Punjab-Haryana High Court
Gurcharan Singh And Ors. vs Punjab State Electricity Board, ... on 22 August, 1988
Equivalent citations: AIR1989P&H127, AIR 1989 PUNJAB AND HARYANA 127, (1989) 1 LANDLR 66, 1988 REVLR 2 331, 1988 PUNJ LJ 528, (1988) 94 PUN LR 674
JUDGMENT I.S. Tiwana, J.
1. This appeal is directed against the award of the District Court, Ropar, under Section 30 of the Land Acquisition Act. The undisputed facts are that the State Government acquired 264 kanals and 2 marlas of land (the details of which are contained in Reference No. 16 of June 1, 1981), for the construction of Ropar Thermal Plant. The requisite notification in this regard was published under Section 4 of the Land Acquisition Act on July 5, 1979. Concededly Bachan Singh, Joginder Singh, Sarup Singh and Raghbir Singh sons of Arjan Singh were the original owners of this land They sold it in two lots to Tulsi son of Ghanyia Ram somewhere in the year 1959. These sales were pre-empted by Baldev Singh through two civil suits, namely, Nos. 71 and 72 of 1959 and two separate decreed covering the entire land were passed in his favour on Aug. 22, 1960 (Exhibit Rule 20) and July 18, 1960 (Exhibit Rule 19). The requisite pre-emption money was deposited by the plaintiff within the stipulated time and thus he perfected his title to the land. Baldev Singh, however, could not take possession of the land prior to its acquisition by executing the decrees referred to earlier. The said land was again sold by the original owners, i.e., Bachan Singh, Joginder Singh, Sarup Singh and Raghbir Singh through nine different sale deeds from June 7, 1965 to Nov. 18, 1966. Before these vendees who are now appellants in this Court could be paid the compensation (Rs. 2,21,764.08 p.) for this acquired land, Baldev Singh pre-emptor staked his claim to the money on the ground that he is the real owner of the acquired property in view of the decrees Exhibits Rule 20 and Rule 19. This dispute, as already indicated, led to the making of a reference under Section 30 of the Act.
2. The primary stand of the appellants before the trial Court to contest the claim of respondent Baldev Singh was that since he had failed to take possession of the property in question by executing the decrees in his favour within 12 years of the passing of the same, the said decrees had exhausted themselves and he could not more be treated as the owner of the property. Of course it was also obliquely said that they had acquired the property from the original owners for consideration in a bona fide manner. Protection of Section 41 of the T.P. Act was, however, not specifically pleaded. In the light of the pleadings of the parties the Court set the following four issues for trial : --
1. Whether the claimant-petitioners purchased the acquired land in question from Bachan Singh, Joginder Singh, Sarup Singh and Raghbir Singh on different dates as alleged?
2. If issue No. 1 is proved, whether the said sales are valid?
3. Whether the rival claimant-petitioner earlier secured two pre-emption decrees in respect of the acquired land in question after initial sales thereof in favour of Tulsi, by Bachan Singh, Joginder Singh, Sarup Singh and Raghbir Singh, as alleged. If so, whether such pre-emption decrees still subsist?
4. If issue No. 3 is proved, whether the rival claimant-petitioner is entitled to compensation in respect of the land in question, in preference to the claimant-petitioners?
The latter mentioned two issues, i.e., Nos. 3 and 4, were held in favour of Baldev Singh. Under issues Nos. 1 and 2, it was found that though the appellants had purchased the suit properly from Bachan Singh, Joginder Singh. Sarup Singh and Raghbir Singh on different dates, yet those sale deeds conferred no title on them in view of the fact that these vendors had already sold their interests in favour of Tulsi son of Ghanyia which sales had duly been pre-empted by Baldev Singh respondent and with the deposit of the pre-emption money within the stipulated time he had acquired a complete and valid title to the property. The argument of the learned counsel for the appellants that they were entitled to the protection of Section 41 of the T.P. Act was rejected on the ground that no such specific plea had been taken in their pleadings.
3. It is being vehemently contended by Mr. Majithia, learned counsel for the appellants, that in the light of the various averments made by the appellants in their replies to the application claiming the compensation and the evidence led on their behalf, they are well entitled to urge and sustain their plea under Section 41 of the T.P. Act. He further highlights that even though no specific issue had been raised or framed by the trial Court with regard to the legal plea urged before it and sought to be repeated here, yet since the parties to the litigation knew the point in question and they had even led evidence in support of their respective stands, they cannot be non-suited on the ground that they had failed to take a specific plea under section 41 of the Act. In support of this proposition, he relies on Ram Niwas v. Rakesh Kumar (1982) 84 Pun LR 9 : (AIR 1981 Punj & Har 397) and Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593. The submission of the learned counsel may have some merit, but he is faced with an insurmountable difficulty and that is the factum of respondent's minority at the time of the alleged sales made in favour of the appellants by the four vendors, i.e., Bachan Singh, Joginder Singh, Sarup Singh and Raghbir Singh. It is not in dispute nor can it be that only those alienees from an ostensible owner are protected under Section 41 of the T.P. Act who can establish that the sale in their favour was with the consent express or implied of the true owner and that too only on proving that it was for consideration and they had taken reasonable care to ascertain that the transferor had the power to make the transfer and they acted in good faith. As has been pointed out earlier, Baldev Singh respondent concededly was a minor at the time of the sales in favour of the appellants. He, therefore, cannot be held to have consented expressly or impliedly to these transactions. In somewhat similar situations this Court as well as the Lahore High Court in Surjit Singh v. Mohinder Singh, 1978 Rev LR 291 and Kanhiya Lal v. Deep Chand, AIR 1947 Lahore 199, have ruled that where alienation is made by an ostensible owner of property belonging to the true owner who is a minor, it is impossible for the minor to give his assent either expressly or by implication and, therefore, the provisions of Section 41 of the T.P. Act cannot be attracted to such a case. In the light of this well settled proposition I find no merit in the stand of the learned counsel for the appellants.
4. It is then sought to be urged by Mr. Majithia that the decrees Exhibits Rule 20 and Rule 19 were the result of fraud and, therefore, these be not given effect to. The learned counsel, however, is not in a position to state as to on whom the fraud was played when these decrees were passed. No doubt these are consent decrees, yet it cannot be held by any stretch of imagination that these were the result of any fraud.
5. In the light of the discussion above this appeal fails and is dismissed but with no order as to costs.