R.S.A No. 1442 of 1982 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 1442 of 1982 (O&M) Date of decision : October 28, 2009 Dalip Singh, ...... Appellant (s) v. Sampuran Kaur (dead) through L.Rs and another, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. N.S.Rapri, Advocate for the appellant. Mr. Kamaldeep Singh Sidhu, Advocate 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 the Digest ? *** AJAY TEWARI, J (Oral) This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the plaintiff for possession on the ground that they traced their right through a prior mortgage. Both the Courts on fact have found that before the land in dispute was mortgaged with the appellant there was a prior mortgage and that the plaintiff traced his rights through the said mortgage. Since this appeal was filed as far back as 1982, no question of law was proposed. However, subsequently counsel for the appellant has R.S.A No. 1442 of 1982 (O&M) ::2:: now proposed the following questions :- “ 1) Whether mortgage Ex.P1 in favour of Hazara Singh can be given precedence to mortgage deed Ex.D1, Ex.D2 in favour of defendants and Surjit Singh while possession was never with the plaintiff nor was with Sampuran Kaur whereas it was with defendants ? 2. Whether the Courts below have erred in presuming the notice to general public on account of registration of mortgage deed ? 3. Whether the registration of mortgage deed without any mutation in respect of mortgage and without possession with mortgage can be said to be notice to defendant/appellant ? 4. Whether the defendants were bona fide mortgagees for consideration and without notice after consulting the revenue records ? 5. Whether once the defendants have been held to be in possession of mortgage property and had made sufficient enquiry from the patwari whether he can be bona fide mortgage under Section 41 of the Transfer of Property Act ? 6. Whether the enquiry from village Patwari is sufficient as has been held by this Hon'ble Court as reported in 1976 PLR 475 and 1979 PLJ 278 ? It would be seen that all the questions proposed relate to the issue whether prior mortgage deed had to be given precedence and whether R.S.A No. 1442 of 1982 (O&M) ::3:: the appellant was protected under Section 41 of the Transfer of Property Act, 1811. In this context, the lower appellate Court has rightly placed reliance upon Section 3 of the said Act and the explanation furnished thereto. Counsel for the appellant has placed reliance upon a judgment of this Court reported as Kali Ram and others vs Union of India and others, 1976 PLR 475, wherein it was held as follows :- “......... The provisions of section 41 of the Property Act protect the bona fide purchaser for consideration from an owner. In the present case neither there is any doubt, nor has it been questioned before me that the plaintiffs were bona fide purchasers for consideration and had, at the time of purchase, made enquiries from the village Patwari about the title of the vendor and had also consulted the record-of-rights wherein it was Hari Chand and Ram Chand, who had been recorded the absolute owners of the entire suit land and prior to that, their grand father Daulat Ram had been recorded as the owner thereof, which means that their vendors were the ostensible owners of the suit land with the express consent of the Government of India when the same was purchased by them, for it is the functionaries and officials of the Union Government who had effected the entries in the record-of-rights regarding his ownership rights and so the provisions of section 41 of the Property Act are clearly attracted to the facts of the present case......” R.S.A No. 1442 of 1982 (O&M) ::4:: The above judgment is clearly distinguishable, since this Court held that the vendors in the said case were ostensible owners. In the present case there is no such allegation. Rather, what the Courts below have held is that once the earlier mortgage was by a registered deed, the argument that the appellant had made enquiries from the record-of-rights would not suffice. In the circumstances, the questions proposed have to be held against the appellant. Consequently, this appeal is dismissed with no order as to costs. As the main appeal has since been dismissed, all the pending civil miscellaneous applications, if any, also stand disposed of. October 28, 2009 ( AJAY TEWARI ) kk JUDGE