RSA No.2067 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2067 of 1984 Date of Decision: 21.01.2010 Tharu Ram ..Appellant Vs. Jatinde Singh & Anr. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Sanjay Majithia, Sr. Advocate, with Mr.Shailender Sharma, Advocate, for the appellant. None 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. (Oral) This appeal by the defendant-appellant, is directed against the RSA No.2067 of 1984 2 judgment and decree dated 2.05.1984 passed by the learned Additional District Judge, Gurdaspur vide which suit filed by the plaintiff/respondents for permanent injunction stands decreed. Plaintiffs through their mother Smt.Kamlesh Kumari filed a suit for injunction restraining the appellant/defendant from constructing upon or interfering, in any manner, in the vacant land or Khola No.32 owned and possessed by the plaintiff/respondents at village Darsopur Tehsil Pathankot. The suit was filed by the plaintiff/respondents on the pleadings, that Master Risal Singh son of Bachittar Singh, grand-father of the plaintiffs, was the owner in possession of the suit land marked ABCD as mentioned in the head-note of the plaint, and the other properties including a residential house No.30 and Khola No.32 in abadi deh of village Darospur Tehsil Pathankot. Master Risal Singh died about 1½ years back, and after his death plaintiffs were owners in possession of the suit land, and all other property of their grand-father. All the properties were bequeathed in favour of the plaintiffs, by way of registered Will dated 13.11.1979. The case set up was, that the defendant without any right or title over the suit land was trying to raise some sort of construction, and for that purpose had collected bricks and other material near the suit land. The defendant threatened to raise construction with force. The case of the plaintiffs was, that the defendant was requested not to do so, but he finally refused, therefore, necessity arose to file the suit. On notice, defendant/appellant appeared, and contested the suit by taking preliminary objection, that the suit was not maintainable in the RSA No.2067 of 1984 3 present form, as the plaintiffs were not in possession of the site in dispute, nor they were in possession of the same before the filing of the suit. The defendant had already constructed pucca room over the suit land before institution of the present suit, and that the construction was complete by 20th June, 1981. Possession of the disputed property was handed over to the defendant, by the vendor i.e. the father of the plaintiff Narinder Singh on 25.3.1981, when he sold the site in dispute by way of registered sale deed dated 25.3.1981. The defendant/appellant claimed possession since the date of purchase. It was also mentioned that the name of father of plaintiffs was Naginder Singh and not Narinder Singh as wrongly shown in the plaint. On merit, averments made in the plaint were denied. It was also denied that Master Risal Singh had died 1½ years ago, or that after the death of Risal Singh, the plaintiffs were owners in possession of the suit land and other properties. It was admitted that master Risal Singh was grand-father of the plaintiffs. Case of the defendant-appellant was that after the death of Risal Singh, Naginder Singh succeeded to his estate being his only son, who sold the suit land to the defendant by way of registered sale deed, and delivered actual physical possession of the site in dispute. The case of the defendant-appellant was that after taking possession, pucca structure, over the land in suit was constructed before filing the suit. It was denied that any Will was executed by Risal Singh. The authority of Master Risal Singh to execute the Will was also disputed. It was claimed that the Will was fictitious, bogus, void and a nullity. It was also the case set up, that the propounded Will never saw the light of the RSA No.2067 of 1984 4 day. It was not produced before the revenue officer at the time of sanctioning of mutation of the suit land of Risal Singh in the name of Naginder Singh. Defendant-appellant also pleaded to be bona fide purchaser, for consideration without notice and therefore, sought protection of section 41 of the Transfer of Property Act. The case of the defendant was, that father of the plaintiffs before the sale was in actual possession of the suit land, and throughout asserted that he was exclusive and sole owner of the land. Naginder Singh, vendor, the plaintiffs and their mother was jointly residing in the same house and were joint in mess and other domestic matters. Suit was, therefore, claimed to be collusive and financed by Naginder Singh. It was denied, that the plaintiffs were owners in possession of the suit land or that they were enjoying it peacefully by using it as haveli. In the replication, averments made in the plaint were reiterated and those of the written statement were denied. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the plaintiffs are owners in possession of the suit property? OPP 2. If issue No.1 is proved whether the defendant threaten to interfere in the possession of the plaintiffs? OPP 3. Whether the defendant is bona fide purchaser of the suit land without notice? OPP RSA No.2067 of 1984 5 4. Whether the present suit is filed by the plaintiffs in collusion with their father? If so, its effect? 5. Relief. Issues No.1 and 4 were taken up together. The case of the plaintiffs was supported by the witnesses produced, to prove the execution of the Will, and that the plaintiffs were in possession of the suit property under the Will. Evidence was also led to prove that the defendant was trying to take forcible possession of the suit land. The defendant in support of issues No.1 and 2 proved on record the sale deed Ex.D.1, showing that the suit property was sold by Naginder Singh to the defendant-appellant and that the possession was also given. It was also proved that the plaintiffs along with their mother were residing with Naginder Singh. It was proved that it was a collusive suit filed at the instance of Naginder Singh. Reliance was also placed on mutations Ex.D.3, D.4 and Ex.D.5, vide which the estate of Risal Singh was inherited by Bui Ditti, his widow i.e. grand-mother of the plaintiffs, Naginder Singh his son and Leelo Devi, his daughter. Land after inheritance was further proved to have been mortgaged by Bui Ditti and Leelo Devi. Therefore, in case, there was a valid Will it could have been produced before the revenue authorities at the time of sanction of mutation. Learned trial court on appreciation of evidence, came to the conclusion that even if the plaintiffs are held to be owners under the Will, their possession over the plot was not proved, as they failed to show as to RSA No.2067 of 1984 6 how they came in possession of the plot. Whereas, in the sale deed it was clearly stipulated that the possession of the plot was handed over to the defendant-appellant. The learned trial court also held that it was not proved that the construction was raised by the appellant after the stay order. The learned trial court decided issue No.1, by holding that the defendant was in possession of the plot in dispute since the date of the sale deed. The learned trial court further held, that the suit was filed by the plaintiffs, in collusion with their father. The plaintiffs were held to be not owners in possession, of the plot in dispute and both the issues were decided in favour of the defendant and against the plaintiffs/respondents. Issue No.2 was held to be redundant but a finding was recorded that the defendant being owner in possession of the plot in dispute, there arose no question of threat. Issue No.3 was also decided in favour of the defendant- appellant, and it was held that he was bona fide purchaser of the plot in dispute without notice, and therefore, entitled to protection under section 41 of the Transfer of Property Act. The suit of plaintiff/respondent was ordered to be dismissed. In Appeal, learned lower appellate court did not answer issue- wise findings. It was held by the learned appellate court that the Will Ex.P.1 was proved, to have been executed by Risal Singh in a sound disposing state of mind. In view of this finding, learned lower appellate court went on to decide the question as to whether the defendant/appellant was entitled to protection under section 41 of the Transfer of Property Act. Learned lower RSA No.2067 of 1984 7 appellate court held that as the defendant/appellant could have easily found out from the office of Sub-Registrar about the Will, therefore, appellant could not claim benefit of section 41 of the Transfer of Property Act, as in order to claim benefit the following conditions were required to be fulfilled: “i) The ostensible owner should be occupying the property in dispute with express or implied consent of owners. ii) The transferee from ostensible owner should have taken reasonable care to ascertain that the transferor had the power to make the transfer. iii) The transferee should have acted in good faith. iv) Transfer should be for consideration and without notice. Learned lower appellate court recorded the following findings with regard to possession:- “12. In this case, Naginder Singh was occupying the property, but he was not occupying the property with the express or implied consent of the real owners. The real owners are minors and they are incapable of giving their consent. In order to deprive the real owner of his right in immovable property, it must be established that he had given his consent express or implied to another to represent himself as owner of the said property. Mere inactivity on the part of real owner. Even 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 RSA No.2067 of 1984 8 limitation unless by some word or conduct on his part he had inducted the transferee to believe that his transferor was competent to make the transfer. In the instance case, the real owners were minors and incapable of giving their consent. They were incapable by word or conduct of inducing. Thuru to believe that Naginder Singh was competent to make transfer. Section 41 of the Transfer of Property Act thus does not come to the rescue of Thuru.” In spite of positive finding regarding possession, the learned appellate court held, that as it is permissible for the court to take subsequent events into consideration, and keeping in view the fact construction was raised after filing of suit it has to be held that the plaintiff/respondents were in possession of the suit property, and reversed the findings of the learned trial court. The appeal was allowed and the suit for injunction was decreed, without modifying the relief. The judgment and decree is passed by the learned appellate court in casual manner. Mr.Sanjay Majithia, learned senior counsel for the appellant contended that this appeal raises the following substantial questions of law for consideration by this court:- 1. Whether the suit for injunction was competent by the plaintiffs who were not in possession of the suit land on the date of filing of the suit? 2. Whether the appellant is entitled to benefit under section 41 of the Transfer of Property Act being bona fide RSA No.2067 of 1984 9 purchaser for consideration? 3. Whether the learned lower appellate court could reverse the findings recorded by the learned trial court without meeting with the reasoning given by the learned trial court? In support of the substantial questions of law, learned senior counsel for the appellant contended, that a positive finding was recorded by the learned trial court, that the defendant-appellant was in possession on the date of filing of the suit. The plaintiffs were not in possession. Learned lower appellate court, also in para No.12 of the judgment reproduced above, recorded a positive finding that Naginder Singh, father of the plaintiffs, was in possession of the property. It is not in dispute, that by way of registered sale deed he handed over possession to the defendant- respondent. Once a concurrent finding was recorded by learned courts below holding that the plaintiffs were not in possession of the property in dispute, learned lower appellate court was not justified to reverse the findings by the learned trial court, on the ground that subsequent events could be looked into. Once it was proved that the plaintiffs were not in possession of the suit property on the date of filing of the suit, the suit for injunction was not competent. The first substantial question of law, therefore, is answered in RSA No.2067 of 1984 10 favour of the appellant, it is held that the suit filed by the plaintiff/respondents for injunction was not competent. On the second substantial question of law, learned counsel for the appellant contended that it was proved, that Naginder Singh was residing with the plaintiffs and their mother, and was in possession of the property in dispute with express consent of his sons and wife. Consent of the respondents was proved by the revenue record produced vide which mutation of inheritance was sanctioned in favour of Naginder Singh which was not challenged by the plaintiffs in any competent court of jurisdiction. Rather the grand-mother and their maternal aunt was allowed to mortgage the property. It was, thus, proved that Naginder Singh was in possession of the property as ostensible owner, with express consent of the plaintiff/respondents. It was also proved that care was taken by the defendant/appellant, at the time of purchase, by examining the revenue record, where the mutation of inheritance for sanction in favour of legal heirs of Master Risal Singh, who had further in pursuance to inheritance, transferred the land to different persons including Naginder Singh. The evidence led also proved, that transaction was entered into by the defendant-appellant in good faith and was for consideration, without notice of the Will, as admittedly the Will saw the light of the day for the first time in the suit. The learned trial court was right in extending the benefit of Section 41 of the Transfer of Property Act to the defendant/appellant, as all the conditions stipulated in Section 41 of the RSA No.2067 of 1984 11 Transfer of Property Act stood fulfilled. The second substantial question of law is also answered in favour of the appellant. Reading of the judgment of learned lower appellate court further shows, that no issue-wise findings were recorded. Furthermore, reasoning given by the learned trial court in support of the findings on each of the issues, has not been specifically met. It is well settled law that the appellate court while reversing the findings of learned trial court is required to meet the reasoning given by the learned trial court. The third substantial question of law is also answered in favour of the appellant. Consequently, this appeal is allowed. The judgment and decree passed by the learned lower appellate court is set aside and that of the learned trial court is restored but with no order as to costs. (Vinod K.Sharma) 21.01.2010 Judge rp