JUDGMENT

1. This is an appeal by defendant 1 Mangat against a decree of the lower appellate Court in favour of the plaintiffs and defendants 7 and 8, for recovery of joint possession of two third share in kat khewat No. 13, mouza Basaon with the remaining defendants. Several grounds of appeal were entered, but the only grounds urged before us by the counsel for the appellant were grounds 2 and 3 in which he claimed that the appellant, an auction-purchaser, was entitled to the benefit of Section 41, T.P. Act. The lower appellate Court has considered this plea at considerable length and held that the appellant was not entitled to the benefit of that section, because he had not made sufficient enquiry. It appears to us that the appellant being an auction-purchaser, was not entitled to the benefit of Section 41, T.P. Act at all. That section begins:

Where, with the consent, express or implied, of the parsons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration.

2. The section, therefore, relates to a transfer by the ostensible owner. Transfer is defined in Section 5 as:

an act by which the living person conveys property, in present or in future, to one or more other living persons etc.,

3. That is to say, for a transfer there must be a person who conveys. In the case of an auction sale there is no person who conveys. It was argued by the learned Counsel for the appellant that the judgment-debtor was the person who had conveyed. No doubt the judgment-debtor up to the period of the auction sale is the owner. But he does not do act which can be said to be an act conveying the property. On the contrary the transfer of his rights to the auction-purchaser is made without his free will or consent or active participation. It is in fact a transfer by and not at all a transfer by any person conveying the property. Accordingly we are of opinion that the appellant does not derive any benefit from Section 41, T.P. Act. That being the only point in appeal, we dismiss this appeal with costs.