IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1425 of 1983 (O&M) Date of decision: 20.09.2011 Shri Bachan Lal son of late Shri Hukam Chand, resident of House No.82/13, outside Gilwali Gate, Amritsar. ...Petitioner versus The State of Punjab, through the Secretary to Government, Punjab, Rehabilitation Civil Secretariat, Chandigarh, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Avinash Chander Jain, Advocate, and Ms. Aparna Jain, Advocate, for the petitioner. Ms. Kavita Arora, Additional Advocate General, Punjab, for respondent No.1. Mr. M.S. Rakkar, Senior Advocate, with Mr. P.S.Baath, Advocate, for respondent No.2. None for respondent No.3. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The petitioner challenges the order passed by the Financial Commissioner under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act of 1954 (for short, the 1954 Act'), directing the sale deed executed jointly in the names of 2nd Civil Writ Petition No.1425 of 1983 (O&M) - 2 - respondent and one Mohinder Singh as invalid and also directing the Tehsildar (Sales)-cum-Managing Officer, Amritsar, to issue a Conveyance Deed in the name of 2nd respondent. The proceedings before the authorities came in the following fashion. 2. The 2nd respondent-Pritam Kaur's husband was one Inder Singh and he was an evacuee to whom the Custodian had granted a lease of a house property in Amritsar. Inder Singh and Pritam Kaur were in possession of the house under the Custodian. After the coming into force of the 1954 Act, the property continued in possession of Inder Singh and Pritam Kaur. The said Act made provisions for transfer as a measure of compensation. Inder Singh had died in the year 1963 and after his death, it appears that yet another person Mohinder Singh, arrayed as the 3rd respondent in the writ petition, started living in the same house with Pritam Kaur. The sale deed had been issued under the Act in recognition of the right as successor-in-interest of the lessee. On a purported joint statement of Pritam Kaur with Mohinder Singh, sale deed had been executed by the State in the joint names on 20.06.1966. 3. It is an admitted case that Mohinder Singh lived in the same house with Pritam Kaur. Mohinder Singh purported to transfer the half share which he claimed under the conveyance from the State in favour of the writ petitioner Shri Bachan Lal on 09.04.1969. The contention of Pritam Kaur was, she was residing at the back portion of the house, while Mohinder Singh was residing in the front portion Civil Writ Petition No.1425 of 1983 (O&M) - 3 - and after the purchase by Bachan Lal, he closed the passage and created obstruction to have free access to her own portion. It appears that Pritam Kaur had filed a suit for an injunction for the obstruction caused by Bachan Lal and the suit ended in a compromise when both parties agreed that they shall stay in their respective portions without any obstruction by one against the other. 4. The disputes that came between parties, namely, between Bachan Lal and Pritam Kaur led to a suit in partition for half share claiming under a purchase from Mohinder Singh. The suit had been filed in the year 1981 and Pritam Kaur had a different line of defence to give. She denied that Bachan Lal was in any way entitled to the property and that he was at no point of time in possession as a purchaser. She had by that time moved the Tehsildar (Sales) by means of an application to cancel the sale made jointly in the names of herself and Mohinder Singh. The contention was that Mohinder Singh had practiced a deception and forgery by applying to the authorities as though he was jointly entitled to a transfer. According to her, yet another lady had impersonated her and a joint conveyance had been made without her knowledge. The Tehsildar (Sales) appears to have dismissed her claim and she preferred an appeal to the then Settlement Commissioner, Jalandhar, who also dismissed the same. It was only thereafter that she filed a revision to the Financial Commissioner, challenging the sale jointly made by the authorities in favour of Mohinder Singh and herself. Civil Writ Petition No.1425 of 1983 (O&M) - 4 - 5. In the meanwhile, the suit for partition became ripe for trial and when it was taken up for adjudication, Pritam Kaur defended her action to state that the sale jointly in favour of Mohinder Singh and Pritam Kaur was itself not valid and Bachan Lal as a purchaser from Mohinder Singh, was not entitled to seek for partition. The trial Court considered the issue of whether Mohinder Singh was at any point of time in possession and held that he was actually in possession along with Pritam Kaur. On the effect of the pendency of proceedings before the Financial Commissioner, the trial Court held that if the joint sale deed were to be cancelled, she will have an independent right to challenge the sale in favour of Bachan Lal and recover possession of the same. The Civil Court decree that granted a share for partition did not go into the validity of the joint sale made by the authorities under the Act of 1954. The decree for partition was, therefore, conclusive on the issue of actual physical possession of Bachan Lal and prior to him his vendor Mohinder Singh. It was also final in so far as a transfer of interest of Mohinder Singh and if he was granted a half share, it was final between parties subject, however, to what the judgment itself provided that in the event of the joint sale deed in the names of Pritam Kaur and Mohinder Singh being cancelled, she would be entitled to recover possession of the same. It appears that there had been an appeal against trial Court decree by Pritam Kaur, but it was dismissed. She had filed a second appeal before this Court in RSA Civil Writ Petition No.1425 of 1983 (O&M) - 5 - No.51 of 1981 which was also dismissed by this Court. 6. After the disposal of the proceedings relating to partition, the impugned order came to be passed by the 1st respondent holding that Pritam Kaur had clearly expressed that she was willing to have even the thumb-impression contained in the alleged joint statement for transfer of the property in the names of Mohinder Singh and herself duly examined. Two witnesses had been examined by Bachan Lal to say that Mohinder Singh had signed along with Pritam Kaur but the authority held the adjudication in favour of Pritam Kaur essentially on the issue that a transfer could have been made under the provisions of the Act only to certain classes of persons and not necessarily only on the basis of possession. In this case, it must be remembered that the Act of 1954 specifies a special procedure for transfer to certain classes of persons through Section 10, which reads as follows:- 10. Special procedure for compensation in certain cases—Where any immovable property has been leased or allotted to a displaced person by the Custodian under the conditions published— (a) by the notification of the Government of Punjab in the Department of Rehabilitation No.4895-Development or 4891-Development dated the 8thJuly, 1959, or Civil Writ Petition No.1425 of 1983 (O&M) - 6 - (b) by the notification of all Government of Patiala and East Punjab States Union in the Department of Rehabilitation No. 8R or 9R dated the 23rd July, 1949, and published in the Official Gazette of that State dated the 7th August, 1949 and such property is acquired under the provisions of this Act and forms part of the compensation pool, the displaced person shall, so long as the property remains vested in the Central Government, continue in possession of such property on the same conditions on which he held the property immediately before the date of acquisition, and the Central Government may, for the purpose of payment of compensation to such displaced person transfer to him such property on such terms and conditions as may be prescribed. Explanation—..........” The expression “compensation” is used in a generic sense that would include property transferred in recognition of right in property which was “leased or allotted to a displaced person”. It is an admitted case that Inder Singh was a 'displaced person' and Mohinder Singh was not. When a transfer was effected under Section 10 by the Tehsildar (Sales), it could have been lawfully done only in the name of a displaced person or his representative. Civil Writ Petition No.1425 of 1983 (O&M) - 7 - Justifiably only Pritam Kaur could have been the beneficiary under the transfer and if Mohinder Singh's name had also been included, he would not be entitled to stake a claim in respect of the property. To this extent, the Financial Commissioner was perfectly justified in holding that Pritam Kaur alone was entitled to the transfer in her name. 7. In this case, several other incidents had happened that have to be necessarily taken note of and which cannot be discarded. Even at the time when the proceedings were being taken before the Financial Commissioner, there had been a Civil Court decree that recognized the petitioner's half share in the property. It was noticed that Mohinder Singh as an ostensible owner of undivided half share in the property, had effected the sale on 09.04.1969. The Civil Court recognized the petitioner as a purchaser from Mohinder Singh and also as a person, who was actually in possession of the said property. The law grants to a purchaser from an ostensible owner, who had no authority also certain rights on the ground of estoppel. In this case, Mohinder Singh though not lawfully entitled to the property when he had sold the same, had been actually in possession of half the extent of property and had also allowed for half of that said extent to fall into the hands of its purchaser. Section 41 of the Transfer of Property Act deals with a transfer by an ostensible owner, which reads as under:- “41. Transfer by ostensible owner.- Where, with the Civil Writ Petition No.1425 of 1983 (O&M) - 8 - consent, express on 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 was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, had acted in good faith.” In this case, Pritam Kaur had been fighting the purchaser right from the year 1976 when the purchaser filed a suit for partition, but in the suit filed by Pritam Kaur herself, she had admitted that Mohider Singh was jointly in possession along with her and that Mohinder Singh had sold his half share to Bachan Lal. There was surely, therefore, an implied consent for Mohinder Singh to sell and the trouble started only when Bachan Lal sought to prevent the passage to go to her property. The precipitate action by Pritam Kaur to have the sale annulled came much later but at the time of her own suit for injunction she certainly knew that Mohinder Singh had sold and she had also admitted to the purchaser's entering upon the portion held by Mohinder Singh. 8. The challenge to the order passed by the Financial Commissioner is founded also on a plea by the petitioner that he was an employee in Postal Department and at the time of purchase, an enquiry had been made when the 2nd respondent was reported to Civil Writ Petition No.1425 of 1983 (O&M) - 9 - have made a statement that Mohinder Singh was an owner of half share and he had sold the half share to Bachan Lal. The petitioner has also made reference to the suit filed by Pritam Kaur for injunction where the petitioner's actual physical possession of the property has been adverted to. The counsel for the petitioner was making an alternative plea that in any event, his possession as a bonafide purchaser must be protected. A right of a purchaser from an allottee whose allotment is subsequently cancelled has come up for decision before the Bench of this Court in The State of Haryana and others Versus Smt. Savitri Devi and others-1987(1) All India Land Laws Reporter 301, where the Court held that a bonafide transferee put in possession shall not be ordered to be evicted, even when the vendor, who was an allottee, lost the allotment by a cancellation subsequently. The same view stands expressed also in an earlier ruling in Bhagwan Dass Versus The State of Haryana, through the Secretary to Government Rehabilitation Department and others-1982(4) All India Land Laws Reporter 677. The learned counsel for the respondent stoutly argues that there is no plea of bonafide purchase anywhere in the pleadings of the petitioner and, therefore, there shall be no scope for making his possession. Section 41 of the Transfer of Property Act itself is intended to protect only persons, who had parted with consideration to an ostensible owner when the ostensible owner transfers the property, with express or implied consent of the actual owner. There Civil Writ Petition No.1425 of 1983 (O&M) - 10 - are no specific expression of bonafide purchase under Section 41 except that the component of bonafides are brought through the language of the Section which we have extracted in para 7 above. In this case, the petitioner has made such averment relating to parting of consideration, the actual visit to the property to make enquiries before purchase to ascertain the possession by the vendor, enquiry brought through the officials of the employer and the statement secured from Pritam Kaur herself about how Mohinder Singh was still in possession at the time when he purchased the property. 9. In this case, I would find no error in the order of the Financial Commissioner, but I will still not uphold the final adjudication directing the sale to be corrected to be in the name of Pritam Kaur only on account of the subsequent events that have taken place which were surely relevant and which were before the Financial Commissioner when he passed that order. The Civil Court decree had already been passed and obtained finality before this High Court. The Financial Commissioner could not have discarded the same. The order of the Financial Commissioner cannot, therefore, be sustained and the transfer which was made by the department would not require to be corrected only by the happening of the subsequent event where the allottee Pritam Kaur had allowed for a transfer to be made by the ostensible joint owner, who although had no authority to transfer, could pass a valid title by virtue of the implied consent of Pritam Kaur, who had allowed Mohinder Singh Civil Writ Petition No.1425 of 1983 (O&M) - 11 - to stay in possession along with her and allowed the property in turn to be transferred in favour of the petitioner. The petitioner's right would, therefore, stand recognized as a purchaser and the writ petition is allowed setting aside the order of the Financial Commissioner for the reasons referred to above. (K. KANNAN) JUDGE 20.09.2011 sanjeev