IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.302 of 2007. Date of decision: 25.11.2008. Union of India & Others …Appellants Versus Bhupender Singh & Another …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellants: Mr.Sandeep Sharma, Assistant Solicitor General of India. For the Respondents: Mr.Lovneesh Kanwar, Advocate. Dev Darshan Sud,J. This appeal was admitted on 11.1.2008 on substantial question of law No.1 and 2 which are:- “1. Whether the Rehabilitation/custodian Department was competent to transfer the title of the land in favour of the predecessor-in- interest of the plaintiffs in the face of the fact that Rehabilitation/custodian Department was not having any valid title over the suit land? 2. Whether Smt.Basant Kaur, predecessor-in- interest of the plaintiffs who was not having any right, title or interest over the said 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes 2 property, could have transferred the suit property by way of Will in favour of the plaintiffs?” Brief facts of the case are that the respondents herein who are successors in interest of late Basant Kaur who instituted the suit out of which this appeal arises, praying for a decree of declaration that they are the owners in possession of shop No.665 comprised in survey No.116/2, situated in Dagshai and revenue entries to the contrary are not binding on their title. The plaintiff/respondents pleaded that they were successors of late Smt.Basant Kaur wife of Shri Sant Singh who by her will Ex.P-5, dated 4.4.1989 executed in their favour, bequeathed the suit property in their name. After her death, they became the absolute owners in possession of the suit property which is comprised in survey No.116/2 bearing shop/house No.665, situated at Dagshai and forming part of B-III. It was pleaded that this property was evacuee property and sold in open auction by the Union of India. Sale certificate Ex.P-6 under the Displaced Person (C&R) Act, 1954 (44 of 1954) was issued by the Managing Officer (Sales) Jullundhar on 18.8.1964. The case pleaded was that the respondents denied their title alleging that the suit property was government land and no title could be passed to the respondents. The specific plea was that it was an old grant land and was on lease as per schedule VI of the Cantonment Land Administration Rule, 1925. This lease was given to Gulam Rasool & Amin Ahmed Ulvi up to 25.6.1961. It was inter alia pleaded by defendant No.3 that:- 3 “… … …however, it is admitted to the extent that this property was sold to Smt. Basant Kaur w/o Sh. Sant Singh Govt. contractor, Dagshai by the custodian of evacuee property, Patiala in open auction and this office has intimated the husband of Smt. Basant Kaur vide letter No.4/58 dated 28/7/1962 (Copy enclosed) to produce the sale certificate in respect of shop No.665 comprising GLR survey No.116/2 issued by the custodian evacuee property, Patiala as the same was required by the Military Estates Officer, Delhi Circle for taking further necessary action in the matter. In response to aforesaid letter the party concerned has informed this office vide his letter dated 31/7/62 (copy enclosed) that the amount of bid in respect of shop No.665 has been deposited in the treasury, but the sale certificate has not yet been issued by the department. It is denied that the intimation from District Rent and Managing officer, Jullundhar was conveyed to the Board alongwith the copy of sale deed, but as per letter dated 31/7/62 party concerned has informed this office that they have deposited the amount of bid in the treasury and sale certificate has not yet been issued by the department. Hence, letter No.4/58 dated 28/7/62 was correct for the production of the sale certificate.” This important part of the pleading of the defendants is being noticed as the sale of the property was not denied. The Union of India and 4 Military Estate officer Ambala denied the ownership of the plaintiffs and pleaded that the suit land belongs to the government. However, it is admitted that as per record this land was sold to Smt.Basant Kaur w/o Shri Sant Singh, Government Contractor, Dagshai by the Custodian Evacuee Property, Patiala in open auction and this intimation was given to authorities concerned. They denied the certificate of sale and submit that cause title cannot be granted to the plaintiff. The learned trial Court as also the appellate Court, on consideration of the entire oral and documentary evidence on the record, held on the two vital issues relating to the ownership and possession of the respondents-defendants stood proved. These are concurrent findings arrived at by the learned courts below. Unless there is any perversity in the appreciation of facts, it would not be permissible in this Court to go into those findings. Without placing those fetters on this Court in the second appeal, I am examining the respective case of the parties. The vital question which arises for determination is whether a valid title stood transferred to the respondents-plaintiffs vide sale certificate Ex.P-6 issued under Rule 90(15) of the Displaced Persons (Compensation & Rehabilitation) Rules, 1955, (hereinafter referred to as the `Rules’), framed under the Displaced Persons (Compensation & Rehabilitation) Act, 1954, (hereinafter referred to as the `Act’) is clear. Ex.P-6 is reproduced below for felicity of reference:- “APPENDIX XII CERTIFICATE OF SALE (Free hold properties) Rule90(15) 5 This is to certify that Smt.Basant Kaur w/o Sant Singh Govt.Contractors Dagshai(Simla Hills) having given the highest bid of a sale by public auction held in pursuance of the powers conferred upon me under section 20 of the Displaced Persons (C&R) Act, 1954 (44 of 1954) on the 16th day of Dec.1961, of the property described in the schedule and bid having been accepted and the value thereof having been paid by him in cash Rs.225/- and Rs.____ by adjustment of compensation due o his associate claims bearing Registration No.___ has been declared the purchaser of the said property with effect from the 16/4/62 day of. Given under my hand and seal of my office this 18th day of August, 1964. SCHEDULE Sold for Rs.225/- 665 Dagshai Sd/- (HARISH CHANDER CHAUDHRY) Signagure Managing Officer (Sales) Jullundur. BOUNDRIES. East Foot Path leading to Circular Road West Uphill side. North Vacant Site. South Vacant Site” At this juncture, the provisions for setting aside sale made under the Act may be noticed. Rule 92 of the Rules provides: “92. Procedure for setting aside a sale – Where a person desires that the sale of any property made under rule 90 or 91 should be set aside because of 6 any alleged irregularity or fraud in the conduct of sale (including in the case of a sale by public auction in the notice of the sale) he may make an application to that effect to the Settlement Commissioner or any officer, authorized by him in this behalf to approve the acceptance of the bid or tender, as the case may be. (2) Every application for setting aside a sale under this rule shall be made- (a) Where the sale is made by public auction, within seven days from the date of the acceptance of the bid; (b) Where the sale is made by inviting tenders, within seven days from the tenders were opened. (3) If after consideration of the facts alleged the officer to whom the application is made under this rule is satisfied that any material irregularity or fraud has been committed in the publication or the conduct of the sale, he may make an order that the property be re- auctioned or be resold by inviting fresh tenders, as the case may be; Provided that no sale can be set aside under this rule unless upon the facts proved such officer is satisfied that the applicant has sustained substantial injury by reason of the irregularity or fraud, as the case may be. (4) Notwithstanding anything contained in this rule, the Settlement Commissioner may, of his own motion, set aside any sale under this 7 chapter if he is satisfied that any material irregularity or fraud which has resulted in a substantial injury to any person has been committed in the conduct of the sale.” None of these provisions enabling the cancellation of the certificate have been proved or established on the record of the case. Ex.P- 6 having been issued on 18th August, 1964 has remained unchallenged. In the circumstances, it cannot be said that a valid title did not vest in the respondents-plaintiffs. To put all doubts to rest, in Bishan Paul vs. Mothu Ram, AIR 1965 SC 1994, Supreme Court dealing with the provisions of the Act and Rules has held:- “ 8. The rules which we have earlier reproduced show that the auction is held on a date fixed and is subject to a reserve price which is confidential. The officer conducting the sale declares at the fall of hammer who is the highest bidder. The highest bid is subject to the approval of the Settlement Commissioner or an officer appointed by him. A period of seven days must elapse before the bid is approved and there is also a limitation of seven days from the acceptance of the bid for making an application to set aside the sale. If the bid is Approved and if no application meanwhile for setting aside, the sale is made the highest bidder is recognized as the auction purchaser and he is required to produce a treasury challan in respect of the balance of the purchase money within a period of fifteen days (which period may be extended without limit of time before the Settlement Commissioner or the officer appointed by him. When the full purchase price is paid a certificate 8 issues in Form No. XXII and is sent to the Sub- Registrar for registration. If the balance of the price is not paid, the amount of advance in deposit is forfeited and the auction purchaser has no claim to the property. 9. The passing of title thus presupposes the payment of price in full and the question is at what stage this takes place. Obviously, there are several distinct stages in the sale of property. These are: (a) the fall of the hummer and the declaration of the highest bid; (b) the approval of the highest bid by the Settlement Commissioner or officer appointed by him ; (c) payment of the full price after approval of the highest bid; (d) grant of certificate: and (e) registration of the certificate. 12. It may be pointed out that a modified certificate is now issued. The new form of the certificate is reproduced in extenso in Jaimal Singh's case, 66 Pun LR 99 at p. 103. (AIR 1964 Punj 99 at p.101 ). It requires a mention that the purchaser "has been declared the purchaser of the said property with effect from. day of. . . . . . . . 19”. This leaves no room for any doubt though it does show that a date other than the date of the certificate may now be filled in the blanks. The reason appears to be this that the balance of the purchase price may not be paid before the approval of the highest bid but much later and it may be necessary to put in the date of payment rather than the date of approval of the bid. It is, however, possible to conceive of a case where the full price may be tendered before confirmation (as in this case) or the compensation may exceed the full price and it may be necessary to refund even the advance, which is to be paid when the highest bid is declared. In that case the 9 date of confirmation or even of the auction could be the date to be mentioned in the certificate. Be that as it may, it is clear that the form used here is not the new form though the form actually used mentions all the three dates: the date of auction, the date of approval of the bid, and the date of certificate. It may he recalled that the whole of the purchase price was already paid before the approval of the final bid. 16. It seems to us that the matter must be considered on general principles. In this case the highest bid was of the respondent and he paid the full price before the sale in his favour was confirmed. The sale certificate though issued later, mentioned the date of the confirmation of the sale in his favour. The tenant was asked to attorn to the purchaser from the date of confirmation of sale and thus possession was also delivered on that day. Title, therefore, was not in abeyance till the certificate was issued but passed on the confirmation of sale. The intention behind the rules appears to be that title shall pass when the full price is realized and this is now clear from the new form of the certificate reproduced in Jaimal's case. 66 Pun LR 99: (AIR 1964 Punj 99 ). No doubt till the price is paid in full there is no claim to the property, but it seems somewhat strange that a person who has paid the price in full and in whose favour the sale is also confirmed and who is placed in possession should only acquire title to the property from the date on which a certificate is issued to him. There may conceivably be a great deal of time spent before the certificate is granted. In this case the tenant was told to attorn from 3/10/1956 because nothing remained to be done except the ministerial acts of issuing the certificate and getting it 10 registered. Therefore, so far as title was concerned, it must be deemed to have passed and the certificate must relate back to the date when the sale became absolute. …. …. …. ….” Ex.P-6 is in the same terms as has been noticed by the Supreme Court in paragraph-12 of the judgment (supra). The sale certificate under the Act is issued pursuant to Rule-90(15) of the Rules which reads:- “90(15) When the purchase price has been realized in full from the auction purchaser, the Managing Officer shall issue to him a sale certificate in the form specified in Appendix XXXII or XXXIII, as the case may be. A certified copy of the sale certificate shall be sent by him to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the property to which the certificate relates is situated. If the auction purchaser is a displaced person and has associated with himself any other displaced person having a verified claim whose net compensation is to be adjusted in whole or in part against the purchase price, the sale certificate shall be made out jointly in the name of all such persons and shall specify the extent of interest of each in the property.” The judgment of the Supreme Court interprets the relevant provisions of Rule 90 and 92 regarding confirmation of sale and their cancellations which have already been extracted hereinabove. In the circumstances, I hold that a valid title has passed to the plaintiff-respondents. The questions of law raised are answered against the 11 appellant herein. I do find it strange that a sale certificate having been issued as far back as 18th August, 1964, the appellants should now seek to have title of the respondents annulled. This appeal is accordingly dismissed. There shall be no order as costs. November 25, 2008. (Dev Darshan Sud) (aks) Judge.