Punjab-Haryana High Court
Tejbir Singh vs Darshan Kumar (Dead) And Ors on 5 March, 2009
Equivalent citations: AIR 2009 (NOC) 2993 (P. & H.)
RSA No.1711 of 1989 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1711 of 1989
Date of Decision: 5 .3.2009
Tejbir Singh ..Appellant
Vs.
Darshan Kumar (dead) and Ors. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.M.L.Sarin, Sr. Advocate, with
Ms.Seema Jagpal, Advocate,
for the appellant.
Mr.Hitesh Pandit, Advocate,
for the respondents.
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
---
Vinod K.Sharma,J.
The defendant/appellant by way of this regular second appeal RSA No.1711 of 1989 2 impugned the judgments and decree dated 9.12.1985 and 15.2.1989 passed by the learned courts below vide which suit for permanent injunction restraining the defendant from illegally and forcibly interfering in possession of the plaintiffs as owners of land measuring 48 kanals 15 marlas situated at Batala stands decreed.
The plaintiff/respondents brought a suit on the pleadings that the land in dispute was owned and possessed by Pardeep Singh, Sandeep Singh sons of Kuldip Singh. The owners of the land sold the land in dispute through their attorney Smt.Savitri Devi for a sum of Rs.32,700/- on the basis of registered sale deed dated 31.12.1976 and delivered the possession of the land to the plaintiffs.
It was also the case of the plaintiffs that since 31.12.1976 i.e. the date of purchase of land in dispute the plaintiffs are in possession of the suit land as owners and the defendant has no right, title or interest in the suit land. The defendant threatened to interfere in the possession of the plaintiffs illegally and forcibly without any right. It was the case set up by the plaintiffs that the defendant-appellant was requested to abstain from taking the law in his own hand and stop illegally and forcibly interfering in possession of the plaintiffs over the land in dispute but he refused to do so. Hence the suit.
On notice, suit was contested by the defendant by asserting that the land measuring 60 kanals 1 marla situated in the revenue estate of village Batala West as per jamabandi for the year 1945-46 was owned and possessed by Pardeep Singh and Sandeep Singh who validly sold and RSA No.1711 of 1989 3 delivered possession of the same in favour of the defendant/appellant on 25.9.1961. The land in dispute was said to have been allotted in lieu of the aforesaid land measuring 60 kanals 1 marla during consolidation and settlement proceedings and as such the defendant claimed to be owner in possession of the suit land. The defendant-appellant claimed that due to ipse-dixit of the revenue and consolidation officials concerned and inadvertence the mutation of the aforesaid land was not entered and sanctioned in favour of the defendant-appellant who, however, remained owner in possession thereof till consolidation and after the consolidation proceedings became owner in possession of the suit land.
The defendant/appellant denied that Pardeep Singh and Sandeep Singh were owners in possession of the suit land. The defendant/ appellant also denied the validity of the alleged registered sale deed dated 31.12.1976 allegedly executed by Pardeep Singh and Sandeep Singh. It was admitted that Savitri Devi was general attorney at the time of execution of the sale deed dated 25.9.1961.
It was also the case of the defendant/appellant that in view of the prior sale of the suit land in favour of the defendant the subsequent sale deed dated 31.12.1976 was void, illegal and not at all binding on his rights.
Neither Pardeep Singh nor Sandeep Singh was owner in possession of the suit land at the time of sale in favour of the plaintiff/ respondents on 31.12.1976 nor could they deliver possession of the same to the plaintiffs. The factum of delivery of possession to the plaintiffs was denied. It was denied that the plaintiffs are owners in possession of the suit RSA No.1711 of 1989 4 land since 31.12.1976 or that their alleged vendors were owners in possession of the same prior to that. The defendant claimed that he was the real and lawful owner in possession of the suit land and got full and valid rights of ownership.
It was also the case of the defendant that the suit was not maintainable at all. The plaintiffs were said to be not entitled to the equitable relief of injunction. The alleged possession of the plaintiffs over the suit land was said to be not lawful and was that of a trespasser and thus, it was claimed that no injunction could be granted against the true owner.
All other averments made by the plaintiffs were denied. In the replication, the pleas raised in the written statement were denied and that of the plaint were reiterated.
On the pleadings of the parties, learned trial court was pleased to frame the following issues:-
"1. Whether the plaintiffs are owners in possession of the land in dispute? OPP 1-A Whether the plaintiffs bona fide purchased the land in suit after due inquiry and in good faith and as such they are protected under section 41 of the Transfer of Property Act? OPP
2. Whether the defendant purchased land measuring 60 kanals 1 marlas mentioned in para No.1 of the written statement and got possession of the same from Pardeep Singh and Sandeep Singh? OPD RSA No.1711 of 1989 5
3. Whether the suit land was allotted in lieu of land measuring 60 kanals 1 marla mentioned in para No.1 of written statement during consolidation and defendant is owner in possession thereof? OPD
4. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP
5. Whether the plaintiffs are entitled to injunction prayed for? OPP
6. Relief."
Issue No.1-A referred to above was framed after remand by the learned District Judge, Gurdaspur. Issue Nos. 2 and 3 were taken up together. Learned trial court on the basis of evidence brought on record recorded a finding that by way of sale deed Ex.D.1 the defendant purchased the land from Pardeep Singh and Sandeep Singh as they were owner of 2/3rd share by virtue of mutation No.7627 and they also became owners of 1/3rd share which originally belonged to their father Kuldip Singh by virtue of sale deed dated 25.9.1961. The execution of the sale deed Ex.D.1 was duly proved. Thus, it was held that the defendant had become the owner of the land mentioned in the sale deed out of khewat No.847. The learned trial court also on the basis of evidence brought on record recorded a positive finding of fact that the land in dispute was allotted in lieu of the land mentioned in the sale deed Ex.D.1. However, the learned trial court held that delivery of possession of the land in question to the defendant at the time of execution of the sale deed Ex.D.1 was not proved. Learned trial RSA No.1711 of 1989 6 court also held that it was conceded case of the parties that the land in dispute is Banjar and has been lying vacant for the last about 10-12 years.
In the revenue record also the suit land was shown to be Banjar Qudim. Thus, the possession of the defendant was that of owner. Learned trial court, however, observed that in the present case vendors of defendant continued to be shown as owners of the land in dispute in the revenue record and therefore, presumption was drawn that the land being Banjar must be presumed to be in possession of the vendors. The court, therefore, held that the land is to be presumed to be in possession of the plaintiffs and thus, it could not be said that the defendant was in possession of the land in dispute. On issues No.2 and 3 the learned trial court concluded that the defendant purchased the land in dispute vide sale deed Ex.D.1 and that the land in dispute was allotted in lieu of the land mentioned in Ex.D.1. However, the possession of the defendant over the land in dispute was not established.
Issues No.1 and 4 were taken up together. The plaintiffs produced evidence to prove the sale deed Ex.P.1 in their favour. The learned trial court observed that the sale deed Ex.P.1 was, in fact, not in dispute but the challenge by the defendant was to the bona fide of the plaintiffs in purchasing the suit land from the vendor particularly in view of the earlier sale deed ex.D.1 in favour of the defendant/appellant. It was the contention of the defendant-appellant that the plaintiffs had full notice of earlier sale deed in favour of the defendant-appellant by the same vendees through their mother as attorney. It was also the contention that the plaintiffs did RSA No.1711 of 1989 7 not make necessary inquiry regarding the land in dispute before purchase.
Learned trial court relied upon the statement of DW 6 who was the attesting witness to the sale deed Ex.P.1, who stated that the factum of previous agreement of sale was brought to the notice of the vendees.
Reference was also made to Khasra girdawari Ex.D.5 for the year 1967 to 1969 wherein the defendant-appellant was shown to be in cultivating possession of the land in dispute. However, learned trial court did not accept the evidence produced by the defendant-appellant in this regard and recorded a finding that it could not be said that the plaintiffs had the notice of earlier sale in favour of defendant. Thus, the learned trial court held that the plaintiffs are owners in possession of the land in dispute being bona fide purchasers after due inquiry and in good faith. Thus, it was held that they were entitled to protection under section 41 of the Transfer of Property Act (for short the Act).
Issues No.4 and 5 were not pressed.
In view of the findings recorded above, on issue No.6 it was held that the plaintiffs were entitled to injunction and consequently, the suit was decreed.
Defendant-appellant preferred an appeal.
In appeal, the finding of the learned trial court that the plaintiffs are transferee of land without notice and that they are protected under section 41 of the Act was affirmed and appeal was dismissed.
Mr.M.L.Sarin, learned senior counsel appearing on behalf of the appellant contended that this appeal raises the following substantial RSA No.1711 of 1989 8 questions of law:-
1. Whether the courts below have misread and misinterpreted the extensive and cogent evidence on the record which clearly shows that the plaintiff/respondents were well aware of the fact that the suit land had been previously sold to and occupied by the defendant-
appellant?
2. Whether the courts below have grossly misread and wrongly applied the provisions of Section 41 of the Transfer of Property Act when the same has no applicability to the facts of the present case?
Mr.M.L.Sarin, learned senior counsel appearing on behalf of the appellant vehemently contended that the learned courts below have misread and misinterpreted the evidence on record as they failed to notice that in the revenue record from 1967 to 1969 it was the defendant-appellant who was shown to be in possession of the land.
Learned senior counsel also contended that it was proved on record that the land in dispute was allotted in lieu of the land sold vide Ex.D.1. Learned senior counsel also contended that once the land was shown to be Banjar Qudim the same was to be presumed to be in possession of true owner and thus, it was contended that the finding recorded by the learned courts below holding the defendant-appellant not to be in possession of the land in dispute is the outcome of misreading and misinterpretation of evidence brought on record.
RSA No.1711 of 1989 9
It is also the contention of the learned senior counsel that once the defendant/appellant was shown to be in possession in the revenue record it had to be held that the respondent/ plaintiffs were well aware of the fact that the suit land stood sold to the defendant-appellant. The learned senior counsel also contended that registration of document is notice to all, thus plaintiffs are presumed to have notice.
Main stress of the learned senior counsel was that second substantial question of law deserves to be answered in favour of the appellant/defendant and the judgment and decree passed by the learned courts below, therefore, cannot be sustained.
In support of this contention learned senior counsel for the appellant referred to section 41 of the Transfer of Property Act, which reads as under:-
"41. Transfer by ostensible owner.-- Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it:
Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
By referring to the provisions of Section 41 of the Act, learned senior counsel appearing on behalf of the appellant contended that in order RSA No.1711 of 1989 10 to attract the provisions of Section 41 of the Act it has to be pleaded and proved that transferor is the ostensible owner and that he is so by the consent, express or implied of the real owner, the transfer is for consideration and that the transferee has acted in good faith by taking reasonable care to ascertain that the transferor had power to transfer.
In support of this contention, learned senior counsel for the appellant placed reliance on the judgment of Hon'ble Supreme Court in the case of Hardev Singh Vs. Gurmail Singh (Dead) By LRs. (2007) 2 SCC 404, wherein Hon'ble Supreme Court has been pleased to lay down as under:-
"9. Application of Section 41 of the Act is based on the law of estoppel to the effect that if a man has represented that the transferor consents to an act which has been done and that he would not offer any opposition thereto, although the same could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained, he could not question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.
10. The ingredients of Section 41 of the Act are:-
(1) the transferor is the ostensible owner,
(2 he is so by the consent, express or implied, of the
real owner.
RSA No.1711 of 1989 11
(3) the transfer is for consideration;
(4) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer."
The contention of learned senior counsel for the appellant was that in the present case the ingredients referred to above were neither pleaded nor proved by the plaintiffs, thus, the learned courts below wrongly non-suited the appellant/defendant by invoking Section 41 of the Act. Learned senior counsel also contended that in order to take the benefit under section 41 of the Act it is not enough to show that transferee acted in good faith or paid valuable consideration. He has further to prove that ostensible owner had become such owner with express or implied consent of true owner.
In support of this contention learned senior counsel for the appellant placed reliance on the judgment of this court in the case of Ram Pal Kanwal and others Vs. Sweatamber Sthanic Jain Sabha Faridkot (Regd) and another 1988 R.R.137, wherein Hon'ble Division Bench of this Court has been pleased to lay down as under:-
"26. Refuting the contention, the learned counsel for the plaintiff-respondents placed reliance on the Division Bench judgment of this Court in Gurbinder Singh Vs. Lal Singh and others, in which it was held that if advantage is to be taken of the Rule contained in section 41 of the Transfer of Property Act, it is not enough to show that the transferee was acting in RSA No.1711 of 1989 12 good faith or had paid valuable consideration, but it has further to be proved that the ostensible owner had become such owner with the express or implied consent of the true owner. Since no efforts whatsoever were made by the appellants to verify and ascertain the title to the suit property, the appellants were not entitled in law to claim benefit of section 41 of the Transfer of Property Act"
Learned senior counsel for the appellant also contended that it is not merely inaction on the part of true owner that a presumption of consent could be drawn but there has to be a positive act on the part of the true owner which could lead to an impression that the vendor was ostensible owner of the property sold.
In support of this contention reliance has been placed on the judgment of this court in the case of Gurbinder Singh and others Vs. Lal Singh and others 1958 P.L.R.528, wherein Hon'ble Division Bench of this court has been pleased to lay down as under:-
" It is clear that if advantage is to be taken of this rule, it is not enough to show that the transferee was acting in good faith or had paid valuable consideration, but it has further to be proved that the ostensible owner had become such owner with the express or implied consent of the true owner. Can it then be said in the present case that the Raja of Faridkot was made to appear the ostensible owner of the property by an implied consent on the part of the true owners? It is said that since the RSA No.1711 of 1989 13 true owners did nothing to interfere with the raja's possession or with the transfer made by the Raja in favour of Kehar Singh, it should be inferred that the true owners had impliedly consented to it. I find it impossible to reach this conclusion. Certain decisions of the Lahore High court to which it is unnecessary to refer now, did indicate that some latitude should be shown to a bona fide transferee, but the danger of this latitude was soon realized, and later decisions have repeatedly attested the need of protecting the interest of the true owner even against a bona fide transferee unless it is clear that the true owner himself induced the belief that the ostensible owner could deal with the property. I need only refer to a decision of a Full Bench of the Lahore High Court in Shamsher Chand Vs. Bakshi Mehar Chand, which laid down two clear rules:- (1) "that in order to deprive a real owner of his rights in immovable property it must be established that he had given his consent, express or implied, to another to represent himself as the owner of the said property;" and (2) "that mere inactivity on the part of the real owner even with the knowledge of the transfer could not amount to implied consent within section 41 and could not debar him from acquiring his property from the transferee within the period of limitation unless by some word or conduct on his part he had induced the transferee to believe that his transferor was competent to make RSA No.1711 of 1989 14 the transfer". These are wise rules and I find myself in respectful agreement with them. Looking at the facts of the present case it is clear that if the transferee, i.e. Kehar Singh, had taken the trouble of inquiring into the title of his transferor, i.e., the Raja he (Kehar Singh) could not have failed to discover that the Raja had acquired possession in the course of litigation and that the property had originally belonged to Raj Kaur and Raj Kaur's daughter and daughter's sons were in existence, and further that the Raja's possession was in no manner with the consent of the true owners. It is of no consequence that the true owners did not immediately go to Court to claim their rights and in my opinion, therefore, no advantage can in the present case be taken of the rule in section 41 of the transfer of Property Act."
It is next contended by the learned senior counsel for the appellant that in the present case it could not be said that the plaintiffs made any inquiry as the plaintiffs failed to notice that the sale was made to the defendant/appellant by way of registered sale deed. The registration of document is, in fact, notice to whole world and therefore, it could not be said that the plaintiffs had no knowledge of sale as held by the learned courts below.
In support of this contention reliance has been placed on the judgment of this court in the case of Hira Singh Vs. The State of Punjab and others 1985 P.L.J. 371, wherein this court has been pleased to lay RSA No.1711 of 1989 15 down as under:-
"3. It is the admitted case, however, that the purchase was made by way of a registered sale-deed which is treated to be a public notice of the said fact and none can be heard to plead ignorance thereof. For the reasons afore-mentioned it is held that the respondent-Improvement Trust has failed to comply with the mandatory requirement of section 38 of the Act and, therefore, the sanction accorded to the scheme in question to the extent it concerns the property of the petitioner is vitiated in view of the Full Bench decision of this Court in Prof. Jodh Singh Vs. Jullundur Improvement Trust, 1984 PLJ 413. We, therefore, quash the notification granting sanction issued under sub-section (2) of Section 42 of the Act qua the petitioner. Since notice under section 38 is required to enable the party concerned to file objections to the acquisition of his property or the scheme, we, therefore, direct the petitioner to file his objections, if any on or before 19th July, 1985, which shall be decided in accordance with law. The petition stands disposed of accordingly with no order as to costs."
It is also the contention of the learned senior counsel for the appellant that in the present case there is evidence of DW 6 who was the witness to the sale deed who categorically stated that he had informed the plaintiffs about the sale in favour of the defendant-appellant and he was not cross-examined on the said point. The contention of the learned senior RSA No.1711 of 1989 16 counsel for the appellant, therefore, was that besides the submissions referred to above there was positive evidence on record attributing knowledge to the plaintiffs about the sale deed in favour of the appellant.
Mr. Hitesh Pandit, learned counsel for the respondents controverted the pleas raised by the learned counsel for the appellant primarily on the plea that Ex.P.1 i.e. the mortgage deed in favour of the Central Bank was placed on record which showed that the land was mortgaged by the vendors of the plaintiffs with the Central Bank of India before the execution of the sale deed and no action was taken by the defendant-appellant and therefore, it stood proved that the vendor was projected ostensible owner with the consent of the defendant/appellant.
Learned counsel for the respondents also referred to the evidence brought on record to contend that before the purchase the plaintiffs searched the revenue record where their vendor was shown to be owner of the property in dispute and further the tube-well was got installed therein by the vendor of the plaintiffs.
Finally, it was contended that the learned courts below have recorded a concurrent finding of fact that the plaintiff/respondents were bona fide purchaser and concurrent findings of fact arrived at on appreciation of evidence cannot be challenged in regular second appeal.
On consideration of the matter, I find force in the contention raised by the learned senior counsel for the appellant.
In the present case learned courts below have recorded a RSA No.1711 of 1989 17 positive finding that the sale deed Ex.D.1 in favour of the appellant/defendant stood proved on record. The courts below also held that the land was Banjar Qudim and therefore, the same was to be held to be in possession of true owner of the property. The learned courts below have non-suited the defendant-appellant merely by giving benefit of Section 41 of the Act by holding the plaintiff/respondents to be bona fide purchasers for consideration.
The findings of the learned courts below holding the defendant/ appellant to be bona fide purchaser for consideration cannot be upheld as admittedly, ingredients of Section 41 of the Act were not pleaded or proved. There were neither pleadings nor any evidence on record to show any act or overt act on the part of the appellant/defendant which might have led to hold that it was the defendant/appellant who gave an expression that the vendors were ostensible owners with the consent of the true owner.
In view of the law laid down by the Hon'ble Supreme Court in the case of Hardev Singh Vs. Gurmail Singh (Dead) by LRs. (supra) and of this court in the case of Ram Pal Kanwal and others Vs. Sweatamber Sthanic Jain Sabha Faridkot (Regd) and another (supra) and Hira Singh Vs. The State of Punjab and others, it has to be held that the plaintiffs failed to prove that they were bona fide purchasers for consideration.
For the reasons stated above, the substantial questions of law as framed are answered in favour of the appellant/defendant. The appeal is RSA No.1711 of 1989 18 consequently, allowed and the judgments and decree passed by the learned courts below are ordered to be set aside and the suit filed by the plaintiff/respondents is ordered to be dismissed but with no order as to costs.
5.03.2009 (Vinod K.Sharma) rp Judge