MOHMAD SUJAT Vs. MT. CHANDBI

JUDGEMENT

(1.) ONE Sirdarkhan, who owned Survey No. 23 of mouza Shirajgaon, died several years ago leaving behind two sons Samdarkhan and Maste-khan and one daughter named Chandbi who is plaintiff-respondent in this case. The two brothers sold the field to one Baliram on 19th February 1922 and Baliram sold it to defendant-appellant on 10th February 1923. Plaintiff claims 1/5th share in that field. The defendant urged in the first Court that the plaintiff's claim was barred by limitation and also to protection under Section 41 of the Transfer of Property Act. The defence prevailed in the first Court and the suit was dismissed and the plaintiff therefore went up in appeal to the Additional District Judge, Amraoti. The Additional District Judge allowed the plaintiff's appeal and decreed the claim. It is against this decree that the defendant has come up in second appeal.

(2.) THE Additional District Judge formulated the following points for consideration as being necessary to be established in a case coming under Section 41 of the Transfer of Property Act. The transferee has to prove : (1) that the real owner allowed another person to hold himself out as the owner of the field; (2) that the transferee purchased it for value from the apparent owner in the belief that he was the real owner, and that the real owner has to prove (3) either direct or constructive notice of the real title, or (4) circumstances which would put the transferee on inquiry which if prosecuted with due care and attention, would lead to the discovery of the real title.

(3.) THERE is yet another reason why I should be disinclined to interfere in second appeal, and it is that the present appellant has, on the facts found, failed to prove that the possession of the plaintiff's two brothers was in any way adverse to her knowledge for over 12 years prior to the suit. On the contrary the lower appellate Court's finding is that until Baliram purchased the field in 1922, plaintiff was in constructive possession of it through her brothers. In any case, the possession of the brothers was equivocal until 1922 and it was the present defendant's duty to show that it had become adverse long prior to that. Under these circumstances no proper case is made out for interference in second appeal.