Rule 31 of the C.P.C It has, therefore, become necessary to remand the case to the lower appellate court for deciding the appeal afrrsh after deciding this issue.
8. In the result, I allow the second appeal, set aside the judgment of the lower appellate court and remand the case back to it for deciding afresh ac cording to law, keeping in view the ob servations contained in the above para graph.
9. C.C.O No. 175 for R.D
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