1. This appeal has been filed against the Judgment and Order dated 22/7/94 passed by the Assistant District Judge, Barpeta in Title Appeal No. 26 of 1993. By the Judgment he affirmed the earlier Judgment and Decree dated 16.10.93 passed by the Munsiff No. 2, Barpeta in title Suit No. 25 of 1992. The learned Munsiff dismissed the suit, Hence this Second Appeal. .
2. The following are the substantial question of law :-
(1) The Trial Court held that the sale of the land can not be termed as valid at the time of purchase as the suit land was Annual Patta land. The Appellate Court on the other hand came to the finding that the transfer was valid only during the period of subsistence of the annual lease and it cased to be valid as soon as the annual lease was converted to periodic patta and that the plaintiff can not acquire any right, title and interest over the suit land against the defendant. But both the courts below failed to decide, whether the plaintiff could claim right, title and interest over the suit land under the provision of Section 43 of the Transfer of Property Act?
(2) Whether on the face of the registered sale deed dated 6/3/68 duly executed by the predecessor-in-interest of the defendants in favour of the plaintiff, the doctrine of Estoppel operates a bar to the defendants from disputing the plaintiff's claim of right, title and interest over the suit land?
3. The brief facts are as follows :-
The suit land fall within the Tribal Belt and the plaintiff is a per permanent resident of the locality, even before constitution of the Tribal Belt. He purchased the suit land from i.e. Majhi Ram Boro, the Predecessor-in-interest of the defendant by a registered sale deed dated 6/1/68 for a consideration of Rupees Four thousand and obtained this possession of the land. The plaintiff knew at the time of purchase that the suit land was annual patta land. The plaintiff was in occupation of the land purchase by him. But the Vendor Majhi Ram Boro got the patta concerted into periodic sometime in 1984 in his won name. Thereafter. Majhi Ram Boro dies and the defendants, the heirs of Majhi Ram Boro died and the defendants, the heirs of Majhi Ram Boro threatened the plaintiff to dispossess from the suit land. Hence the suit was filed for declaration of title, confirmation of possession.
4. The defendants by filing Written Statement denied the sale made by Majhi Ram Boro. Their further pleas was that they have been all-along possessing the suit land. The plaintiff also filed two cases for mutation of his name, but that were rejected. The suit land being periodic patta land in the name of Majhi Ram Boro, the plaintiff can not claim any title to the land. Issue No. 6,7,8 and 9 are the relevant issues for the determination of the lis, which are quoted below :-
'6. Whether the plaintiff has in possession of the suit land since 6-3-68?
7. Whether the plaintiff has acquired any right, title and interest over the suit land as against the defendant?
8. Whether the defendants are estopped to claim right, title and possession over the suit land?
9. Whether the plaintiff is entitled to get decree as prayed for?
5. The learned Munsiff took up Issues No. 6,7 and 8 for discussion together. The learned Munisff found, inter-alia, as follows :-
(1) The revenue was paid by the plaintiff in the name of pattadar Majhi Ram Boro vide Exhibit 4 to 12.
(2) Exhibits 2 and 3 show that in year 1984 the suit land was converted into periodic patta in the name of Majhi Ram Boro.
(3) Since at the time of purchase, the suit land was annual patta land, hence the said transaction of the land can not be termed as valid. The subsequent conversion of land into periodic patta can not also make the earlier sale of the annual patta land valid.
(4) From the cross-examination of P.W. 1 we came to know that for the last one and half years the plaintiff is not in possession of the suit land.
6. Having arrived at this finding, the learned Munisff decided Issue No. 9 in favour of the defendant and dismissed the suit. There was an appeal being Title Appeal No. 26 of 1993 and the learned Judge held that the bar created by Chapter-X (Protection to Tribals) is not available in this particulars case. His finding is as follows :-
'It is revealed from evidence on record both from oral as well as documentary that there is not specific evidence so as to attract the provision of the Chapter -X of the Regulation. So there is not need for us to dilate on this respect.
7. In deciding the question of the validity of the sale, the lower appellate Court came to the finding that the suit is not barred by the Provision of Rule l(c) of the Assam Land and Revenue Regulation, 1886. In this connection the learned Appellate Court relied on AIR 1951 Assam 20 (Jaynur Ali v. Sotia Bibi) wherein it was held as follows :-
'It is clear that Rule l(c) does not prohibit transfer of annual patta, indeed it permits transfer but transfers are limited in their duration to the period covered by annual patta.'
8. In 1991 (2) GLJ 83 (Md. Safiruddin And Others, Appellants v. Uruka Kachari & Others, Respondent], 1951 Assam 20 (Supra). That paragraph is quoted below :-
'5. A Division Bench of this court in Jainur Ali v. Mt. Chafina bibi And Others, AIR 1951 Assam 20, held that the under the correct interpretation of Section 11 and Rule 1 (c) framed Assam And Revenue Regulation is that when an annual patta holder purports to transfer his ownership in such land for consideration, the transferee takes good title to the property subject only to the paramount title of the Government, i.e. to says, if the Government so chooses it may, as the expiry of the period of the annual patta refuse to grant an annual patta to the transferee, that, however, is a matter between the Government and the transferee and not a matter between the transferor and the transferee. According to their Lordships person holding annual patta can only transfer his limited right of user and on the sate of the sale the transferee would acquire only the subsisting title and interest of the transferor. It was, however, held that rights thus acquired would, therefore, expire with the expiry of the lease in favour of the transferor.'
The last line of the paragraph does not find place in the Judgment of AIR 1951 Assam 20 (Supra). In paragraph - 7 of that Judgment it has been held as follows :-
'7 There is not dispute that after the sale deed was executed the land was converted to periodic patta in the name of the defendants. Immediately on conversion even if any right was acquired by the plaintiffs in respect of the share of defendant No. 1, the said right extinguished as soon as the Government granted periodic patta in the name of the defendants.
That finding of the law laid down by the learned Single Judge is absolutely without reason or discussion. It is a common practice in Assam that annual patta-holder sell the land when he holds the annual patta and thereafter if it is converted into periodic patta in the name of the transferor and if the transferee in view of that loses the right that will encourage fraud and deception. Encouragement of fraud or deception or putting a premium on fraud or deception can not be the purpose of law and it is that aspect to the matter which must be borne in mind. The learned Single Judge also held that transfer of an annual patta is restricted in view of Section 11 of the Assam Land And Revenue Regulation. Let us have a look at Section 11 of the Assam Land Revenue Regulation as well as Rule 1 (c) of the Settlement Rules. Section 11 deals with the rights of settlement-holders. That Section reads as follows :-
Section 11 :- Settlement holder who is not a land holder shall have no right in the land held by him beyond such as are expressed in a settlement lease.
The definition of settlement holder is in Section 2(h) of the Regulation. That definition reads as follows :-
Section 2(h) 'Settlement-holder' means any persons, other than a proprietor, who has entered into an agreement with the Government to pay land-revenue, and includes a land-holder.
The land holder as distinguished from settlement-holder acquirers permanent, heritable and transferable right of use and occupancy as laid down in Section 9 of the Regulation subject to Clauses (a), (b) and (c) as mentioned in Section 9 of the Regulation.
9. Rule l(c) of the Regulation reads as follows :
'Rule 1 (c) 'An annual lease' means a lease granted for one year only and confers no right in the soil beyond a right of user for the year for which it is given. It confers no right of inheritance beyond the year of issue. It confers no right of transfer or of subletting and shall be liable to cancellation for any transfer or sub-letting even during the year of issue :
Provided that the State Government may waive their right to cancel an annual lease and may allow its renewal automatically till such time as the 'State Government may direct in those cases in which the land is mortgaged to Government or to a state-ponsored Cooperative Society.
10. The annual patta granted continues till it is cancelled by issuing necessary non-renewal notice as provided in Clause-3 of the annual patta itself. This aspect of the matter came up for considering before this Court in Second Appeal No. 84 of 1951, date of Judgment is 26.11.1952 (Md. Hajat Khan v. Kandarpa Kumar) and it was laid down as follows :-
'Rule 1. Clause (c) of this rule which provides about renewal does not in any way alter the conditions of the lease including the term by which its duration is fixed. It merely provides for the manner of renewal. If no intimation is given by either party about the termination of the lease by the date fixed in the deed of lease, the lease has to be renewed and the Government has to fix the land revenue? This clause is perfectly valid as held in the unreported decision in Md. Hajat Khan v. Kandarpa Kumar, dated 26-11-1952 in Second Appeal No. 84 of 1951.'
11. It will be seen in this case that only one annual patta was issued on 18.1.1968. Thereafter, there was no annual patta but the patta continued and the authority accepted the revenue as will be seen from the Exhibit - 4 which is dated 8.5.1969, Exhibit - 5 which is dated 10.7.1983, Exhibit - 6 which is dated 19/6/85, Exhibit - 7 which is dated 21.7.1979, Exhibit - 8 which is dated 19.6.1977, Exhibit - 9 which is dated 30.6.1980, Exhibit - 10 which is dated 18.7.1983, Exhibit - 11 which is dated 16.6.1984, Exhibit - 12 which is dated 14.5.1970 and all these revenues were paid by the plaintiff and it will be further seen from Exhibit 10 and 11 that even extra charge on local rate at the rate of 5% under rule 55 of the Assam Panchayat Financial Rules, 1974 was realised by the Panchayat. So the authority all-along considered that the annual lease subsisted and it not correct to say that it continued only for on year, as there was no valid cancellation of annual lease, that annual lease shall continue. The Government its wisdom and discretion did not consider it necessary to cancel the annual lease by issuance of non- renewal notice. If any authority is required for this proposition of law one may look at AIR 1951 Assam 91 (Malen Saikia. appellants. The State of Assam) wherein the law has been laid down as follows :-
'Where an annual patta has been issued to a person, unless a non-renewal notice, in-accordance with CI 3 of the form of the annual lease, is given by either party, an annual patta must be issued for the ensuing year. The fact that no fresh grant of annual patta has been made to the patta-holder is wholly immaterial (Mo/an Saikia v. The State of Assam, AIR 1951 Assam 91).
12. In AIR 1983 Assam 90 (Maheswari v. Upendra) It was pointed out as follows :-
That though the law does not recognise the transfer by an annual patta-holder as binding, but where there has been a defact transfer and somebody has come into possession by virtue of such transfer, the possession of the transferee is undoubtedly legal possession.'
13. Before we proceeded further it is pertinent to mention two other decision which have been cited by the learned Advocate for the Respondent :-
(1) 1983 (1) GLR 497 (Tanuram Keot, Appellant v. Shri Padoram Kalita, Respondent) wherein a Single Judge of this Court has held as follows :- 'Assam Land Revenue Regulation, 1886. S. 11 - Settlement Rules. Rule 1 (c) - Transfer of Property Act, Section 43 - Sale of interest in annual patta Land - Whether it will continue in favour of the purchaser even after the patta is made periodic Held - 'No.'
The protection Under Section 43 of the Transfer of Property Act was denied in the case in view of the fact that the plaintiff did know that the defendant could not have really sold his interest etc. in land. As Such it can not be held that the plaintiff was in any way misled by defendant. It is thus a case where the transferee knew as a fact that the transferor did not possess the title which he represented. Reliance was placed in AIR 1962 S.C. 847 (Jamma Masjid, Mercara, Appellant v. Kadimaniandra Deviah and Others, Respondents). The question which arose for determination in that case is noted in Paragraph - 6 of the Judgment, that is quoted below :-
'(6) The sole point for determination in this appeal is, whether a transfer of property for consideration made by a person who represents that he has a present and transferable interest therein, while he possesses, in fact, only a spes successionals, is within the protection of S.43 of the Transfer of Property Act. If it is, then on the facts found by the Courts below, the title of the respondents under Ex-III and Ex. IV must prevail over that of the appellant under Ex. A. If it is not, then the appellant succeeds on the basis of Ex. A'
Thereafter, in Paragraph - 7 Section 43 of the Transfer of Property Act has been quoted and thereafter the law has been laid down as follows :-
'Considering the scope of the section on its terms, it clearly applies whenever a person transfers property to which he has no title on a representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration. When these conditions are satisfied, the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not meantime been thrown up or cancelled and is subsisting. There is an exception in favour of transferees for consideration in good faith and without notice of the rights under the prior transfer. But apart from that, the section is absolute and unqualified in its operation. It applies to all transfers which fulfill the conditions prescribed therein, and it makes no differences in its application, whether the defect of title in the transfer arises by reason of his having no interest whatsoever in the property or of his interest therein being that of an expectant heir.'
14. An argument was advanced before the Apex Court that Section 6(a) of the Transfer of Property Act will be obliterated if Section 43 of the Transfer of Property Act is given effect too. Paragraph - 8 is quoted below :-
'8, The Contention on behalf of the appellant is that S.43 must be read subject to S.6(a) of the Transfer of Property Act which enacts that, 'The Chance of an heir apparent succeeding t all estate, the chance of a relation obtaining a legacy on the death of a kinsman or any other were possibility of a like nature, cannot be transferred.' The argument is that if S.44 is to be interpreted as paying application to cases of what are in fact transfer of spec, successions, that will have the effect of nullifying S.G(a) and that therefore, it would be proper to construe S.43 as limited to cases of transfers other than those falling within S.6(a). In effect, this argument involves importing into the section a new exception to the following effect: Nothing is this section shall operate to confer on the transferee any title, if the transferor had at the date of the transfer an interest of the kind mentioned in S.6(a).' It we accede to this contention, we will not be construing S.43, but rewriting it. 'We are not entitled', observed Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) 791J KB 954' to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.'
15. Thereafter in paragraph-9 the Supreme Court has pointed out as follows :-
'(9) Section 6(a) enacts a rule of substantive law, while S.43 enacts a rule of estopped which is one of evidence. The two provisions operate on different fields, and under different conditions, and we see no ground for reading a conflict between them or for cutting down the ambit of the one by reference to the other in our opinion, both of them can be given full effect on their own terms, in their respective spheres. To hold that transfers by persons who have only spes successions at the date of transfer are not within the protection afforded by S.43 would destroy its utility to a large extent.'
It was also contended before the Supreme Court that there can be no estoppel against the statute, transfers which are prohibited by statute could not held be protected by Section 43. The Supreme Court pointed out that the rule of estoppel are not to be resorted to have defeated or circumfending prohibition enacted by statute on ground of public policy. The Supreme Court further pointed out that Section 43 enacted a special provision for the protection of the transferee for consideration for persons who represents that they have a present interest / title which in fact they have not. The Supreme Court in paragraph - 18 after considering the different judgment has laid down the law as follows :-
'(18) We accordingly held that when a person transfers property representing that he has a present interest therein whereas he has in fact only spes successions, the transferee is entitled to the benefit of S.43, if he has taken the transfer on the faith of that represented and for consideration.'
16. in paragraph - 4 of the Judgment of Tanuram Keot's case (supra) clearly it was state as follows :-
'4. That the plaintiff did know that the defendant could not have really sold his interest etc. in the land. As such it can not be held that the plaintiff was in any way misled by the defendant. It is thus did not possess the little which he represented a case where the transferee as a fact that the transferor he had. Section 43 would have no application in such a case because of what is stated in Jumma Masjid (Supra).'
So it was on the fact of that particular case that the law was paid down by a Single Judge of this Court as indicated above. That is not the position in the case in hand as I shall subsequently demonstrate.
17. The next case relied on behalf of the Respondent is 1987(2) GLR 64 (Mustt. Safatun Ness & Others, Appellant v. Gitarani Kundi & Another, Respondents) wherein also the same view was taken and the law has been laid down as follows : -
'The ratio of the Judgment speaks that the annual lease holder can only transfer the right to use the land and that transfer is valid. But the validity of the transfer shall continue till the annual lease is not cancelled or converted into periodic one either in the name of annual lease holder or in the name of somebody else. However, in case the annual patta is converted to a periodic one in favour of a transferee, he certainly shall get the valid title and his sate transaction would be a supporting document in his favour to obtain mutation to enjoy the possession of the land but this did not occur in this case.'
in this judgment also section 43 of the Transfer of Property was not discussed in detail.
18. The next case on Section 43 of the Transfer of Property Act is 1994(4) SCC 730 Kartar Singh (dead) By L.R.S. And Others, Appellant v. Harbans Kaur(Smt), Respondent) Wherein in paragraph - 7 the law has been laid down as follows :-
'7. Section 43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transfers has been misled. The transferee must know or but on notice that the transferor does not possesses the title which he represented that he has. When note in the sale deed had put the appellant on notice of limited right of the mother as guardian, as a reasonable prudent man the appellant is expected to enquire whether on her own the mother as guardian of minor son is competent to alienate the estate of the minor. When such acts were not done the first limb of Section 43 is not satisfied. It is obvious that it may be an erroneous representation and may not be fraudulent one made by the mother that she is entitled to alienate the estate of the minor. For the purpose of Section 43 'it is not strong material for consideration. But on declaration that the sale is void, in the says of law the contract is non est to the extent of the share of the minor from its inception. The second limb of Section 43 is that the contract must be a subsisting one at the time of the claim. A void contract is not contract in the eye of law and was never in existence so the second limb of Section 43 is not satisfied. The ratio of this Court in Jumma Masjid Case is thus :
' Section 43 embodies a rule of estoppel an enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representations. It is only material to find out whether in fact the transferee has been misled. For the purpose of the section, it matters not where the transferor acted fraudulently in making the representation, and that what is material is that he did make a representation and the transferee knows as a fact that the transferor does not posses the title which he represents he has, then he can not be said to then have no application and the transfer will fail under Section 6(a).'
This Court in the later part has made it clear that where the transferee knows as a fact that the transferor does not possess the title which he represents, he has then he can not be said to have acted on it when taking a transfer. Section 43 would then have no application and the transfer will fall under Section 6(1) of the Transfer of Property Act. In view of the finding that no diligent and reasonable enquires were made regarding the entitlement of the mother to alienate the half share of the minor's estate, it can not be said that the applicant had acted reasonably in getting the transfer in his favour.'
19. In AIR 1921 Calcutta 501 (Ananda Mohan Roy. Plaintiff Appellant v. Gour Mohan Mallik, defendant, respondent) a Division Bench of the Calcutta High Court has pointed out as follows :-
'There is manifestly a fundamental difference between non-compliance with the formal requisites prescribed for a transaction whereby alienable property if transferred and an attempt to accomplish a transfer of property which has been rendered inalienable by a statutory provision. The appellant is in a position of similar difficulty when he invokes the aid of the principle of law which is sometimes referred to as feeding the grant by estoppel. That doctrine as recently stated by Lord Blackmaster in Tilakdhari v. Khidanlal (35) is that 'If a man who has no title whatever to property grants it by conveyance which in form would carry the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate instantly passes/ in such a case, there is nothing on which the second grant could operate in prejudice to the first.' This principle has sometimes been applied in our Courts (See for instance, Bhairab Chandra v. Jiban Krishna (26) to reach the result, that though the assignment was of a defective title, yet as the assignor afterwards acquired a good title, the Court would make that good title available to make the assignment effectual.
But this principle plainly has no application where the contract of assignment refers to property which has been expressly rendered inalienable by the legislature.'
20. In the case is hand, it is settled law that settlement holder can have no greater right than those expressed in the settlement lease as provided under this section. (See AIR 1951 Assam 45 (Abdul Gani v. Settlement Officer). In 1951 Assam 20 (Jainur Ali and Others, Appellants v. Mt. Chafina Bibi and others, Respondents) Thadani C.J. in paragraph - 8 pointed out that Section 11 read with Rule 1 (c) does not prohibit transfer of annual patta and the same was the view by Ram Lavaya J. So this decision along with others cited above will show that there is not prohibition with regard to transfer to annual patta land. In paragraph - 8 Thadani C, J. laid down the law as follows (8) The suit in so far it related to title to the property was between the transferor defendant and the transferee plaintiff. It is not disputed that defendant had received consideration of Rs. 3650/ - from the plaintiff for the sale of the property to the latter. in a suit between a transferor and a transferee arising out of a sale of property held by the transferor on annual patta from Government, the rights of the parties to sale are governed by the T.P. Act in the absence of a statutory provision prohibiting transfer.'
in paragraph - 14 in the concurring Judgment Ram Lavaya J, has laid down as follows :-
'(14) The principle stated in that case fully applies to the case before us. The re-settlement or the land on defendant should have the effect of keeping the contractual obligation alive between the plaintiff and defendant. The rights of the Government in the land are not affected by a transfer in which the transferor is an annual lease-holder. The Government has the right not to renew the lease and to recover possession of the property. It may give the lease, at the expiry of the year, to another person. The transferee will acquire no interest in the land as against the Government or any new lease-holder but as against his own transferor, he is entitled to claim that he should perform his part of the contract so long as he is the person on whom land is being settled by the Government. The rights of the Government are not in question in this case. All that we have got to decide in this case is whether plaintiff can enforce his rights under the sale deed as against his own transferee. We have no doubt that he can. The transfer is not forbidden by law. It contravenes no statutory prohibition. It merely violates a term of the lease. It is, therefore, enforceable against everybody except the Government, Defendant, a son of defendant also can not, therefore, resist the suit. He has been found not to process any independent right in any part of the property. The appeal, therefore, must fail.'
21. The question which arose for determination are in paragraph-6 of the Judgment, that is quoted below :-
'(6). Two points only have been argued before us (1) Whether the transfer of the land in suit, which was sold by Ex. 1 and which was covered by an annual patta confers title upon the plaintiff transferee (2) Whether defendants was in any case, liable to be evicted.'
22. I am bound by his Division Bench Judgment and I do not find that decision has impliedly overruled as was held in 1983 (1) GLR 497 by 1962 S.C. (Supra). This Division Bench Judgment is an authority for the proposition that the sale of an annual patta is a valid sale. That can be enforced against the transferor and as against this heirs. He will acquire a good title even when it is converted to periodic in the name of vendor. In that view of the matter by following the Division Bench Judgment. I find that this second Appeal requires to be allowed. The plaintiff will be entitled to recover possession of the land from which he was dispossessed by the defendants during the pendency of the suit.
23. I have not followed the three Single Bench decisions cited and discussed above in view of the Division Bench Judgment of 1951 Assam 20 (Supra). I do not agree that this Division Bench decision was impliedly over ruled by 1962 Supreme Court, Jumma Majid (supra). This 1983 decision of the Single Judge was followed in two decisions by subsequent single Bench Judgments accepting the view of Tanuram's case in 1983 (Supra).
24. As pointed out by Halsbury in Vo. 26 Fourth Edition in para-573 when construing a statute the Court must not rely on judicial statement as to the construction but must construe the words of the acts itself. Halsbury has further pointed out in the same Volume at Para 581 as follows :-
' A long-standing decision of a Judge of first instance ought to be followed by another Judge of first instance, at-least in a case involving the construction of a statute of some complexity unless he is fully satisfied that the previous decision is wrong. A part from any question as to the courts being of co-ordinate jurisdiction, a decision which has been followed for a long period of time and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts of higher authority that the court establishing the rule, even though the court before which the matter arises afterwards might not have given the same decision had the question came before it originally.
In general the House of Lords will not over-rule a long established course of decisions except in plain cases where serious inconvenience or injustice would follow from perpetuating an erroneous construction or ruling of law.'
25, From 1951 to 1983 the Division Bench decisions on Annual Patta had the field and in 1983 it was held that it was impliedly overruled. The word implied means not expressed. The precedent of the Division Bench is blinding on me. More so other things being equal a precedent acquires added authority from lapse of time, the longer a precedent has remained in question, the more it becomes difficult to reverse it. The courts do hesitate to adopt the construction of law which would inevitably result in upsetting titles long founded on the contrary view (Pratap Bahadur Sahiv. Laxmidhar Singh, 1946 PC page 189). Halsbury has further pointed out in Vol. 44 in Fourth Edition in paragraph 843 as follows :-
'When there are ambiguous expressions in a statute, and a particular interpretation on which certain supposed rights are founded has been acted upon for a long period, a Court will be cautious in holding that the supposed rights do not exist.'
26. I find that all the three Single Bench decisions are inconsistent with the earlier decision of the Division Bench of this Court and in fact it is without considering the aforesaid proposition of law. I follow that Division Bench decision, which is squarely binding on me.
27. Another aspect of the matter was not taken into consideration in all Single Bench Judgments. In the Division Bench Judgment it was specifically stated that transfer of Annual Patta land shall be the subject matter of right available in the Transfer of Property Act and the rights shall be governed by the T.P. Act Section 55(2) of the T.P. Act gives the covenant for title. Under Section 55(2) of the T.P. Act the vendor warrants:
(i) The title with which he proposes to deal.
(ii) His power to deal with it.
28. Under this Clause in a sale of immovable property there is an implied covenant for title of the seller, a title free from all reasonable doubts. There is no duty cast on the buyer to enquire as to vendor's title (See AIR 1960 Allahabad Page 367 Ramsarup Fattu, Chanlal v. Balkishan 1960 Punjab Page 275).
29. This implied covenant for title may be excluded only by the contract to the contrary, the onus being on the person who denies it to prove a contract displacing that presumption. But mere knowledge of suspicion of the buyer about the defect of title-in his vendor does not prevent an express of implied covenant. This implied covenant may be got rid of only by an express contract to the contrary. An express covenant for quiet enjoyment does not wipe out the statutory right, that is implied covenant for title. (See Bhagwati v. Banarasi (1978) PC Page 98) Sub-section (2) of Section 55 includes implied covenant for title and for quiet enjoyment of the property. It the interpretation given by the Single Bench Judgments are to be accepted, this Section 55(2) of the T.P. Act shall be made negatory. The benefits of the covenant for title runs with the land i.e. the transferee too of the buyer can enjoy the benefits. It is enforceable right by a person on whom the property falls/vests. The completed contract may be set aside only on the grounds of fraud, coercion, undue influence or common mistake. A sale of an annual patta land being legal that sale simply can not be set at sought or wiped out by mere conversion of the annual patta to periodic in the names of the vendors or in the names of the heirs. The vendors or the heirs shall be bound by operation of law to honour the contract earlier made. They can not make a somersault and consider it to be mere scrap of paper by setting up the defence as has been done in the instant case. That will amount to fraud and deception.
30. It is a maxim of law recognised and well established that no man -shall take advantage of his own wrong and this maxim which is based on elementary principle is fully recognised in Courts of law and equity and indeed admits illustration from every branch of legal procedure. The reasonableness of the rule is manifest (See Broom's Legal Maxim, Tenth Edition, Page 191).
31. A wrong doer ought not to be permitted to make a profit out of his own wrong. This rule has been applied to promote justice in various circumstances. In the case in hand the predecessor-in-interest of the defendant in the year 1968 sold the land in favour of the plaintiff by a registered deed on receipt of good consideration, thereafter the plaintiff was paying the land revenue and in 1984 by suppressing the fact of sale and delivery of possession got the patta converted to periodic in his name in collusion with revenue staff as alleged in the in plaint in para-8 and as deposed by PW-1. If he would have disclosed the fact of sale and parting with the possession the authority having the power to convert an annual patta to periodic would not and/or could not have made the patta periodic in his name. That suppression itself amounts to fraud and he got the land converted to periodic by paying a nominal premium. The instructions which are issued under Rule 18 of the Land and Revenue Regulation provides that an Annual Patta can be converted to periodic it the person is not in possession of the same and/or he has a contravened clauses of the Annual Patta. This aspect of the matter also shows the wrong doing on the part of the predecessor-in-interest of the defendant and to accept the periodic patta as a defence in favour of the defendants will amount to putting a premium on wrong doing. The law is that the author of a wrong who has put a person in a position in which he has no right to put him shall not take advantage of his own wrong or his illegal act or otherwise shall not avail himself of his own wrong. A party cannot be allowed to take advantage of his own fraud. The law being that a wrongful and fraudulent act shall not be allowed to take advantage of his own fraud. The law being that a wrongful and fraudulent act shall not be allowed to conduce to the advantage of the party who committed it and it is on this principle that the question of estoppel will arise and the plaintiff will have the benefit of it. A party shall not entertain himself to substantiate a claim or to enforce a detenu by reasons of acts which proceeded from himself or adopted or aquised by him the Court of law in such a situation will do so to adjust equity between the parties so as to prevent undue benefit from accruing to that party who has unfairly endeavouring to take advantage of his own wrong. Since a man cannot be permitted to take advantage of his own wrong he will not be allowed to find a claim upon his own iniquity.
32. Accordingly this Second Appeal is allowed. The suit of the plaintiff i.e. Title Suit No. 25/92 in the Court of the learned Munsiff No. 2 Barpeta is decreed by setting aside the Judgment of the Trial Court dated 4.10.93 as well as the Judgment dated 22.7.1994 passed by the Assistant District Judge at Barpeta in Title Appeal No. 26/93.
The suit is decreed as follows :-
(i) The right, title and interest of the plaintiff in the suit land is decreed and the plaintiff be put in khas possession of the land as described in the schedule of the plaint.
(ii) The periodic patta issued in the name of Late Maziram Boro shall stand cancelled and a precept is issued to the revenue authority to issue a fresh periodic patta in the name of the plaintiff and to mutate the land in the name of the plaintiff.
33. The reliefs I have moulded in view of the facts and circumstances of the case. The parties shall bear their own costs.