Prem Chand Jain, J.@mdashGurbachan Singh minor through his uncle Tota Singh has filed this appeal against the judgment and the decree dated 20th May, 1975, of the learned Additional District Judge, Faridkot, by which the judgment and decree of the trial Court were set aside and the Plaintiffs'' suit for possession of the land in dispute measuring 59 Kanals and 5 Marias to the extent of 1/6th share was decreed with the direction that before getting the possession, the Plaintiffs shall pay to the vendee-defendant half of the mortgage amount of Rs. 835.50 i.e. Rs. 417 75.
2. In order to appreciate the controversy certain salient features of the case may be noticed:
3. One Sunder Singh son of Chattra was the owner of l/3rd share of land. On his death which occurred in the year 1962, his share in the land was mutated in the names of his two daughters, Veero and Gurdial Kaur, Defendants No. 1 and 2, vide mutation dated 7th June, 1965, Exhibit D-4. Viro and Gurdial Kaur sold away their one-third share in favour of Gurcharan Singh, Defendant No. 3, for a sum of Rs. 10,000/- by means of a registered sale deed dated 1st July, 1968. Exhibit D-2. Smt. Roori filed a suit out of which this appeal has arisen, claiming l/9th share in the land i.e. l/3rd share in Sunder Singh''s share on the pleas that she was the daughter of Gurdial Singh, the pre-deceased son of Sunder Singh and as such was entitled to inherit Sunder Singh''s estate equally with Veero and Gurdial Kaur and that Veero and Gurdial Kaur had unlawfully sold away the Plaintiffs'' share and the sale so far as it concerned their share was void and ineffective.
4. On 6th may, 1971, Smt. Roori made an application that Sarwan Singh and Surjan Singh sons of Smt. Aso, one of the three daughters of Sunder Singh, who had however pre-deeeased him, were alive and they too should be impleaded. The plaint was allowed to be amended and Surjan Singh and Sarwan Singn were allowed to be arrayed as co-defendants in the suit. Subsequently, they both were transposed as co-plaintiffs on their application vide order dated 24th June, 1971. In the amended plaint, the two sets of the Plaintiffs together claimed l/6th share in the suit land i.e. 1/2 share in Sunder Singh''s estate.
5. The suit was resisted by the Defendants on various grounds, The Plaintiffs'' alleged relationship with Sunder Singh was controverted as also the fact that they had inherited the suit land along with Veero and Gurdial Kaur. In the alternative, the plea of acquisition of ownership by adverse possession was raised. A further plea was raised by the vendee-defendant that he was a bona fide purchaser for value and the sale in his favour was immune from challenge in view of the provisions of Section 41 of the Transfer of Property Act (for short the Act). The bar of limitation was also invoked Another plea raised was that in the event of the suit being decreed, the Plaintiffs should be directed to pay Rs. 2,250/- to the vendee-defendant, this being the amount paid by them to get the land redeemed.
6. On the pleadings of the parties, the following issues were framed:
1. Whether the Plaintiffs are owners of the suit land ? OPP
2. Whether the Defendant No. 2 is a bona fide purchaser for value without notice of the suit land ? OPD
3. Whether the land was mortgaged by Sunder Singh and Defendant No. 3 is entitled to get Rs. 2,250/- as mortgage amount from the Plaintiffs in case the suit is decreed ? OPD
4. Whether the Defendants No. 1 and 2 have become owners by adverse possession ? OPD
5. Whether the suit is beyond time ? OPD
6. Relief.
The parties led evidence.
7. On consideration of the evidence, the learned Sub Judge found that Roon Plaintiff was the daughter of Gurdial Singh, a pre-deceased son of Sunder Singh, whereas Sarwan Singh and Surjan Singh were the sons of Smt. Aso, a pre-deceased daughter of Sunder Singh. Issue No. 1'' was thus decided in Plaintiffs'' favour and they were held to be entitled to inherit the suit property along with Veero and Gurdial Kaur. Issue No. 2 was, however, decided in Defendants'' favour and it was held that Gurcharan Singh vendee was a purchaser in good faith:for value, he having made prudent enquiries with regard to Veero and Gurdial Kaur''s ownership by consulting the revenue records With regard to issue No. 3, the learned Sub Judge found that the land of Sunder Singh''s share lay mortgaged for Rs. 835.50 and that was the amount payable to the vendee-defendant in the event of the suit being decreed In view of the finding on issue No. 2, the suit of the Plaintiffs was dismissed.
8. Feeling aggrieved from the judgment and decree of the trial Court, the Plaintiffs preferred an appeal. The learned Additional District Judge. on consideration of the entire evidence, oral and documentary, reversed the finding of the trial Court on issue No. 2 by holding that in the circumstances of the case, the protection of the provisions of Section 41 of the Act could not be invoked by the transferee Defendant and the sale in his favour would not be protected. In view of the reversal of finding on issue No. 2, the learned Additional District Judge, as earlier observed, granted the decree in favour of the Plaintiffs Hence the present appeal by the vendee Defendant.
9. The only point that needs determination in this case is as to whether the Appellant is entitled to claim benefit of the provisions of Section 41 of the Act. What is sought to be argued by Mr. K.C. Puri, Learned Counsel, is that the transfer was made in favour of the Appellant for consideration by the persons who were ostensible owners of such property with the consent of the Plaintiffs and that the vendee was entitled to the protection afforded to him by virtue of the provisions of Section 41 of the Act.
10. After giving my thougtful consideration to the entire matter, I find no merit in this contention of the Learned Counsel. As has been observed by the learned Additional District Judge, there is no evidence in the instant case to indicate that the Plaintiffs had ever accorded their consent, express or implied, to the transferors to be the owners of Sunder Singh''s entire estate. This important ingredient, if missing, would be sufficient to takeaway the protection afforded to the vendee Defendant u/s 41 of the Act. In detailed discussion in para of the judgment, the learned Additional District Judge has given cogent reasons for negativing the claim of the Appellant and 1 find no ground to differ with that reasoning. The view taken by the learned Additional District Judge on issue No. 2 is perfectly legal and just and no ground has been made out for interfering with the same.
11. No other point was raised.
12. For the reasons recorded above, this appeal fails and is dismissed but in the circumstances of the case, I make no order as to costs.
