Case: Gurbaksh Singh Vs. Nikka Singh

of title, but contended himself to dispose of the appeal on the ground that the appellant purchased the land in good faith from Mula Singh. The question of title was, therefore, left open and the High Court was certainly within its right in giving its own finding thereon.6. The finding given by the learned District Judge that the appellant was a bona fide purchaser in good faith was not based on the evidence in the case, but was merely an ipse dixit. Nor did the District Judge consider the impact of the provisions of S. 41 of the Transfer of Property Act on the facts of the case. Such a finding arrived at without evidence and without applying the correct principles of law cannot obviously bind the High Court. Section 41 of the Transfer of Property Act reads:"Where, with the consent, express or implied, of the persons interested in immovable property a person in 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."7. The general rule is that a person cannot confer a better title than he has. This section is an exception to that rule. Being an exception the onus certainly is on the transferee to show that the transferor was the ostensible owner of the property and that he had after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith. In this case the facts are tell tale and they establish beyond doubt that the appellant had the knowledge that the tilde of his transferor was in dispute and he had taken a risk in purchasing the same. The appellant and Mula Singh belong to the same village Kot Syed Mahmud. Mula Singh sold his property to the appellant on the very date on which he had to appear before the Revenue Authorities. Though the sale deed was executed on October 24, 1934 the consideration was actually paid only three years thereafter i.e. on October 22, 1937. The appellant also took a security bond from Mula Singh to indemnify himself against any loss that might be caused to him in the property in dispute. These facts show that the appellant had knowledge of the defect in the title of Mulla Singh. It is, therefore, not possible to hold that he had purchased it in good faith. The High Court, having regard to the aforesaid circumstances, held that the appellant knew that the transaction was in respect of a property of which the title was extremely doubtful. There are no permissible grounds for challenging the correctness of that finding before us in an appeal under Art. 136 of the Constitution.8. Nor do we see any merits in the contention that no presumption can be drawn in favour of the correctness of the impugned entry in the revenue record on the ground that the conditions given in the section are not satisfied. Section 37 of the Punjab Land Revenue Act reads:"Entries in records-of-rights or in annual records, except entries made in annual records by patwaris under clause (a) of S. 35 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in subsequent records otherwise than by-(a) making entires in accordance with facts proved or admitted to have occurred;(b) making such entires as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties.* * * * *"9. Section 44 says that an entry made in record-of-rights in accordance with the law for the time being in force or in an annual record in accordance with the provisions that Chapter and the rules there under, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. If the entry No. 1490 substituting entry No. 960 had been made in strict compliance with S. 37 of the Punjab Land Revenue Act, it cannot be disputed that there will be a presumption that the new entry was lawfully substituted for the old. In that event the old entry should yield to the new entry. This presumption is no doubt rebuttable. There is force in the contention of learned counsel that Mula Singh, having parted with the interest in the property, could not have admitted the correctness of the new entry or agreed to have the old entry corrected in the manner done so as to mind a purchaser. But that contention does not avail him in the present case as we satisfied on a perusal of the record that mutation entry 1490 had been made in accordance with the facts proved before the Revenue Authorities.There were the following pieces of evidence before Revenue Authorities, among others : (1) evidence of Mula Singh; (2) the report of the Subordinate Revenue Officer with all the connected annexures, including Ex. D-6 wherein the terms of the partition were recited. On the said evidence the Revenue Authorities corrected the entry in the record in the manner they did. It must therefore, be held that the provisions of S. 37 (a) of the Punjab Land Revenue Act were satisfied. If so, there is a presumption that the later entry was correct. The appellant did not adduce any evidence to rebut the said presumption. On the other hand. Ex. D. 6, the application dated 20th April 1929, for mutation of names in the revenue record, signed by all the co-sharers contained the following recital :"Entries with respect to the following Khasra Nos. may be made in the revenue papers in the name of the Teja Singh, co-shares No-5 to the time of one share and Bhai Jhandha Singh co-sharer No-2, to the tune of seven shares : 324/3.16, 328/5.06 etc."

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. It is true that as early as 1931 the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact however gross the error may seem to be, and the said ruling has since been followed by all the courts in India and accepted by this Court in a number of decisions. But in this case the learned District Judge has not given any finding on the question of title, but contended himself to dispose of the appeal on the ground that the appellant purchased the land in good faith from Mula Singh. The question of title was, therefore, left open and the High Court was certainly within its right in giving its own finding thereon.6. The finding given by the learned District Judge that the appellant was a bona fide purchaser in good faith was not based on the evidence in the case, but was merely an ipse dixit. Nor did the District Judge consider the impact of the provisions of S. 41 of the Transfer of Property Act on the facts of the case. Such a finding arrived at without evidence and without applying the correct principles of law cannot obviously bind the High Court.The general rule is that a person cannot confer a better title than he has. This section is an exception to that rule. Being an exception the onus certainly is on the transferee to show that the transferor was the ostensible owner of the property and that he had after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith. In this case the facts are tell tale and they establish beyond doubt that the appellant had the knowledge that the tilde of his transferor was in dispute and he had taken a risk in purchasing the same. The appellant and Mula Singh belong to the same village Kot Syed Mahmud. Mula Singh sold his property to the appellant on the very date on which he had to appear before the Revenue Authorities. Though the sale deed was executed on October 24, 1934 the consideration was actually paid only three years thereafter i.e. on October 22, 1937. The appellant also took a security bond from Mula Singh to indemnify himself against any loss that might be caused to him in the property in dispute. These facts show that the appellant had knowledge of the defect in the title of Mulla Singh. It is, therefore, not possible to hold that he had purchased it in good faith. The High Court, having regard to the aforesaid circumstances, held that the appellant knew that the transaction was in respect of a property of which the title was extremely doubtful. There are no permissible grounds for challenging the correctness of that finding before us in an appeal under Art. 136 of the Constitution.8. Nor do we see any merits in the contention that no presumption can be drawn in favour of the correctness of the impugned entry in the revenue record on the ground that the conditions given in the section are notwere the following pieces of evidence before Revenue Authorities, among others : (1) evidence of Mula Singh; (2) the report of the Subordinate Revenue Officer with all the connected annexures, including Ex. D-6 wherein the terms of the partition were recited. On the said evidence the Revenue Authorities corrected the entry in the record in the manner they did. It must therefore, be held that the provisions of S. 37 (a) of the Punjab Land Revenue Act were satisfied. If so, there is a presumption that the later entry was correct. The appellant did not adduce any evidence to rebut the said presumption.