CWP No. 1389 of 1987 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision:- 27.01.2011 1. CWP No. 1389 of 1987 (O&M) Kartar Singh (dead) through his LRs ....Petitioner Vs. The Financial Commissioner,Revenue and others ....Respondents Present:- Mr. C.B. Goel and Mr. Nitin Jain, Advocates, for the petitioner. Mr. P.S. Thaira, Addl. A.G. Punjab, for respondent Nos. 1 to 3 and 5. Mr. Arun Jain, Senior Advocate, with M/s Amit Jain, P.S.Bhangu & Lalit Pathak, Advocates for respondent No 4. AND 2. RSA No. 3099 of 1986 Kartar Singh (dead) through Gulzar Singh and others. ....Petitioners Vs. Joginder Singh (dead) through his LRs. ....Respondents Present Mr. C.B. Goel and Mr. Nitin Jain, Advocates, for the Appellant Mr. Arun Jain, Senior Advocate, with M/s Amit Jain, P.S.Bhangu & Lalit Pathak, Advocates for respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers 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? 1 CWP No. 1389 of 1987 (O&M) HEMANT GUPTA, J. This order shall dispose of the above mentioned writ Petition and Regular Second Ap`peal both filed by Kartar Singh. Since both set of proceedings arise out of same facts, therefore, both are being taken up for hearing together. Challenge in the Writ petition is to the order dated 22.09.1980 holding that the respondent No.4 is a person entitled to allotment of 1.11 standard acres of land and that sale made by a imposter in favour of present petitioner cannot be given effect to and the order dated 21.10.1986 passed by the Learned Financial Commissioner exercising the powers of the Central Government, whereby the said order was affirmed. The argument raised at the time of motion hearing of the writ petition was that the petitioner is a bonafide purchaser and sale in his favour is protected under Section 41 of the Transfer of Property Act, 1882. Reliance was placed upon a judgment in Achhar Singh and others Vs. The State of Punjab and others, 1979 PLR 278. This Court vide detailed order dated 06.12.1991, found that the matter is pending before the larger Bench in Niranjan Kaur Vs. Financial Commissioner and others, CWP No. 5662 of 1986. The second appeal arises out of judgment and decree passed by Courts below arising out of suit for possession filed by the plaintiff-respondent No.4 Joginder Singh son of Puran Singh for land measuring 14 Kanals 17 Marlas. He claimed possession of the aforesaid land on the basis of allotment made to him after 2 CWP No. 1389 of 1987 (O&M) his migration from Pakistan when he was a minor. It is the case of the plaintiff that on account of negligence on the part of his guardians, the allotment papers could not be obtained by him and the defendant taking advantage of the situation, got the parentage of the plaintiff changed from Puran Singh to Sohan Singh by impersonation with the connivance of the revenue staff and got a sale deed executed on the basis of changed parentage. Plaintiff also relied upon a finding given by the Chief Settlement Commissioner that plaintiff is a lawful title holder of the suit land and the sale deed executed in favour of Kartar Singh, defendant No.1, was result of interpolations in the resettlement file and the revenue record. The suit was contested by defendant No.1 herein with the plea that the land in dispute was allotted to Joginder Singh son of Sohan Singh, who sold the same to defendant No.1 Kartar Singh on 08.09.1977 and that he had filed a revision against the order passed by the Chief Settlement Commissioner in the Court of Financial Commissioner, Revenue. The said suit was decreed by the learned Trial Court on 28.03.1985. The said decree was affirmed with the dismissal of the first appeal on 03.09.1986. The second appeal was admitted and was order to be heard along with CWP No.1389 of 1987, wherein challenge was made by the Petitioner to the order passed by the Financial Commissioner upholding the allotment in favour of the respondent. The said appeal was subsequently ordered to be listed for hearing after the decision by Full Bench in CWP No.5662 of 1986 in Smt. Niranjan Kaur and others Vs. The Financial Commissioner, 3 CWP No. 1389 of 1987 (O&M) Revenue & Secretary to Government, Punjab and others. The Court has also passed an order of stay of the execution of the decree on furnishing security for mesne profits to the satisfaction of the executing Court. For facility of reference, the plaintiff shall here-in-after be referred as Respondent and the defendant No.1 as the petitioner. I have heard learned counsel for the parties and do not find any merit either in Writ Petition or in Second Appeal. The petitioner is purchaser of land in dispute vide registered sale deed dated 28.09.1977 for a sum of Rs.34,000/- from one Joginder Singh son of Sohan Singh, on the basis of entries reflecting him as owner of land in dispute since 1950-51. It is the case of the petitioner that he is a bonafide purchaser for valuable consideration, therefore, he is absolute owner of the suit property. The Settlement Officer declined to issue sanad in favour of respondent No.4 vide order dated 25.03.1980 (Annexure P-1), as an allottee of the said land, as the allotment stands cancelled for not taking possession of land allotted. An appeal filed by respondent before the Chief Settlement Commissioner was allowed on 22.09.1980 (Annexure P-2) and the revision was dismissed vide order dated 21.10.1986. Learned Financial Commissioner, exercising the powers of the Central Government, vide order Annexure P-4 has held that the allotment was made in the name of Joginder Singh son of Puran Singh, but on account of interpolations made in the record, the parentage of Joginder Singh was changed to Sohan Singh and the land was sold to the 4 CWP No. 1389 of 1987 (O&M) petitioner. The land was not allotted to Joginder Singh son of Sohan Singh. He neither claimed nor held any interest in the land and was clearly an imposter. The Full Bench, as referred to above, has now decided the aforesaid writ petition in a judgment reported as Smt. Niranjan Kaur and others Vs. The Financial Commissioner, Revenue & Secretary to Government, Punjab and others, 2010 (4) RCR (Civil), 610, wherein it has been held:- “46. As regards the question No.4 is concerned, there can be no dispute with the question, as under Section 41 of the Property Act the express or implied consent has to be valid and free consent. In case, the transfer is procured by fraud and mis- representation in absence of bona fide, the plea of bona fide purchase is not available, as it is settled law that the fraud vitiates everything. 47. However, the fraud and mis-representation is to be on the part of the vendee, or with his consent, by his vendor. In absence thereof, it would be unfair to deny the right to contest to the subsequent vendee. It will be for the party alleging fraud to prove the fraud and misrepresentation, as no presumption can be drawn. 48. It is made clear, that non-availability of protection under Section 41 of the Property Act would not be a bar to the subsequent vendee also being a proper party to contest the order of cancellation by resorting to the provisions of Section 24 and 33 of the Act. 49. The answer to the question, as to what right the subsequent vendee would have in view of the cancellation of the allotment which is finally upheld, is to be found in Sections 13 and 19 of the Specific Relief Act. The property of the real owner would be protected and bona fide purchaser will be entitled to get back his money along with interest and costs etc. from his vendor. 50. For the reasons stated, we are of the view that Section 41 of the Property Act, will have no application where transfer is held invalid under Sections 19 and 24 of the Act, as no estoppel can be pleaded against the provisions of the statute. 51. It would be within the right of the subsequent purchasers to 5 CWP No. 1389 of 1987 (O&M) challenge the order of cancellation on merits, but sale in their favour cannot be protected under Section 41 of the Property Act. The subsequent vendee can only claim refund or damages from his vendor.” In the present case, the finding recorded is that the vendor of the petitioner was an imposter. The vendor of the petitioner was never an allottee. Therefore, the sale by vendor of the petitioner is an act of fraud. The petitioner on the basis of such sale cannot claim his sale to be protected under Section 41 of the Transfer of Property Act, 1882. Such sale does not affect the rights of the Respondent, who alone is rightful owner of the property. Consequently, the regular second appeal is dismissed as no substantial question of law arises for consideration before this Court. It shall be open to the plaintiff to claim mesne profits for the period, the appeal remained pending before this Court, in execution proceedings. For the reasons recorded, even the writ petition has no merit. The present petition is also dismissed. (HEMANT GUPTA) 27.01.2011 JUDGE ajp 6