Punjab-Haryana High Court
Smt. Jangir Kaur And Ors. vs Mohinder Singh And Ors. on 23 May, 2007
Equivalent citations: (2007)4PLR268
JUDGMENT Vinod K. Sharma, J.
1. This Regular Second Appeal has been filed against the judgments and decrees passed by the learned Courts below vide which suit filed by the plaintiffs respondents for possession has been decreed.
2. The plaintiffs-respondent filed a suit on the plea that agricultural land measuring 222 kanals 12 marlas detailed in the head note of the plaint situate in Tehsil and District Sirsa was owned by Smt. Phatto wife of NathaL She died useless and as such her estate was devolved upon the collaterals of her husband. Among the collaterals 1/3rd share passed on to Sucha Singh son of Gaju, other 1/3rd share passed en to descendant of Phatto, brother of Gaju and the remaining 1/3rd devolved on Alia son of Bhana another brother of Gaju. Sucha Singh died before a mutation of inheritance could be sanctioned in respect of his share. The mutation bearing No. 5687 was sanctioned on 4.4.1963. The land of Sucha Singh's share was mutated in favour of his son Surjit Singh, daughter Gulab Kaur, and widow Bhagwant Kaur. Bhagwan Kaur also later died and her share passed on to Surjit Singh and Gulab Kaur, who were arrayed as defendant Nos. 1 and 2 in the suit. The case of the plaintiffs was that Sucha Singh had other daughters also by the name of Chetan Kaur and Parsan Kaur, who predeceased their children. Mohinder Singh and Smt. Sito Plaintiff Nos. l and 2 claimed to be son and daughter respectively of Parsan Kaur while Smt. Bhago, Smt. Mukhtiaro and Smt. Naibo Plaintiff Nos. 3 to 5 claimed to be the daughters of Chetan Kaur. The case of the plaintiffs was that they being the legal heirs of pre-deceased daughters of Sucha Singh were entitled to 1/2 share of the estate of Sucha Singh and they have been deprived of the inheritance by concealing their existence.
It was further the case set up by the plaintiffs that by sale deed dated 12.11.1973, Surjit Singh defendant No. 1 has sold agricultural land measuring 86 kanals and 10 marks to Smt. Jagir Kaur and Smt. Hamir Kaur defendant Nos. 3 & 5, which is in excess of his share. Sale was challenged by the plaintiffs to be illegal and against their interest. The plaintiffs accordingly claimed their share.
3. The suit was contested by defendant Nos. 3 and 4 only. Surjit Singh filed a written-statement of admission while Gulab Kaur defendant No. 2 did not appear and was proceeded ex parte. The averments made by the plaintiffs in the suit were denied and the factum of relationship was also denied for want of knowledge. Sale was also defended. It was also claimed that suit had not been properly valued for the purposes of Court-fee and jurisdiction and that it was barred by limitation. The plea of mis-joinder and non-joinder of parties was also taken and it was pleaded that suit was not maintainable in the present form. The plea of estoppel was also raised.
4. On the pleadings of the parties, the Court below was pleased to frame the following issues:
1. Whether the plaintiffs are heirs of Sucha Singh deceased as alleged? OPP
2. Whether the plaintiff Nos. 1 and 2 are entitled to succeed in equal shares to the extent of 1/2 share and plaintiff Nos. 3 to 5 are entitled to succeed in equal shares out of 1/2 share of the suit land? OPP
3. Whether the sale to the extent of 3/4 share of the suit land made by Surjit Singh defendant No. 1 as per registered sale-deed dated 12.11.1973 was void, without jurisdiction and is liable to be set aside as alleged? OPP
4. Whether the suit has been properly valued for the purpose of court-fee and jurisdiction? OPD
5. Whether the suit is within time? OPD
6. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD
7. Whether the suit is not maintainable in the present form? OPD
8. Whether the plaintiffs are estopped from filing the present suit? OPD
9. Relief.
5. The suit was decreed on 4.10.1976 by recording a finding that Mohinder Singh and Sito were entitled to the possession of 1/4th share and three other plaintiffs namely: Smt. Bhago, Smt. Mukhtiaro and Smt. Naibo were entitled to other 1/4th share in the suit. An appeal was filed against the judgment and decree passed by the learned trial Court, in which an application was moved for amendment of the written-statement so as to take the plea of bona fide purchaser for value without notice. The said amendment was allowed and consequently, the judgment and decree passed by the trial Court was set aside and the case was directed to be decided afresh in the light of amendment of written statement, when the following additional issues were framed:
8-A. Whether the defendant Nos. 3 and 4 are bona fide purchasers of the suit land with consideration and it is protected under section 41 of the T.P. Act? OPD 8-B. Whether the amendment is not in accordance, with the orders passed by the learned Appellate Court? OPD
6. The suit was again decreed on 16.3.1978. An appeal against the said judgment and decree was filed and the learned lower Appellate Court came for the conclusion that the trial Court had not recorded any finding on issue Nos. 4 and 7 and accordingly the judgment and decree of the trial Court was again set aside and the case was remanded back to the trial Court for fresh decision on all issues. After the remand the learned trial Court decided issue No. 1 in favour of the plaintiffs respondent and held that plaintiffs are legal heirs of Sucha Singh deceased. Issue Nos. 3 and 8-A were decided together and the learned trial Court was pleased to hold that defendant Nos. 3 & 4 failed to prove that they were bonafide purchasers for value without notice and, therefore, they were not entitled to protection under Section 41 of the Transfer of Property Act. Issue No. 3 was decided in favour of the plaintiffs and the sale was held to be void and without jurisdiction. Issue No. 4, which was treated preliminary issue, was also decided in favour of the plaintiffs. On issue No. 5, a finding was recorded that the suit was within limitation. Issue Nos. 7 and 8 were decided against the plaintiffs and consequently, the suit was decreed.
7. Appellant defendants filed an appeal against the said judgment and decree. Appeal was dismissed and the finding recorded by the learned trial Court on all the issues was affirmed.
8. Mr. V.G. Dogar, learned Counsel appearing on behalf of the appellants bad challenged the findings of the learned Court below on issue N0.8-A only. The learned Counsel for the appellants submits that following substantial questions of law arise for consideration by this Court:
1. Whether findings recorded by the learned Courts below are perverse being contrary to the evidence brought on record?
2. Whether in view of the evidence led the Courts below were justified in holding that the defendant appellants failed to prove that they were bonafide purchaser for consideration?
9. In support of his contention the learned Counsel for the appellants contended that the finding recorded by the learned Courts below cannot be sustained as they proceeded on the presumption that the parties to the suit were living in the same village, which is factually incorrect. The learned Counsel for the appellants referred to the memo of parties in the plaint, which shows that all the parties were living in different villages. The next contention of the learned Counsel for the appellants was that the learned Courts below were wrong in coming to the conclusion that the statement made by Sh. Mukhtiar Singh did not satisfy the proof of bonafide purchase. He made reference to the statement made by Sh. Mukhtiar Singh wherein he had stated that before purchase he had gone through the revenue record as well made inquiries from the Revenue Patwari and other Revenue Officials, therefore, it had to be presumed that the plaintiffs had led the vendees to believe that the vendors were ostensible owners of the property. The learned Counsel for the appellants further contended that the findings of the learned Courts below that being tenant under Surjit Singh a presumption of knowledge has to be drawn cannot be sustained as it was proved on record that they were tenant under Smt. Phatto and after her death no Batai was ever paid to Sucha Singh or Surjit Singh and, therefore, the contention of the learned Counsel for appellant was that finding is perverse, are liable to be set aside. In support of his contention, the learned Counsel for the appellant places reliance on the judgment of the Hon'ble Supreme Court in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs and Ors. wherein it has been held that it is open to the High Court to interfere with the findings of the fact when they are found perverse. The learned Counsel for the appellants also placed reliance on the judgment of this Court in the case of Anup Singh v. Smt. Bachni alias Bachan Kaur (1996-3) 114 P.L.R. 184 to contend that once titles were verified from the revenue record the appellants defendant were to be treated to be bonafide purchasers for consideration and, therefore, it was argued that finding on issue No. 8-A is required to be reversed.
10. Mr. Amarjit Markan, appearing on behalf of the respondents contended that appellants defendants failed to prove the conditions laid under Section 41 of the Transfer of Property Act (for short 'the Act') to claim that they were bonafide purchaser for consideration. The contention of the learned Counsel for the respondents was that the appellant defendants failed to appear even in the witness box to assert that the vendors had represented to them to be the ostensible owner with the consent of the true owner so as to attract provisions of Section 41 of the Act, The learned Counsel for the respondents submitted that as a matter of fact one of the sales in favour of the appellants defendants was after the institution of the suit and, therefore, was prima facie hit by the principle of lis pendens and, therefore, the plea of bona fide purchaser was not available to the defendants appellant,
11. The learned Counsel for the respondent further submit that the learned Courts below have recorded a findings against the appellants under Issue No. 8-A, not only on the ground that they being resident of the same village but also on account of the fact that the vendees had failed to appear in the witness box to assert their stand. The contention of the learned Counsel for the respondents, therefore, was that an adverse inference was required to be drawn against the appellant defendants and the same has rightly been done by the Courts below. In support of this contention reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Vidhyadhar v. Manikrao and Anr. wherein it has been held as under:
...15. It was defendant No J who contended that the sale-deed, executed by defendant No. 2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs. 500/- were paid as sale consideration to defendant No. 2. He further claimed that payment of Rs. 4,500/- to defendant No. 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by defendant No. 1 as he did not enter into the witness box. He did not state the facts pleaded in the written-statement on oath in the trial Court and avoided the witness box so that he may not be cross-examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No. 2 and the plaintiff was a bogus transaction.
16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decision passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksh Singh v. Gurdial Singh A.I.R. 1927 P.C. 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipai Singh A.I.R. 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh A.I.R. 1931. Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat , also followed the Privy Council decision in Sardar Gurbakhs Singh's case (Supra). The Allahabad High Court in Arjun Singh v. Virender Nath held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand , drew a presumption Section 114 of the Evidence Act against a party who did net enter into the witness box.
12. The learned Counsel for the respondents by relying upon the judgment of this Court in the case of Som Nath v. Labh Singh and Ors. 1979 P.L.J. 388 to contend that the appellants defendant had failed to prove that the vendors of the defendants were ostensible owner occupying property in dispute with consent of the true owner. It was further pleaded that they had also failed to prove that reasonable care was taken to ascertain that the transferor had power to make the transfer. The contention of the learned Counsel for the respondents further that it was also required to be proved that they had acted in good faith and transfer was for consideration for value without notice. The contention of the learned Counsel for the respondent, therefore, was that in the present case Mukhtiar Singh, who had appeared in the witness box had himself admitted that he was tenant over the property for the last 25-30 years and, therefore, it was rightly presumed by the learned trial Court that he was aware of the legal heirs of the party under whom they are claimed to be tenant. A special reference was made to para 11 of the judgment in the case of Som Nath v. Labh Singh and Ors. (supra), which reads as under:
Close scrutiny of these authorities would show that the benefit of Section 41 of the Transfer of Property Act is available only if there is ostensible owner occupying the proper in dispute with the consent express or implied of the other owners and that the transferee, from the ostensible owner, should have taken reasonable care to ascertain that the transferor had the power to make the transfer; that the transferor should have acted in good faith and that the transfer should be for consideration and without notice. Here in this case, the first condition is not satisfied. It is not proved on the record that the transferor were in possession of the property in dispute with the consent, express or implied, of the other heirs. Secondly, the transferee did not make inquiries about the other heirs of Mukandam Singh, although, as observed earlier, the transferee in this case was not an absolute stranger. He knew the family quite intimately, as during the life time of Mukandam Singh, he had taken on lease the land in dispute and after his death also he continued to be a lessee. Hence, it cannot be said that he did not know about the other heirs of Mukandam Singh.
13. The learned Counsel for the respondents finally contended that mutation should not be treated to be a document of title so as to enable the appellant defendants to claim that search was done before purchase of claim benefit as bona fide purchaser. The learned Counsel for the respondents further argued that in the present case the appellant defendants choose not to appear in the witness box nor any revenue official was produced as a witness from whom enquiries were said to have been made by Mukhtiar Singh who had appeared in the witness box to prove stand of bonqflde purchase under issue No. 8-A. In support of this contention he has placed reliance on the judgment of this Court in the case of Nazar Singh and Ors. v. Nand Lal and Ors. 1992 P.L.J. 175 wherein this Court has been pleased to hold that Section 41 of the Act is for the protection of careful men and not for indifferent or credulous persons. Mere oral assertion that title was verified from the patwari and clerk of Registration office cannot be believed unless the Patwari and said clerk is produced in witness box to support the same.
14. I have considered the arguments raised by the learned Counsel for the appellants and find no force in the same. It is not in dispute that one of the sale in favour of the appellant-defendants was executed after the filing of the suit. The contention of the learned Counsel for the appellants that it was prior to the receipt of notice can be of no avail as it cannot be said in that situation that steps were taken by the appellants to verify the title of the vendor. The learned courts below were right in drawing an inference against the appellant-defendants as the defendant-appellants failed to appear in the witness box to assert the factum of knowledge and search and, therefore, in view of submissions made by the learned Counsel for the respondents it cannot be said that the findings recorded by the learned Courts below are perverse as is sought to be contended by the learned Counsel for the appellants.
15. The learned Courts below were, therefore, right in coming to the conclusion that appellants-defendant had failed to prove that they were bonafide purchaser for consid7 eration without notice. In view of the finding recorded above, the questions as framed in this appeal are answered against the appellants,
16. The learned Counsel for the appellants thereafter sought to contend that once it was pleaded by the plaintiff-respondents that defendant-appellants were tenant over the property in dispute no decree for possession could have been passed as in that situation the remedy of seeking possession from the tenants was only under the Land Revenue Act and not with the Civil Court. However, there is no need to go into this question as no such plea was raised or issue framed before the learned Courts below and it is not open to the appellants to raise this plea for the first time in the regular second appeal. For the reasons stated above, this regular second appeal fails and is accordingly dismissed.