Sultan Ahmed V. Mohd Wazidullah 39 DLR, 1987 329

Fact in Brief:

The petitioner instituted a title for declaration of title and recovery of possession after evicting the opposite parties from the suit land on the allegations, inter alia that the plaintiff got settlement of suit land along with other lands measuring 3 areas from Government. The petitioner got possession therein from the survey of the Government that the opposite party wanted to purchase the suit land from the plaintiff but as the plaintiff did not agree to sell the opposite parties. The petitoner  started constructing hut and cogging ditches and tank  in the suit land that the opposite parties there attended him to dispossess from the land. Then the opposite parties contested the suit by filing written statements as the additional written statements denying material allegation made in the plaint. The petitioner obtained the rule against the judgment and decree passed by the learned Subordinate Judge.  

Issues:

Whether the plaintiff is entitled to get decree for khas possession in the suit land.

Whether the plaintiffs have got right, title and interest in the suit land?

Rule of Law:

Section 41 of the Transfer of the property Act 1882 read with Section 44 of the Evidence Act 1872.

Application to the fact

In sec.41 of the TP Act 1882 Which gives protection the purchaser from the benamider referring as follows- “Where the transfer was not authorized to make the transfer, the transfer shall not be voidable on the ground with the contest, express on implied . But, After taking reasonable case to ascertain. The transferor had power to make the transfer in good faith”

The decree obtained by the plaintiff in that suit was binding on the defendant on the ground that a decree against the benamider is binding on the real owner without considering the circumstances of the case leading to the decree. There was finding as to fraud by cross objection under 41 of the CPC.

The decree on the ostensible owner is binding on the real owner. 

In Rakha Chandra Das V Benecha Khatun the defendant need not file a separate suit for avoiding fraudulent decree and he can agritate these point is another collateral suit on proceeding 

When a decree is obtained by a owner practicing fraud, it is not necessary to separate suit for avoiding such decree, the said decree can be impugned in another on proceeding by a person aggrieved, the fraudulent decree in vices of the sec. 44 of the Evidence Act.

Decision:

 The Judgment and decree of the Lower Appellate court is set aside and sent back the appeal to that court for disposal in the light of the observations.

Conclusion:

It is encumbered on the transferee to show that he acted after taking reasonable case to ascertain as to whether the benamder had power to make transfer and he acted in good faith in obtaining the deed of reconveyance from the benamder.