vil Appeals Nos
1002  1003 of 1976
From the Judgment and Order dated 3101972 and 189
1975 of the Allahabad High Court in Civil Misc
Writ No 2726 of 1970 and Civil Misc Writ Petition No 9943 of 1975
Satish Chander SN Singh TN Singh and HL Srivas tava for the Appellants
JP Goyal MR Bidsar and SK Jain for the Respondents
The Judgment of the Court was delivered by FATHIMA BEEVI J
These appeals by special leave are directed against the judgments of the High Court of Allaha bad
The land in plots Nos
6385 and 6386 measuring 5 bighas and 4 biswas had been in the possession of Ram Dayal as mortgagee under Baijnath who was the original tenant
Re spondents 1 to 3 are the descendants of Ram 960 Dayal
They made an application under section 9 of the UP Consolidation of Holdings Act 1954 before the Consolidation Officer
They claimed tenancy fights on the basis of the deed dated 3071945 and they stated that their names had been recorded in the Khatauni of 1359 Fasli they are in cultivatory possession and have become adhivasis and subse quently sirdars
They alleged that the names of the appel lants herein have been wrongly entered in the Khatauni of 1353 Fasli and that the appellants have no right or posses sion over the land
The respondents prayed for entering their names as sirdars and scoring off the names of the appellants
This application was allowed by the Consolidation Offi cer by order dated 2371967
The order was reversed by the Settlement Officer Consolidation
The Deputy Director of Consolidation dismissed the revision filed by the respond ents
However the writ petition filed by the respondents as CMWP No 2726 of 1970 was allowed by the High Court by its judgment dated 3101972 and the orders of the appellate and the revisional authorities were quashed thereby main taining the order of consolidation Officer
Civil Appeal No 1002 of 1976 is directed against the judgment dated 3101972 of the High Court
The appellants had filed a Special Appeal on 30th Novem ber 1972 against the judgment dated 3101972 of Single Judge of the High Court in CMWP No 2726 of 1970
Howev er the said Letters Patent Appeal was not maintainable and ultimately dismissed in view of the UP High Courts Aboli tion of Letters Patent Appeal Amendment Ordinance 1972 which came into force on 30th June 1972
This completes the narration of the fate of the writ petition No 2726 of 1970 which finally culminated in favour of the respondents by order dated 31072
The appellants did not challenge the order of the High Court dated 31072 by taking any further steps of filing any special leave petition before this Court
On the con trary on some mistaken and totally wrong advice of some counsel the appellants again initiated fresh proceedings by moving an application on 6773 before the Settlement Offi cer Consolidation
That application was rejected on 301074
A revision was filed against that order before the Deputy Director of Consolidation which was also rejected by order dated 21775
Thereafter the appellants filed CMWP No 9943 of 1975 before the High Court on 7875 against the order of the Deputy Director Consolidation
This writ petition came to be dismissed by 961 order dated 189
This judgment of the High Court is challenged in Civil Appeal No 1003 of 1976
When the High Court in the earlier Writ Petition No 2726 of 1970 on the same subject matter had finally decided the matter in favour of the respondents by order dated 310
1972 there was no question of giving any advice by any counsel in good faith to start proceedings afresh by moving a fresh application before the Consolidation authorities
No counsel could have given such advice in good faith to start proceedings afresh before the Consolidation authorities and then to claim benefit of such period under section 14 of the 
It was elementary for any counsel of whatever standing to have known that none of the authorities of the Settlement or Consolidation department could have any right or juris diction to set aside the order of the High Court dated 3101972
The Settlement Officer Consolidation as such was justified in dismissing the application by his order dated 3010
1974 and thereafter the revision by the Deputy Director Consolidation by order dated 217
The appellants then under the same mistaken advice not in good faith filed CMWP No 9943 of 1975 which came to be dismissed by the High Court on 189
The second judg ment of the High Court is now challenged in Civil Appeal No 1003 of 1976
Both the appeals had been filed after the expiry of the period of limitation
The appellants had applied for condo nation of delay on the ground that the appellants had been prosecuting the prior proceedings in good faith on legal advice and the period of more than three years taken in prosecuting the proceedings is liable to be excluded in computing the period of limitation under the provision of section 14 of the 
The respondents had filed counter to the application and opposed the same
This Court granted special leave vide order dated 29
1976 in both matters subject to the right of the respondents to argue the question of limitation and the applicability of section 14 of the at the hearing of the appeals
The first question that we have to decide is that of limitation
The delay of 1198 days according to the appel lants had occurred unwillingly and the appellants had been prosecuting with due diligence the earlier proceedings before the appellate and the revisional authorities and on the basis of the advice given by their counsel
There is no proper affidavit of either the appellants or the counsel in support of the application for condonation of delay
There is also no other material to indicate that the appellants had exercised due diligence in work 962 ing out their remedies and sought proper advice in the matter
When the party had no right of appeal the proceed ings instituted before the High Court challenging the judg ment in the writ petition cannot be considered to be one in good faith
The subsequent proceedings are also not legal or valid
When the decision of the High Court in the writ petition was one quashing the orders of the appellate and the revisional authorities the party could not proceed on the basis that the matter was restored to the lower authori ties for fresh decision
We are therefore not satisfied that there is any merit in the ground urged by the appellants for getting over the bar of limitation
The appeals are liable to be dismissed as time barred
We find that even on the merits the appellants cannot succeed
The respondents based their claim on the patta in their favour under the deed of 3071945
The Consolidation Officer accepted the genuineness of the deed and found title with the respondents
The appellants had claimed right under the subsequent document of 28
1945 in continuation of an earlier deed of 2311
The land was admittedly in the possession of Baijnath the original tenant and he was dispossessed in execution of the decree obtained by the landlord in 1944
The tenancy in favour of Baijnath was subsisting when the deed of 2311
1943 was executed
The creation of a tenancy during the subsistence of the earlier one could not confer any right
Before the deed of 28
1945 patta was already granted in favour of the respondents
The circumstances under which the same was granted also weighed in finding title in favour of the respondents
The landlord had obtained a decree against Baijnath when the land was mortgaged in favour of Ram Dayal
The mortgagee later on obtained the decree against the landlord for an amount of Rs214 being the value of the crops in the land
An agree ment was subsequently entered into between the landlord and the respondents settling the claim under the decree and granting patta in favour of the respondents
These facts have been found in favour of the respondents by the Consoli dation Officer
The High Court in quashing the orders of the appellate and the revisional authorities was of opinion that there was apparent error on the face of the record
The appellate authority was found to be wrong in its conclusion that the respondents lost their right by the continued possession of the appellants
The High Court noticed that even before the Consolidation Officer the appellants did not press their claim on the basis of the patta of 1943 and has also found that the deed of 23111943 was not a valid settlement inasmuch as the land was in the possession of the sitting tenant
It was also noticed that soon after the deed of 281945 dispute arose regarding possession that the 963 appellants had been dispossessed on the basis of the decree obtained by the respondents setting aside the order of a criminal court
Before the decree became final pending litigation the UP Zamindari Abolition Act came into force
In view of the subsequent legislation the respond ents have proceeded under the UP Consolidation Act and the proceedings culminated in the present appeals
In the light of the definite findings of the competent authority that the respondents have derived valid title as tenants under the deed of 307 1945 and the apparent mis take in the proceedings of the appellate and the revisional authorities as found by the High Court it is not now open to the appellants to contend that they are rightful tenants entitled to possession of the land
Though the claim based on deed of 23111943 had not been pressed before the lower authorities it has been contended before us that the appel lants have a case on the principle contained in section 43 of the Transfer of Property Act
The learned counsel for the appellants maintained that even if the deed of 2311
1943 was inoperative or was not valid for the reason that the landlord had no possession since they obtained possession on 3061944 the appellants acquired tenancy right and that has been confirmed by the deed of 28
The argument though attractive is not acceptable
Section 43 of the Transfer of Property Act embodies the rule of estoppel by deed
The section enables the transferee to whom a transfer is made on fraudulent or erroneous repre sentation to lay hold at his option of any interest which the transferor may subsequently acquire in the property provided by doing so he does not adversely affect the right of any subsequent purchaser for value without notice
Thus when a lessor erroneously represents that he is authorised to lease a property and creates a lease of it and afterwards acquires that property the lessee is entitled to have the property from the lessor
This principle has no application if the transfer is invalid
The transfer under the deed of 2311
1943 became inoperative not on account of any fraudu lent or erroneous representation
The settlement was invalid and inoperative on account of the subsisting lease in re spect of the land and as the landlord could not super impose a second lease in respect of the tenanted property no interest could be created in favour of the appellants under that document and therefore there is no question of feed ing the estoppel
The execution of the deed dated 307
1945 in favour of the respondents negatives the claim of the appellants having acquired any right after the property was taken delivery of in 1944
We therefore reject the conten tion
964 We accordingly hold that there is no valid ground to interfere with the decision of the High Court
We therefore dismiss the appeals
In the facts and circumstances of the case we direct the parties to bear their respective costs
SB Appeals dismissed


Summary:
The respondents in each of these three cases was sub jected to assessment under the UP Sales Tax Act
In each of these cases the assessee preferred an appeal to the first appellate authority and moved an application for the waiver of any deposit of the tax which was necessary before the appeal could be entertained
The first appellate authority in two of the cases dismissed the application and in the third directed the assessee to deposit 10 of the disputed tax within ten days from the date of the order
Dis satis fied with the orders of the first appellate authority each of the assessees preferred an appeal to the Tribunal
The Tribunal in all the three cases directed the assessee to pay 10 of the assessed tax before the appeal could be enter tained
Each of the assessees preferred a revision petition before the High Court
The High Court held that the condition requiring deposit of tax was not applicable in the instant case of Ms Atma Ram Misra as no returns at all had been filed by the asses see for the relevant assessment year and no turnover stood admitted by the assessee at any stage of the assessment proceedings which was followed in the other two cases with the result that the first appellate authority was held bound to entertain the appeals of the assessee without calling upon it for deposit of any portion of tax
The department has preferred these appeals by special leave against the decision of the single judge of the High Court in all the three cases
This Court while dismissing the appeals made it clear that it did not agree with the High Court s interpretation of the statutory provisions and HELD The provision in question makes two relaxations
It does not make it obligatory on the assessee to deposit the entire amount of assessed tax
It restricts the deposit to 20 of the assessed tax
1039C 1032 It empowers the appellate authority to waive or relax the requirements of clause b
1039C The deposit contemplated under clause b also covers cases where no returns have been filed and no admission of any turnover has come from the assessee
1039E This however does not in any way affect the power of the appellate authority to waive or reduce the amount to be deposited depending on the circumstances of each case under the proviso to the above subsection
1039G Vishamber Nath vs Commissioner of Sales Tax UP 1979 UPTC 1276