R. S. A. No. 3421 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3421 of 2010 (O&M) Date of Decision : March 18, 2011 Jatinderpal Kaur and another .... Appellants Vs. Yogeshwar Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Arun Jain, Senior Advocate with Mr. Baldev Raj Mahajan, Advocate and Mr. A. R. Takkar, Advocate for the appellants. Mr. S. K. Garg Narwana, Advocate for respondents no.1 and 2. * * * L. N. MITTAL, J. (Oral) : By this common judgment, I am disposing of two appeals i.e. R. S. A. No. 3421 of 2010 titled Jatinderpal Kaur and another vs. Yogeshwar Singh and others and R. S. A. No. 3422 of 2010 titled Gurbhajan Singh and another vs. Yogeshwar Singh and others. These two appeals have arisen out of two suits – both filed by respondents no.1 and 2 Yogeshwar Singh and Hindbir Singh – minor sons of Rajbir Singh. R. S. A. No. 3421 of 2010 (O&M) 2 Civil Suit No.278 was filed against Jatinder Pal Kaur as defendant no.1 and Inderjit Singh, Ujagar Singh and Bhupinder Singh as defendants no.2 to 4 (proforma respondents no.3 to 5 in both the appeals). Jatinder Pal Kaur – defendant no.1 of the aforesaid suit is appellant no.1 in R. S. A. No. 3421 of 2010, which has arisen out of the said suit. Sheela Rani Sehgal – appellant no.2 in the said appeal was joined in the instant second appeal having purchased part of the suit land during pendency of the suit. She had also joined appellant no.1 in filing first appeal, but she was not allowed to be impleaded as party to the first appeal as there was no application for doing so. Civil Suit No.279 was filed against Gurbhajan Singh as defendant no.1 and Inderjit Singh, Ujagar Singh and Bhupinder Singh as defendants no.2 to 4. R. S. A. 3422 of 2010 has arisen out of the said suit. Gurbhajan Singh – defendant no.1 is appellant no.1 in the said appeal, whereas defendants no.2 to 4 are proforma respondents no.3 to 5. Ajay Vir Sehgal – appellant no.2 in the said appeal was joined in the instant second appeal having purchased part of the suit land during pendency of the suit. He had also joined appellant no.1 in filing first appeal, but he was not allowed to be impleaded as party to the first appeal as there was no application for doing so. Vide compromise decree dated 21.08.1987 passed in Civil Suit No.109 of 1987, plaintiffs herein were declared owners in possession of 28 bighas land. Similarly, vide compromise decree dated 21.08.1987 passed in R. S. A. No. 3421 of 2010 (O&M) 3 Civil Suit No.133 of 1987, plaintiffs were declared owners in possession of 01 bigha 10½ biswas land. Both the said decrees were passed against defendants no.2 and 3, who are maternal grandfather and paternal grandfather of both the plaintiffs. In Civil Suit No.278, plaintiffs have challenged sale of 09 bighas 10 biswas land made by defendant no.3 through his attorney Bhupinder Singh – defendant no.4 vide sale deed dated 27.04.1989 in favour of Jatinderpal Kaur – defendant no.1, whereas in Civil Suit No.279, plaintiffs have challenged sale of 24 bighas 09 biswas land made by defendant no. 2 through defendant no.4 as attorney vide sale deed dated 27.04.1989 in favour of Gurbhajan Singh – defendant no.1. It may be mentioned that Jatinderpal Kaur – defendant-appellant no.1 of one case is wife of Gurbhajan Singh – defendant-appellant no.1 of the other case. Similarly, appellant no.2 in R. S. A. No. 3421 of 2010 is mother of appellant no.2 of R. S. A. No. 3422 of 2010. The plaintiffs alleged that they are owners in possession of the suit land in view of compromise decrees dated 21.08.1987 and consequently, impugned sale deeds are illegal and null and void as defendants no.2 and 3, being no longer owners thereof, were not competent to sell the same. The plaintiffs accordingly sought declaration that they are owners in possession of the suit land and that aforesaid sale deeds are illegal and are liable to be ignored. Plaintiffs also claimed ancillary relief of permanent injunction. R. S. A. No. 3421 of 2010 (O&M) 4 Only defendant no.1 of each suit contested the suits, whereas defendants no.2 to 4 were proceeded ex-parte in both the suits. It was pleaded by defendant no.1 of each suit that both the vendees are bona fide purchasers of the suit land for valuable consideration without notice of compromise decrees dated 21.08.1987 because the same were never entered in revenue record. The vendees purchased the suit land after making due inquiries. Plaint allegations were controverted. It was denied that plaintiffs are owners in possession of the suit land. It was pleaded that compromise decrees dated 21.08.1987 are null and void. The same are also unregistered and compromise, on the basis of which said decrees were passed, was also unregistered. It was also pleaded that possession of the suit land was delivered to the vendees, and therefore, suits for declaration and injunction alone are not maintainable. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Dera Bassi, vide separate judgments and decrees dated 05.05.2009, decreed both the suits. First appeals preferred by defendant no.1 in both the suits along with appellant no.2 of both the appeals have been dismissed by learned Additional District Judge, SAS Nagar (Mohali) vide separate judgments and decrees dated 18.05.2010, except the modification that the plaintiffs were held to be owners in joint possession of the suit land. Feeling aggrieved, instant second appeals have been preferred. I have heard learned counsel for the parties and perused the R. S. A. No. 3421 of 2010 (O&M) 5 case files. Learned counsel for the appellants vehemently contended that suits for declaration and permanent injunction alone are not maintainable as the plaintiffs are out of possession. The contention cannot be accepted. Without entering into the controversy whether plaintiffs were in possession of the suit land or not at the time of filing of the suits, suffice to mention that suit land is a share in joint land. Plaintiffs are only co-sharers in the joint land to the extent of 29 bighas 10½ biswas, pursuant to compromise decrees dated 21.08.1987. Both original vendees (defendant no.1 in both suits) also became co-sharers in the joint land to some extent in view of finding being recorded hereinafter. In this view of the matter, suits for declaration and permanent injunction alone are also maintainable. Learned counsel for the appellants next contended that as per both the compromise decrees dated 21.08.1987, plaintiffs became owners in possession of 29 bighas 10½ biswas land in all, but the impugned sale deeds are for 33 bighas 19 biswas land, and therefore, in the remaining 04 bighas 8½ biswas land, the plaintiffs have no right, title or interest, but the suits have been decreed regarding entire 33 bighas 19 biswas land. Learned counsel for respondents no.1 and 2, on the other hand, contended that no such plea was raised before the courts below, and therefore, this plea cannot be raised for the first time in second appeal. I have carefully considered the rival contentions. R. S. A. No. 3421 of 2010 (O&M) 6 The plaintiffs' whole case is based on compromise decrees dated 21.08.1987. Perusal thereof reveals that plaintiffs were declared owners in possession of 28 bighas land vide compromise decree dated 21.08.1987 in Civil Suit No.109 of 1987 and 01 bigha 10½ biswas land vide compromise decree dated 21.08.1987 ini Civil Suit No.133 of 1987. Thus, according to said compromise decrees, plaintiffs were declared owners in possession of 29 bighas 10½ biswas land in all. Plaintiffs have not claimed any other right, title or interest in the suit land except as declared by the aforesaid compromise decrees. Consequently, the plaintiffs are not owners in possession of the remaining 04 bigha 8½ biswas land out of the suit land. This contention raised by counsel for appellants cannot be rejected on the ground that it was not raised in the courts below because it was for the plaintiffs to substantiate their entire claim. However, from the pleadings and the evidence led by the plaintiffs, their claim to the extent of 29 bighas 10½ biswas land only is substantiated. Consequently, courts below have committed grave error and illegality in decreeing the suits of the plaintiffs in toto regarding the entire suit land. Judgments and decrees of the courts below regarding excess land measuring 04 bighas 8½ biswas land, in which the plaintiffs have no right, title or interest even as per their own version, are, therefore, patently perverse, illegal and unsustainable in law, and are, therefore, required to be modified to this extent. Substantial question of law arises for determination in these second appeals in this R. S. A. No. 3421 of 2010 (O&M) 7 regard and the same is answered accordingly in favour of the appellants. Next contention raised by counsel for the appellants is that both the original vendees (appellant no.1 in each appeal) are bona fide purchasers of the suit land for valuable consideration as they made bona fide inquiries about the ownership of the vendors (defendants no.2 and 3). It was pointed out that no mutation on the basis of compromise decrees dated 21.08.1987 was entered nor the said decrees were reflected in the revenue record, and therefore, the vendees could have no knowledge of the said decrees and after making bona fide inquiries, they purchased the suit land. It was thus argued that condition specified in proviso to Section 41 of the Transfer of Property Act, 1882 (in short – the Act) is fully satisfied. On the other hand, learned counsel for respondents no.1 and 2/plaintiffs, however, contended that both the courts below have held that the vendees did not make proper inquiry before purchasing the suit land. It was also contended that Section 41 of the Act requires that the vendor is ostensible owner of the suit property with consent of the true owner, but in the instant case, plaintiffs, who were true owners of the suit land, were minors, and therefore, there could be no express or implied consent by them to depict defendants no.2 and 3/vendors to be ostensible owners and consequently, vendees cannot claim the benefit of Section 41 of the Act, and therefore, cannot be said to be bona fide purchasers of the suit land. Reliance in this regard has been placed on a judgment of this Court in the R. S. A. No. 3421 of 2010 (O&M) 8 case of Gurcharan Singh and others vs. Punjab State Electricity Board, Patiala and others reported as AIR 1989 Punjab and Haryana 127. I have carefully considered the aforesaid contentions. Before proceeding further, it may be mentioned that vendees tried to challenge the validity of compromise decrees dated 21.08.1987 in the written statements. However, vendees have no right to do so. The said decrees were suffered by defendants no.2 and 3 in favour of their grandsons i.e. plaintiffs. In those suits, claim of plaintiffs was based on family settlement arrived at on account of pre-existing rights of the plaintiffs in the suit land. The said decrees were suffered on the basis of compromise effected between the said parties thereby admitting the aforesaid claim of plaintiffs regarding family settlement based on their pre-existing rights in the suit land. Consequently, neither the said compromise nor the said decrees required compulsory registration, as sought to be asserted on behalf of the vendees. Moreover, the vendees have no locus standi to challenge the compromise decrees. As regards plea of the vendees that they are bona fide purchasers of the suit land, the same has to be seen in context of Section 41 of the Act, which is therefore, reproduced hereunder :- “41. Transfer by ostensible owner. - Where, with the consent, express or implied, of the persons interested in immovable R. S. A. No. 3421 of 2010 (O&M) 9 property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it : Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.” A bare perusal of the aforesaid provision reveals that benefit of this provision can be availed by the vendees only if the vendor is ostensible owner of the property with express or implied consent of the true owner. In the instant case, however, the plaintiffs, who are the true owners of the suit land, could not give any express or implied consent being minors. Consequently, vendees cannot be said to be bona fide purchasers of the suit land and are not entitled to benefit of Section 41 of the Act. Judgment of this Court in the case of Gurcharan Singh (supra) is directly applicable for this proposition of law. In the said judgment, another judgment of this Court in Surjit Singh vs. Mohinder Singh reported as 1978 PLJ 105 and also a judgment dated 17.07.1946 of Lahore High Court (predecessor of this Court) in the case of Kanhiya Lal minor through his mother Mt. Raj Rani vs. Deep Chand, Plaintiff and another reported as AIR (34) R. S. A. No. 3421 of 2010 (O&M) 10 1947 Lahore 199 were relied on. Both these judgments are also to the same effect. In view of these three judgments of this Court and also in view of plain and unambiguous language of Section 41 of the Act, there is no escape from the conclusion that plea of benefit of Section 41 of the Act i.e. plea of the vendees being bonafide purchasers of the suit land, cannot be availed of against the minor plaintiffs, who are true owners of the suit land. Consequently, concurrent finding recorded by the courts below that the vendees are not bonafide purchasers of the suit land is perfectly justified by the legal position, and therefore, it does not warrant interference in second appeals. Much emphasis on behalf of the appellants was laid on the contention that no mutation was sanctioned in favour of plaintiffs on the basis of compromise decrees. However, merely on this ground, the appellants cannot be said to be bonafide purchasers of the suit land. In this view, I am supported by a judgment of Karnataka High Court in the case of Mallappa Adiveppa Hadapad vs. Smt. Rudrawwa and others reported as 2003 (3) LJR 602. It was specifically held in that case that simply on the basis of mutation or entries in favour of the vendor, the vendee cannot be held to be bonafide purchaser of the suit land. Moreover, in the instant cases, plaintiffs were minors when the compromise decrees were passed in their favour and also when the instant suits were filed. It is the case of the plaintiffs that they being minors, could not get the mutation entered in their R. S. A. No. 3421 of 2010 (O&M) 11 favour on the basis of compromise decrees. The plaintiffs cannot be non- suited merely because mutation was not sanctioned in their favour on the basis of compromise decrees. On the other hand, it is the duty of the Court to protect the interest of the minors. Plaintiffs cannot be deprived of the suit land merely because they being minors, could not get mutation sanctioned in their favour on the basis of compromise decrees. Both the original vendees (defendant no.1 of both the suits) have also failed to prove that they had made proper inquiries regarding title of defendants no.2 and 3/vendors before purchasing the suit land. Self- serving oral statements of both the said vendees to this effect are not sufficient to substantiate their aforesaid version. Practically, no other evidence has been led by them in support of their said version. They claimed to have inspected the revenue record, but neither Patwari has been examined to substantiate this claim nor any document has been produced to depict that the revenue record was in fact inspected by the said vendees. No other witness has either been examined to depict that any inquiry was made in the vicinity of the suit land and from the neighbourhood of the vendors or from their family members. On the other hand, plaintiff no.2 stepped into the witness box and stated that both the aforesaid vendees had been visiting their houses and were, therefore, aware that plaintiffs had become owners of the suit land, as also declared vide compromise decrees dated 21.08.1987. It is thus manifest that appellants have miserably failed to prove that they had R. S. A. No. 3421 of 2010 (O&M) 12 made proper inquiries about title of vendors before purchasing the suit land. Consequently, it is not proved that they are bonafide purchasers of the suit land. Concurrent finding recorded by the courts below to this effect is fully justified by the evidence on record and is supported by cogent reasons. At the risk of repetition, it may be highlighted that both the original vendees, except appearing themselves in the witness box, have not examined any other witness to substantiate their claim that they had made proper inquiries regarding title of vendors before purchasing the suit land. Consequently, plea of the said vendees that they are bonafide purchasers of the suit land has been rightly negatived by the courts below and the same does not call for interference in second appeals. For the reasons aforesaid, both the instant second appeals are allowed partly. Judgments and decrees of the courts below are modified. Suits filed by the plaintiffs are decreed partly to the extent of 29 bighas 10½ biswas land, out of suit land measuring 33 bighas 19 biswas in the terms ordered by the courts below, whereas suits regarding remaining 04 bighas 08½ biswas land out of the suit land, are dismissed. March 18, 2011 ( L. N. MITTAL ) monika JUDGE