R. S. A. No. 2017 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2017 of 2011 (O&M) Date of Decision : May 09, 2011 Ranbir Singh .... Appellant Vs. Ram Partap alias Jaswant and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Kulvir Narwal, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 5664-C of 2011 : Allowed as prayed for. C. M. No. 5665-C of 2011 : Application is allowed and Annexure A-1 is taken on record, subject to all just exceptions. Main Appeal : Plaintiff Ranbir Singh, who was successful in the trial court, but has been non-suited by the lower appellate court, is in second appeal. Appellant-plaintiff filed suit against respondents as defendants R. S. A. No. 2017 of 2011 (O&M) 2 alleging that the plaintiff purchased the suit land measuring 04 bighas 10 biswas pukhta being 90/3815th share in 190 bighas 15 biswas pukhta from defendant no.7 vide registered sale deed dated 24.10.1991 for Rs.75,000/- and is owner in possession of the suit land since then. However, a little before the filing of the suit, the plaintiff learnt that defendants have got entered mutation no.2837 regarding the suit land in favour of Ram Partap (defendant no.1), Raj Singh and Ravinder – predecessors of defendants no.2 to 5, on the basis of consent decree and judgment dated 07.08.1991 suffered in their favour by defendant no.7. The plaintiff alleged that said judgment and decree dated 07.08.1991 and consequent mutation no.2837 and subsequent revenue entries in jamabandis for 1994-95 and 1999-2000 are wrong and illegal and not binding on the rights of the plaintiff, who is owner in possession of the suit land. Consequential relief of permanent injunction was also claimed. Plaintiff claimed himself to be bona fide purchaser of the suit land for consideration. Defendants no.1 to 5 contested the suit and inter alia pleaded that defendant no.7 was not owner of 90/3815th share in the land in question. Judgment and decree dated 07.08.1991 are legal and valid. Plaintiff purchased the suit land after passing of said decree, when defendant no.7 was left with no right, title or interest in the suit land. Defendant no.7 could not pass any title to plaintiff after passing of the consent decree dated 07.08.1991. Sale deed dated 24.10.1991 by defendant no.7 in favour of R. S. A. No. 2017 of 2011 (O&M) 3 plaintiff is illegal and null and void. Plaintiff had knowledge of the judgment and decree dated 07.08.1991. Various other pleas were also raised. Defendants no.6 and 7 were proceeded ex-parte. Learned Additional Civil Judge (Senior Division), Meham, vide judgment and decree dated 13.05.2010, decreed the plaintiff's suit. However, first appeal preferred by defendants no.1 to 5 has been allowed by learned Additional District Judge (Fast Track Court), Rohtak, vide judgment and decree dated 31.01.2011 and thereby, suit filed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. It was not disputed even by the plaintiff in the plaint that defendant no.7 had suffered consent decree dated 07.08.1991 regarding the suit land in favour of defendant no.1 and predecessors of defendants no.2 to 5. The plaintiff purchased the suit land thereafter from defendant no.7 through her Attorney defendant no.6 vide sale deed dated 24.10.1991. At the time of said sale deed, defendant no.7 herself was not owner or in possession of the suit land, and therefore, she could not have transferred any right, title or interest in the suit land to the plaintiff because no person can transfer better title in favour of anybody else than he himself has. It is thus manifest that the sale deed dated 24.10.1991 by defendant no.7 in favour of R. S. A. No. 2017 of 2011 (O&M) 4 plaintiff did not confer any right, title or interest in the suit land on the plaintiff because vendor defendant no.7 herself did not have any title in the suit land at the time of sale deed. Learned counsel for the appellant vehemently contended that mutation on the basis of consent decree dated 07.08.1991 was not sanctioned, and therefore, plaintiff-appellant is bona fide purchaser of the suit land. The contention cannot be accepted. Consent decree was suffered by defendant no.7 on 07.08.1991 and immediately thereafter, the plaintiff purchased the suit land from defendant no.7 vide sale deed dated 24.10.1991. In the interregnum of 2½ months, if mutation on the basis of consent decree dated 07.08.1991 had not been sanctioned, it is not sufficient to deprive defendants no.1 to 5 of their ownership over the suit land. On the contrary, Section 41 of the Transfer of Property Act (in short – the T. P. Act), on the basis of which, plea of plaintiff-appellant being bona fide purchaser of the suit land is based, is reproduced hereunder :- “41. Transfer by ostensible owner – Where, with the consent, express or implied, of the persons interested in immovable 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 R. S. A. No. 2017 of 2011 (O&M) 5 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.” In the instant case, there is nothing on record to depict that after passing of consent decree dated 07.08.1991, there was express or implied consent by defendants no.1 to 5 or their predecessors that defendant no.7 was ostensible owner of the suit land. On the contrary, defendant no.1 and predecessors of defendants no.2 to 5 had filed suit against defendant no.7, when she disputed their title over the suit land. Consequently, it cannot be said that defendant no.7 had express or implied consent of defendants no.1 to 5 or their predecessors to claim herself to be owner or ostensible owner of the suit land. Consequently, benefit of Section 41 of the T. P. Act cannot be extended to the plaintiff-appellant and the aforesaid contention cannot be accepted. Learned counsel for the appellant vehemently contended that there was no family settlement between defendant no.1 and predecessors of defendants no.2 to 5 on the one hand and defendant no.7 on the other hand, on the basis of which, consent decree dated 07.08.1991 was suffered. It was also contended that the said consent decree was obtained by fraud and misrepresentation. It was also contended that the said decree required R. S. A. No. 2017 of 2011 (O&M) 6 compulsory registration, but is unregistered. All these contentions cannot be accepted at the instance of plaintiff, who has no locus standi to raise these contentions. The plaintiff was not in picture in any manner regarding the suit land, when consent decree dated 07.08.1991 was suffered by defendant no.7. Consequently, plaintiff cannot challenge the said consent decree on the aforesaid grounds. He has no locus standi to do so. Even otherwise, the question of family settlement stood adjudicated and determined with the passing of the consent decree dated 07.08.1991 and cannot be re-opened in the subsequent suit. It may also be added that defendant no.1, Raj singh and Ravinder – predecessors of defendants no.2 to 5 were real brothers of defendant no.7. Consequently, consent decree on the basis of family settlement among them did not require compulsory registration. The said decree is also not shown to be result of fraud or misrepresentation. Thus, even on merits, the aforesaid contentions cannot be accepted. It may be added that mutation no.2837, on the basis of consent decree dated 07.08.1991, was sanctioned on 28.01.1993, whereas plaintiff filed the instant suit on 13.03.2006 i.e. more than 13 years after sanctioning of mutation. The plaintiff himself remained silent for all these years. If the plaintiff had been owner in possession of the suit land, he would not have been ignorant of the aforesaid mutation and consequent entries in jamabandis for more than 13 years. R. S. A. No. 2017 of 2011 (O&M) 7 Counsel for the appellant further contended that mutation no.2837, on the basis of consent decree, was sanctioned without notice to the plaintiff. The contention is misconceived and is of no significance. Sanctioning of mutation does not confer title. On the contrary, mutation is sanctioned to update the revenue record. Defendant no.1 and predecessors of defendants no.2 to 5 became owners of the suit land on the basis of family settlement, as affirmed by decree dated 07.08.1991. Sanctioning of mutation no.2837 on the basis of consent decree did not confer title on them. They had already been declared owners of the suit land by consent decree dated 07.08.1991. Learned counsel for the appellant vehemently contended that defendant no.7 committed fraud with the appellant and at least recovery of the sale consideration paid by the plaintiff-appellant to defendant no.7 should have been granted. The contention cannot be accepted. No such prayer was made by the plaintiff in the plaint nor any such question was adjudicated upon. If plaintiff had made any such prayer, defendants no.6 and 7 would have possibly contested the said prayer of the plaintiff and only then, the said prayer could be adjudicated upon. Since the plaintiff did not make any such claim in the plaint, defendants no.6 and 7 thought it better to be proceeded against ex-parte. Secondly, for granting decree for recovery of money, the question of limitation would also have to be adjudicated upon as the sale deed in favour of the plaintiff is dated 24.10.1991 and even R. S. A. No. 2017 of 2011 (O&M) 8 mutation on the basis of consent decree was sanctioned on 28.01.1993, whereas the suit was filed on 13.03.2006. Consequently, the question of limitation would also have arisen for adjudicating the said claim, if any such claim had been made. The question of payment of ad valorem court fee would also have arisen in that event, if any such claim had been made by the plaintiff. Consequently, decree for recovery of money in favour of plaintiff- appellant against defendant no.7 also cannot be passed in the instant lis. For the reasons aforesaid, I find no merit in the instant second appeal. Plaintiff has been rightly non-suited by the lower appellate court. Finding recorded by the lower appellate court does not warrant interference in second appeal as it is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. May 09, 2011 ( L. N. MITTAL ) monika JUDGE