IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 130 of 1995 Judgment reserved on 27.7.2009 Date of Decision:- 30th July, 2009 __________________________________________________________ Fatu Ram & others. ….Appellants. Versus Madan & others. ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. __________________________________________________________ RSA No. 130 of 1995 For the Appellants: Shri K.D. Sood, Advocate. For the Respondents: Shri Rajiv Jiwan, Advocate. __________________________________________________________ Dev Darshan Sud, J. This is the defendants’ appeal against the judgment and decree of the learned District Judge reversing the judgment and decree of the learned Sub Judge Ist Class, Ghumarwin in the suit instituted by the plaintiffs-respondents praying for declaration that they are joint owners with the defendants (respondents herein) of the suit land and injunction restraining them from interfering in their possession. The case as pleaded before the learned trial Court was that the land measuring 16.5 bighas comprised in Khasra No. 244, 249, 251, 255, Khata Khatoni No. 79/99, situated in village Hari Talyanagar, Pargana Ajmerpur, Tehsil Ghumarwin District Bilaspur is jointly owned and possessed by the plaintiffs and 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 defendants and the plaintiffs have half share over the suit land. It was pleaded that an application under Section 123 of the Himachal Pradesh Land Revenue Act for partitioning the land was filed which application was contested by the appellants herein on the ground that determination of title was involved which was to be adjudicated from a Court of competent jurisdiction. The plaintiffs’ further case is that the defendants-appellants in connivance with the revenue staff had the entries changed in the revenue records showing them to be non-occupancy tenants. These entries were wrong and not binding on the interests of the plaintiffs. The suit was resisted by the defendants-appellants primarily on the ground that they are owners in possession of the suit land. The defendants pleaded that the plaintiffs-respondents had filed an application for partition before the Assistant Collector Ist Grade, Ghumarwin on 6.9.1952 in which the question of title arose for determination which was ultimately held against the plaintiffs by the Judicial Commissioner of Himachal Pradesh. This case was not persued any further and the plaintiffs entered into a compromise with the defendants selling their shares for Rs. 700/- each out of which Rs. 400/- was paid as part consideration. The final sale deed(s) was not executed as the plaintiffs were Marusi tenants and when they became owners, they were asked to execute the documents, but of no avail. The learned trial Court on the pleadings of the parties settled as many as 13 issues. The issues central for determination of the entire controversy were:- (a) Whether the suit land was jointly owned by the plaintiffs and defendants? (b) Whether the entries in the name of defendants as non- occupancy tenants were wrong ? These were held against the plaintiffs and the suit was dismissed. In appeal, although the learned District Judge holds that two agreements which transferred the interest of the plaintiffs in the land namely Ext.DW2/A and 3 Ext.DW2/C were in fact executed between Durga Ram (plaintiff No. 2) and Girdhari (predecessor in interest of the defendants) and Shankar Dass plaintiff No. 1 and Girdhari, but the defendants were not entitled to the protection of Section 53-A of the Transfer of Property Act. The Court held that these agreements were not bindings on the interests of the plaintiffs as they were against the provisions of the law governing tenancy. This appeal has been admitted by this Court on substantial questions of law No. 1 to 3 and 6:- 1. Whether the basic documents of title Exhibits DW2/A, DW3.A, DW3/C, DW3/B and DW3/A have been misread and misconstrued and the suit of the plaintiffs were liable to be dismissed in view of Section 53A of the Transfer of Property Act? 2. Whether on the proper construction of the provisions of Section 53 of the Transfer of Property Act and the facts that agreements having been held to have been duly executed by the plaintiffs/respondents, the principal of “feeding the estoppel” applied to the present case? 3. Whether the findings of the Court below that it was not established that the agreements to sell were not proved to be relatable to the property in dispute are sustainable in law in view of the facts and circumstances of the case? 6. Whether on the facts and circumstances of the case, the suit of the plaintiffs/respondents was within limitation? I have heard the learned counsel for the parties and have gone through the record of the case. Questions No. 1 to 3 These three questions are being taken up together for consideration. The factum of execution of the documents Ext.DW2/A by Durga son of Tungal (plaintiff No. 2) in favour of Girdhari (whose interest was represented by his legal representatives) and Ext.DW3/C between Shankar Dass, son of Daya Ram, plaintiff No.1, and Girdhari is established on record and it is accepted by both 4 the Courts below. The documents on record also establish that it is the predecessor in interest of the defendants namely Girdhari Lal who is in possession of the suit land. There is also no denying the fact that the subject matter of the suit land which was transferred by Shankar Dass and Durga was situated in Hari Talyangar where they no longer reside. It is also admitted by PW1 Shankar Dass that they do not reside in Hari Talyangar. This fact has not been controverted. The learned District Judge while construing this document holds that there is no identification of the land. Nothing can be farther from the truth. Both these documents are clear when they state that the plaintiffs have given up their shares of the land in Hari Talyangar and transferred it to the defendants. What other identification was required is not clear. There is no evidence on record to show or establish that plaintiffs possessed any other land in Hari Talyangar. The learned Appellate Court has misinterpreted and misread both these documents. Learned counsel appearing for the appellants submits that the Court was clearly wrong in holding that the agreements could not be enforced in law as there was prohibition on the transfer of this land. He urges that under Section 43 of the Transfer of Property Act (hereinafter referred to as Act), in case the transferor acquires interest upon a portion of land, subsequently the transferee would be entitled to the protection under Section 43 of the Act and the transaction cannot be held as void. He places reliance on a judgment of the High Court of Allahabad in “Hori Lal Vs. Kalyan and others ILR 1950 Allahabad 311 holding that “ It was further held that even if under the law in force in 1915 the grove was an exproprietary holding and the mortgage was void, by the application of section 43 of the Transfer of Property Act, the transfer should operate on the interest then held by the defendant, there being no doubt whatever that with the passing of the Local Act III of 1926 the defendant had become capable of making the transfer in question. It follows, therefore, that even if it be assumed that the transfer was bad when it was made, by operation of section 5 43 of the Transfer of Property Act, it became valid when the interest of a grove-holder became transferable. Learned counsel for the appellant has sought to distinguish Kanwar Bahadur’s case (1) on the ground that in that case the transfer was made after the Tenancy Act of 1901 had come into force. I do not consider that this makes any difference. This ratio of the decision is that a transfer made at a time, when it was prohibited by law, becomes valid by virtue of section 43 of the Transfer of Property Act when a subsequent Act removes the bar to the transfer. In my opinion, it makes no difference whether the bar is created by one Act or another” He submits that in Niyaz Ahmad & others Vs. The D.D. C.,Varanasi and others, 1986 All.L.J. 759. The Allahabad High Court retreiated this principle. In this case the transfer was prohibited by the U.P. Zamindari Abolition and Land Reforms Act (1 of 1951). The Court held that “9. Apart from Section 134 of the Act, the assistance can be had from Section 43 of the Transfer of Property Act, which enacts a rule of “feeding the grant by estoppel”. In other words when a person transfers property to which he has no transferable title, on the date of transfer, but he makes representation that he has transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration, and in the meanwhile, if the transferor acquires transferable rights, he (transferor and his privies) would be estopped by the English Common law doctrine of ‘estoppel by deed’ from denying that he has no transferable rights. There is an equitable doctrine applicable to such situation. “equity treats that as done which ought to be done.” 14. The Supreme Court in Ram Pyare v. Ram Narain, AIR 1985 SC 694 : (1985 All LJ 278) held in similar facts in respect of a transaction before the U.P. Amendment Act No. 21 of 1962 that Section 43 of the Transfer of Property Act enacts a rule of estoppel which is of evidence, and the representation as to title made by a transferor (Sirdar) who has no title at the time of transfer, but the title or interest acquired 6 later on (the Bhumidhari rights acquired on the grant of Bhumadhari sanad) would fasten itself on the title which the transferor subsequently acquires and the transfer so made before in favour of the transferee, before the grant of bhumidhari Sanad, would be legal and the vendor (or his privies) would be estopped from denying such right in favour of the transferees.” Two more judgments have been relied upon for supporting the principle of feeding the grant by estoppel. Learned counsel has relied upon the decision of the Constitution Bench of the Supreme Court in Jumma Masjid, Mercara V. Kodimaniandra Deviah and others, AIR 1962 SC 847. After a detailed consideration of various decisions, the Supreme Court ruled that “(15) This reasoning is open to the criticism that it ignores the principle underlying Section 43. That section embodies, as already stated, a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevant words of Section 43 were “where a person erroneously represents” and now, as amended by Act 20 of 1929, they are “where a person fraudulently or erroneously represents” and that emphasizes that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application, and the transfer will fail under Section 6(a). But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable 7 doctrine embodied in Section 43, however fraudulent the act of the transferor might have been. (18) ……We accordingly hold that when a person transfers property representing that he has a present interest therein, whereas he has in fact, only a spes successionis, the transferee is entitled to the benefit of Section 43, if he has taken the transfer on the faith of that representation and for consideration. In the present case, Santhappa, the vendor in Ex.III, represented that he was entitled to the property in praesenti, and it has been found that the purchaser entered into the transaction acting on that representation. He therefore acquired title to the properties under Section 43 of the Transfer of Property Act, when Santhappa became in titulo on the death of Gangamma on February 17, 1933 and the subsequent dealing with them by Santhappa by way of release under Ex.A did not operate to vest any title in the appellant.” This decision has been followed and reiterated by the Supreme Court in Ram Pyare Vs. Ram Narain and others AIR 1985 SC 694. It is undisputed before me that under the provisions of the H.P. Tenancy and Land Reforms Act, all tenants acquire title to the land as provided therein under Section 104. Even if the plaintiffs purportedly did not possess a transferable title on a date, their representation that they could infact transfer this land, was sufficient in law to grant protection under Section 43 of the Act to the appellants-defendants. The learned Appellate Court was in error in not discussing and applying the provisions of Section 43 of the Act. Once having held that agreements were infact executed, the defendants were entitled to this protection and could not be dispossessed from the suit land. There is nothing on record to show either by way of oral or documentary evidence or otherwise that the defendants were aware of the fact that no transfer could be made, these foundational facts were required to be determined in the appeal. The transfer has been made after the plaintiffs lost before the Assistant Collector Ist Grade right upto the Judicial Commissioner. Even Ext.R5 which are the partition proceedings, the Assistant 8 Collector Ist Grade held that agreements Ext.DW2/A and Ext.DW3/C were genuine documents. I hold that the learned Appellate Court has misdirected himself both on the interpretation of these two documents and the application of the principle of law. I also hold that there was ample evidence on record to show that the appellants were always ready and willing to perform their part of agreement by having the sale deed executed. These questions are decided in favour of the appellants. Question No. 6 This is an important question for determination as to whether the action of the plaintiffs was within limitation. Undeniably the possession of Girdhari has been acknowledged by both the plaintiffs in Ext.DW2/A and Ext.DW3/C as far back as 1976. The suit has been instituted on 21.3.1984 which is beyond the period of 12 years. The suit was clearly barred by limitation under Article 65 of the Limitation Act. Both the Court should have applied their mind to this aspect as statute imposes a duty on the Court to determine the question of limitation. This question is accordingly answered in favour of the appellants. All other questions are also decided in favour of the appellants. The suit of the respondents is dismissed throughout with costs. July 30, 2009 (Dev Darshan Sud) (ms) Judge