Jagan Nath and others vs Raj Kumar and others

J.V. Gupta, J.—This is Plaintiff''s second appeal whose suit for possession of one kanal four marlas of land has been dismissed by both the Courts below.

The controversy relates to the agricultural land measuring one kanal four marlas comprised in killa No. 17/4 (0-18 Marias) and killa No. 24/2 (0-06 marlas) of rectangle No. 7. Khusala Mal had two sons.

Basanta Mal and Mansa Ram. Basanta Mal had two sons, Ram Dass and Jagan Nath, Plaintiffs whereas Mansa Ram had two sons, Kewal Krishan and Basheshar Nath, Defendants Nos. 1 and 2. According to the Plaintiffs, Basanta Mal purchased one kanal eight marlas of land comprised in khasra No. 1886 in the year 1902. In the year 1912, consolidation of holdings took place in the village and in lieu of the old khasra No. new khasra No. 2291 was allotted. Basanta Mal died in the year 1960. After his death, mutation was sanctioned of the said land in favour of his two sons, Ram Dass and Jagan Nath. In the year 1926, Defendants Kewal Krishan and Basheshar Nath filed a suit for declaration against Ram Dass and Jagan Nath, Plaintiffs. That suit was decreed on a compromise. When the mutation was sanctioned on the basis of the said decree, the land measuring one kanal eight marlas comprised in khasra No. 2291 was matated in their favour assuming that it was also covered under the decree, whereas the decree did not relate to the said land. However, the said mutation entry in favour of both the Defendants continued from the year 1926 onwards and was also incorporated in the jamabandis. In the year 1959, consolidation of holdings again took place in the village. Therein, the said area was allotted to Defendants Kewal Krishan and Basheshar Nath in view of the revenue entries in their favour. Not only that in the year 1959, the Defendants sold the suit land to Puran Chand, Defendant. In the year 1960, Puran Chand sold the said land to Om Parkash and Ajudhia Parkash, Defendants Nos. 4 and 5. In the year 1969, Om Parkash, Defendant No. 5, further made a gift of the land purchased by him in favour of his daughter Sudesh Kumari, Defendant No. 6. The Plaintiffs filed the present suit on May 25, 1970 claiming themselves to be the owners of the suit land. According to them, the suit land was purchased by their father Basanta Mal, but in the year 1926, the mutation was wrongly sanctioned with respect to the suit land in favour of the Defendants on the basis of the compromise decree though the suit land was never the subject-matter of the said compromise. According to the Plaintiffs, they had been in possession of the suit land earlier, but later on since it was included in a pond, they were deprived of its possession. When the Defendants started construction on the suit land and claimed ownership thereof, they immediately filed the present suit for possession. In the written statement, the Defendants denied the claim of the Plaintiffs. They also denied that the Plaintiffs were ever in possession of the land. According to the Defendants, prior to Defendant No. 5, Defendant No. 3 who had purchased it from Defendants Nos. 1 and 2 was in actual possession thereof. Plea u/s 41, Transfer of Property Act, (hereinafter called the Act) was also taken and it was averred that the vendees were the bona fide purchasers for consideration without notice. The trial Court found that the suit land was not allotted during the consolidation of holdings in lieu of the land measuring one kanal eight marlas comprised in khasra No. 2291. It was further held that the Plaintiffs were estopped from filing the suit because Ram Dass was present when the mutation was sanctioned. However, Jagan Nath, Plaintiff, was not held to be estopped from filing the suit because he was not present when the mutation was sanctioned. As regards the vendees, it was held that they were bona fide purchasers for value without notice. Gift by Defendant No. 5 in favour of his daughter, Defendants No. 6, was also held to be valid. In view of these findings, the Plaintiffs'' suit was dismissed. In appeal, the learned Senior Subordinate Judge, with enhanced appellate powers, affirmed the findings of the trial Court except under issue No. 3 which was to the effect: whether the Plaintiffs are estopped from filing this suit by their acts and conduct ? It was held thereunder that even Ram Dass, Plaintiff, was not estopped from filing the suit because he had not waived his right. Consequently, the appeal filed by the Plaintiffs was dismissed. Dissatisfied with the same, they have come up in this second appeal to this Court.

The learned Counsel for the Appellants contended that it has been wrongly held that the suit land had not been allotted in lieu of the old khasra No. 2291. According to the learned Counsel, the findings of the Courts below in this behalf are wrong and illegal. The learned Counsel further contended that the provisions of Section 41 of the Act, were never complied with because under the proviso thereto, the transferee is to act in good faith after taking reasonable care to ascertain that the transferer had the power to make the transfer. This, according to the learned Counsel, was not even pleaded in the written statement and there was absolutely no evidence on the record to prove the same, Thus, argued the learned Counsel the findings of the two Courts below in this behalf were illegal and misconceived. In support of the contention, the learned Counsel relied upon Nageshar v. Raja Pateshri A. I. R. 1915 P. C. 103, Shamsher Chand v. Bakhshi Mehr Chand A. I. R. 1947 Lah. 147,: Dwarka Das L. Shambhu Nath and Others Vs. Rangi Lal Munna Lal and Others, Mehdi Hasan Vs. Ram Ker, and Suraj Ratan Thirani and Others Vs. The Azamabad Tea Co. and Others,

I have heard the learned Counsel for the parties and have also gone through the relevant evidence on the record.

The main thurust of the argument raised on behalf of the Appellants is that the vendees never made any enquiry as to ascertain that the transferor had the power to make the transfer and, thus, he had not acted in good faith. As a matter of fact, it will be a question of fact in each case as to whether the vendees acted in good faith after taking reasonable care to ascertain that the transferer had the power to make the transfer as contemplated u/s 41 of the Act. In the present case, on the appreciation of the entire evidence, it has been concurrently found by both the Courts below that the transferees were the bona fide purchasers for value and without notice. It being a finding of fact could not be interfered with in second appeal.

Apart from the above, as regards the facts of the present case, the mutation in favour of Kewal Krishan and Basheshar Nath, Defendants, with respect to the suit land was entered in the year 1926 and it continued as such till the year 1959, i. e., for more than three decades when the consolidation of holdings again took place in the village. At that time, in view of the entries existing in the revenue record in favour of the Defendants, the land was allotted to them. Thereafter, the land was sold in the year 1959 to Puran Chand who consequently sold the same to Defendants Nos. 4 and 5. During all this period, the Plaintiffs never cared to take any steps as to get the entires corrected. Not only that, the Plaintiffs were never found to be in possession of the suit land during the said period The mere fact that the suit land was shown as a pond does not advance the case of the Plaintiffs in any manner ; rather it shows that neither they were shown as the owners in the revenue record, nor they were in possession of the suit land. In these circumstances, there was no occasion for the transferees to make any further enquiries and to go behind the entries in the revenue record in favour of their vendor. A vendee who accepts a transfer on the faith of the entries in the record of rights in favour of his transferor is protected u/s 41 of the Act if there was no circumstance which should have led him to go behind the revenue records and to make further enquiry in the present case, no such circumstance has been pointed out from which it could be concluded that there was any occasion for the transferees to go behind the revenue record and to make further enquiries. Earlier, the mutation was sanctioned on the basis of the decree based on the compromise. Later on, in the jamabandis, the transferor was shown as the owner throughout. The possession of the suit land was duly transferred in favour of the vendees-Defendants. From these facts, it has been rightly concluded by the Courts below that there was no circumstance which could have led the transferees to go behind the revenue entries and to make further enquiries. The authorities relied upon by the learned Counsel for the Appellants are clearly distinguishable and have no applicability to the facts of the present case.

In Suraj Rattan''s case (supra), it was observed by their Lordships of the Supreme Court that where the management of the property is left by the co-sharers with the transferor-cosharer and except the fact that the property is entered into the revenue record in the transferor''s, name and there is no other evidence to establish that the transferor was put forward by them as the ostensible owner of the property, the conduct of co-sharers in permitting one of them to manage the common property does not by itself raise any estoppel precluding them from asserting their rights. Such is not the position in the present case. The Plaintiffs at no stage told the vendees that they were the real owners of the suit land as to put them to any reasonable care to ascertain whether their transferor had the power to make the transfer or not.

Under the circumstances, this appeal fails and is dismissed with no order as to costs.