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IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Rajive Bhalla
The Hon’ble Mr. Justice Rakesh Kumar Jain
RSA No. 877 of 1991
Mohinder Singh (died) through his LRs.
v.
Banta Singh & Ors.
{Decided on 08/05/2012}
(A) Transfer of Property Act, 1882, S.41--Subsequent Bona fide Purchaser--In present case, First sale deed was executed by 'w' in favour of plaintiff--Same was accepted as valid--Then subsequent sale deed by his heirs in favour of subsequent vendees held to be invalid because they were left with no transferable rights in the property in dispute which had already been transferred by their father for valuable consideration to plaintiff.
(B) Transfer of Property Act, 1882, S.41--Subsequent Bona fide Purchaser--Subsequent vendees can seek protection under Section 41 of the 1882 Act from the persons of the earlier sale deed, which has been executed by the same vendor. (Para 7)
(C) Transfer of Property Act, 1882, S.41--Subsequent Bona fide Purchaser--Plaintiff was related to 'w' as his grandson and as nephew to the heirs of 'w'--If the land was sold by 'w' to plaintiff--It could not be believed that it was not within the knowledge of his heirs, who had sold the land of plaintiff to subsequent vendees who happened to be resident of same village--Hence, subsequent vendees could not be allowed to take the plea of Section 41 of the 1882 Act and were not bonafide purchasers.
(D) Transfer of Property Act, 1882, S.41--Subsequent Bona fide Purchaser--A person would be ostensible owner if he had express or implied consent of the persons interested in immoveable property and such transfer shall not be held to be voidable on the ground that the transfer had no authority to make it provided that the transferee had taken due care and acted in good faith while ascertaining the power of the transferor to transfer the said property. (Para 14)
(E) Transfer of Property Act, 1882, S.41--Subsequent Bona fide Purchaser--It is not suffice for the purchaser to inspect the revenue record but he is also suppose to enquire from the locality about the title of the vendor. (Para 15)
Mr. Rakesh Kumar Jain, J.: - This order shall dispose of CWP No.1753 of 1986 titled as Balwinder Singh and others Vs. Additional Director Consolidation of Holdings Punjab and others in which order dated 18.12.1985 passed by respondent No.1 has been challenged and the writ petition was admitted on 9.4.1986, whereas RSA No.877 of 1991 titled as Mohinder Singh (died) through his LRs Vs. Banta Singh and others was admitted on 29.4.1991 and was ordered to be heard with CWP No.1753 of 1986.
2. The brief facts of the case are that one Wazira Singh s/o Premi was co-sharer to the extent of half share in land measuring 70 bighas 11 biswas in village Khadial whereas the other half share was owned by Chhota Singh, Nihal Singh, Amar Singh, Chanan Singh and Kirpal Singh. The consolidation proceedings in village Khadial took place in the year 1961 and both the branches of Premi namely, Wazira Singh and Hira Singh, were allotted the following land:
182//4 & 7, 198//14, 17, 18, 23 & 24, 256//468, 288//31, 256//446, 287//63, 198//10, 11, 12, 13, 15 min, 19 min, 7, 8, 9, 16, 25, 15 min, 182//5 and 198//14.
3. After the consolidation was over, Wazira Singh s/o Premi sold land measuring 53 kanals 7 marlas to Mohinder Singh s/o Nihal Singh (who is plaintiff in the RSA and respondent No.2 in the writ petition) falling in Rectangle/Killa No.182//4 & 7, 198//14, 17, 18, 23 & 24, 256//468, 288//31 for a sum of Rs.7,000/- by way of registered sale deed dated 21.6.1965.
4. However, by virtue of an order passed by this Court, consolidation proceedings were started afresh in which the land mentioned below was allotted, in lieu of the land allotted to Wazira Singh and the heirs of his brother Hira Singh. The new numbers are as under:
1411//18, 161//23/2, 24/1, 182//4, 5/1, 197//5/3, 6, 7/1, 14 & 15, 198//9/2, 10, 11, 12, 13 & 18 and 182//26.
5. After fresh consolidation and allotment of new numbers, Mohinder Singh filed an application under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short ‘the Act’) before Additional Director Consolidation Holdings, Punjab on the basis of a registered sale deed executed by Wazira Singh to the extent of land measuring 53 kanals 7 marlas out of his share. The said application was allowed by the Additional Director Consolidation on 18.12.1985 and in lieu of the old numbers, which have been sold by Wazira Singh before the consolidation proceeding was revoked, new numbers were allotted in terms of the re-consolidation. Whereas in the year 1984, Mal Singh s/o Bhajan Singh, Nand Singh s/o Wazira and Munna @ Nand Kaur daughter of Wazira Singh, being the legal heirs of Wazira Singh, sold their half share of 97 kanals 10 marlas of land including the land which was already sold by Wazira Singh to Mohinder Singh in the year 1965, to Baljit Singh, Ran Singh @ Bhola and Balwinder Singh sons of Banta, all residents of village Khadial for an alleged sale consideration of Rs.42000/- on 30.7.1984. Consequently, CWP No.1753 of 1986 is filed by the vendees of the legal heirs of Wazira Singh challenging the order of the Additional Director Consolidation of Holdings, Punjab dated 18.12.1985. Mohinder Singh son of Nihal Singh, who had earlier purchased 57 kanals 7 marlas of land from Wazira Singh filed a suit for declaration and injunction in order to establish his title and challenged the alleged sale deed dated 30.7.1984 executed by legal heirs of Wazira Singh to subsequent vendees Baljit Singh, Ran Singh and Balwinder Singh. It is pertinent to mention that the suit filed by Mohinder Singh was dismissed by both the Courts below as a result of which he had filed Regular Second Appeal No.877 of 1991. In this background, both the CWP No.1753 of 1986 and RSA No.877 of 1991 were ordered to be heard together by this Court.
6. Since, it is agreed between the parties that fate of CWP No.1753 of 1986 would depend upon the decision of RSA No.877 of 1991 therefore, it has been found to be
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