Judgment Case ID: 1519

Judgment:
Appeal No. 128 of 1960. Appeal by special leave from the judgment and decree dated November 4	 1955	 of the Punjab High Court in R. section A. No. 493 of 1950. K. C. Sarpal	 section K. Mehta and K. L. Mehta	 for appellant. Anant Ram Whig and J. B. Agarwal	 for respondent No. 1. 1962. September 14. The judgment of the Court was delivered by SUBBA RAO	 J. This appeal by special leave is filed against the judgment and decree of the High Court of Punjab	 at Chandigarh	 in Second Appeal No. 493 of 1950 setting aside the order of the Subordinate judge	 Amritsar	 confirming that of the Revenue Officer	 Amritsar	 decreeing the appellant 's suit. The subject matter of the appeal is land measuring 9 kanals and 2 marlas bearing Khasra Nos. 292 and 296 in mauza Kot Syed Mahmud	in the District of Amritsar; the previous corresponding Khasra Nos. of the land were 324 and 328. This land formed part of a larger area which originally belonged to a number of co sharers	 including Teja Singh and jhandha Singh. There was a partition among the said co sharers and pursuant to that partition	 on April 20	 1929 an application was filed before the Revenue Authorities 57 for mutation of the names in accordance with the terms of the partition; and the petition was signed by all the co sharers including Teja Singh and jhandha Singh. It was stated in the petition	 marked as exhibit D 6 in the case	 that in respect of the said Khasra numbers one share should be entered in the name of Teja Singh and 7 shares in the name of jhandha Singh. This fact is not admitted. But in the mutation that was effected on August 26	 1929 the entire extent of the said Khasra numbers was shown against Teja 'Singh alone. The mutation number was 960. On August 10	 1934	 jhandha Singh	 discovering the mistake committed in the revenue record	 applied to the Revenue Authorities for correcting the said mistake. The Revenue Authorities enquired into the matter from August 10	 1934	 to October 31. The record of that enquiry discloses that Mula Singh	 the brother of Teja Singh Teja Singh died and Mula Singh was his heir admitted the mistake made in the revenue record before the concerned authorities. That apart	 they had before them a report of the enquiry made by a subordinate officer of the revenue department tracing the history of the said Khasra numbers and 'also giving the relevant facts	 namely	 the partition between the co sharers and the joint Application filed by them for mutation of their names in respect of the plots allotted to each one of them. On the material so placed before them	 the Revenue Authorities corrected the mistake	 and against mutation 	No. 1490 the correct shares of Teja Singh and Jhandha Singh	 namely	 1/8 and 7/8 respectively were given. On October 24	 1934	 i.e.	 after jhandha 	Singh had filed the application for correcting the mutation No. 960	 Mula Singh executed a sale deed conveying the said land bearing Khasra numbers 324 and 328 in favour of Gurbaksh Singh	 the appellant	 i.e.	 on the very date when Mula Singh had to appear before the Revenue Authorities. The appellant obtained a security bond from Mula Singh to indemnify him against any loss that might be caused to him in 58 respect of the said property; he also paid the bulk of the consideration only on October 22	 1937	 i.e.	 after three years of the sale deed. jhandha Singh in his turn sold his 7/8 share in the said Khasra numbers	 along with others	 to Gopal Singh from whom Nikka Singh	 the first respondent	 purchased the said share by a sale deed dated October 27	 1936. The appellant filed a suit under section 117 of the Punjab Land Revenue Act	 1887	 out of which the present appeal arises	 in the revenue court for a declaration of his exclusive title to the said two Khasra numbers	 and in that suit Nikka Singh	 the first respondent	 and Mula Singh	 the second respondent	 were the defendants. The suit has had a chequered career and it. is not necessary to trace it. It would be enough if we start with the decision of the Subordinate judge dated February 14	 1949	 to whose file the suit was transferred from the file of the revenue court by the District judge after it was remanded by the High Court on an earlier occasion. The learned Subordinate judge expressed his opinion on the relevant issue thus: . . so far as the land in suit is concerned. 	 Mula Singh had sold it to the plaintiff on 24th October	 1934	 and any admission by him made on 10th August	 1936 would not affect the plaintiff. Under Section 37 of the Land Revenue Act	 a mutation can be based either on facts proved or admitted. No facts had been proved before the Officer who attested mutation No. 1490	 and Mula Singh was nobody to admit any facts in relation to land which he had sold two years before to the plaintiff. The mutation entry 1490 was therefore not properly made and I decide issue No. 11 accordingly. " It will be seen from the aforesaid observations that the learned Subordinate Judge based his finding on the assumption that the admission of Mula Singh 59 could not bind the appellant who purchased his property before the said admission and that there was no the mutation entry No. 1490. On appeal the learned District judge	 though he made certain observations indicating his line of thought	 did not give any definite finding on the question of title	 but he dismissed the appeal on the finding that the appellant was a bona fide purchaser in good faith. The first respondent preferred a second appeal to the High Court. The High Court held that the correction of the earlier mutation No. 960 was made with the consent of both the parties and there is a presumption attached to the correctness of the later mutation and that the appellant was fully cognizant of the real state of affairs	 namely	 that Mula Singh had only 1/8 share in the said Khasra numbers. On those findings	 the decree of the learned Subordinate judge was set aside and the plaintiff 's suit was dismissed with costs throughout. Hence the appeal. Learned counsel for the appellant raised before us the following points: (1) The High Court has no jurisdiction under sections 100 and 101 of the Code of Civil Procedure to set aside concurrent findings arrived at by the two lower courts. (2) Under section 37 of the Punjab Land Revenue Act there is a presumption in favour of an entry in the revenue record if it is made in accordance with the facts proved or admitted to have occurred; but	 as in the present case the entry was corrected on the admission of Mula Singh after he transferred his interest in favour of the appellant	 the said admission could not constitute a legal basis for the said entry and therefore no presumption under that section would attach to that entry. 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 60 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 contented 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. 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 ipsi dixit	 Nor did the District judge 'consider the impact of the provisions of section 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 immoveable 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. " 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 61 the knowledge that the title 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 Mula 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 article 136 of the Constitution. 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 condition 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 section 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 entries in accordance with facts proved or admitted to have occurred; (b) making such entries as are agreed to by all the parties interested therein or are supported 62 by a decree or order binding on those parties; x x x x Section 44 says that an entry made in a record of rights in accordance with the law for the time being in force or in an annual record in accordance with the provisions of that Chapter and the rules thereunder	 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 section 37 of the Punjab Land Revenue Act	 it cannot be disputed that there would 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 bind a purchaser. But that contention does not avail him in the present case as we are 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 the Revenue Authorities	 among others: (1) evidence of Mula Singh; (2) the report of the subordinate revenue officer with all the connected annexures	 including exhibit 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	 there fore	 be held that the provisions of section 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	 exhibit D 6	 the application dated April 20	 1929	 for mutation of names in the revenue record	 signed by all the cosharers contained the following recital: 63 "Entries with respect to the following Khasra Nos. may be made in the revenue papers in the name of Teja Singh	 co sharer No. 5 to the tune of one share and Bhai jhandha Singh co sharer No. 2	 to the tune of seven shares: 324 3.16	 328/5.06 etc. The High Court was	 therefore	 right in holding that there was a presumption in favour of the correctness of the entry and the appellant had failed to rebut the same. The judgment of the High Court is correct and the appeal fails and is dismissed with costs. Appeal dismissed.

Summary:
Teja Singh and Jhandha Singh were co sharers in certain agricultural land. They partitioned the land taking 1 and 7 shares respectively and applied for mutation of names to the revenue authorities. In the mutation by mistake the entire land was shown against the name of Teja Singh. On discovering the mistake jhandha Singh applied for correction of the entry. During the pendency of these proceedings Teja Singh died and his brother and heir Mula Singh sold the entire land in favour of the appellant. Mula Singh appeared before the revenue authorities and admitted the mistake. On this admission and on the report of an enquiry made into the matter by a subordinate revenue officer the authorities corrected the mistake and the correct shares of Teja Singh and jhandha Singh were shown as 1/8 and 7/8. The appellant filed a suit for declaration of his exclusive title to the land. The trial court decreed the suit holding that the corrected mutation entry which was made on the admission of Mula Singh after he had already sold the property was not properly made. On appeal the first appellate court upheld the decree	 holding that Gurbaksh Singh was a bonafide purchaser in good faith but without giving any finding on the question of title. In second appeal the High Court reversed the findings and dismissed the suit. The appellant contended that the High Court had no jurisdiction to set aside concurrent findings of fact in second appeal and that no presumption could arise in favour of the corrected entry. Held	 that the High Court was justified in interfering in second appeal as the first appellate court had given no finding on the question of title. The finding that the appellant was a bonafide purchaser in good faith was not based upon any evidence and the onus was on the transferee to show that the transferor was the ostensible owner. The appellant had full knowledge of the defect in the title of Mula Singh. 56 Held	 further	 that the presumption under section 44 of the Punjab Land Revenue Act arose that the corrected entry was true as the entry was made in accordance with law. Section 37 provided that such an entry could be made in accordance with facts proved or admitted to have occurred. Though Mula Singh 's admission after he had parted with the interest in the property	 could not have been relied upon	 the entry was made in accordance with the facts proved before the revenue authorities by the report of the subordinate revenue officer which recited the	 terms of the partition also. The appellant did not adduce any evidence to rebut the presumption.