- (1.) The defendants have come up in second appeal against the judgment and decree of the first appellate Court affirming on appeal those of the trial Judge, whereby the suit of plaintiff/respondents (hereinafter referred to as the plaintiffs) for possession of the disputed property was decreed. The facts :-
(2.) The plaintiffs are the sons and daughters of Bakhtu Ram and Kauri Bai is his widow. On partition of the country, Bakhtu Ram migrated to India and died on 25.11.1957 at Rajpura town. The settlement Officer, Patiala on his dated 20.6.1960 held that the plaintiffs and Kauri Bai are the legal heirs of Bakhtu Ram. Kauri Bai representing herself to be the sole heir Bakhtu Ram got allotted three standard acres 6-3/4 units of land of her own name form Managing Officers, Sangrur on 14.12.1966. Gobind Ram acting as attorney of Kauri Bai sold 28 Kanals 16 Marlas of land to defendant Nos. 1 to 3/appellant Nos. 1 to 3 vide registered side deed dated 15.5.1967. Thereafter Ditu Ram acting as the attorney to Kauri Bai sold 58 Kanals 16 Marlas of land to defendant Nos. 4 to 6/appellant Nos. 4 to 6 vide sale deed dated 3.1.1967. The plaintiff filed an appeal against the order dt. 30.7.1969 vide which Sannad dated 26.7.69 was issued in respect of the disputed land in the name of Kauri Bai. The appeal was accepted on 21.11.1969. The order of the Managing Officer, Sangrur dated 14.12.1966 was reversed and it was held that the plaintiffs and Kauri Bai were the joint owners of the land allotted to Bakhtu Ram and Sannad dated 2.3.1970 was issued by the Tehsildar Sales-cum-Managing Officer Sangrur vide order dated 2.3.1970. The plaintiffs and Kauri Bai are the joint owners of the suit land. The plaintiffs are the owners to the extent of 3/4th share while Kauri Bai is the owner of 1/4th share. She was not competent to alienate the share of the plaintiffs. The sale with respect to their share was illegal. The defendants denied the allegations inter alia, pleading that they had purchased the land from the owner recorded as such in the records of right. The order setting aside the Sannad whereby the land was allotted in the name of Kauri Bai was passed without hearing them and thus, was not binding upon them. It was also pleaded that they are the bona fide purchasers for value and consideration and are entitled to the protection of Section 41 of the Transfer of Property Act (for short the Act).
(3.) From the pleadings of the parties, the following issues were framed :- 1. Whether the plaintiffs are the sons and daughter of Bakhtu Ram deceased ? OPP 2. Whether the land in dispute was allotted to Bakhtu Ram when he migrated to India ? OPP 3. Whether the suit is not within time ? OPD 4. Whether defendants No. 1 to 6 are bona fide purchasers for consideration and are protected under Section 41 of the Transfer of Property Act ? OPD 5. Whether the suit is not maintainable in the present form ? OPD 6. Whether the plaintiffs are estopped from filing the suit ? OPD 7. Relief." Issue No. 1 was answered by the trial Judge in favour of the plaintiffs and it was held that they were the sons and daughter respectively of Bakhtu Ram deceased; issue No. 2 was answered in favour of the plaintiffs and it was held that the land was allotted to Bakhtu Ram on his migration to India after partition of the country; issue No. 3 was decided against the defendants and it was held that the suit was within limitation; issue No. 4 was answered against the defendants and it was held that they were not entitled to protection under Section 41 of the Act; issue Nos. 5 and 6 were disposed of together and they were not pressed by the counsel for the defendants and were, therefore, answered against the defendants. The suit was ultimately decreed. On appeal by the defendants, the first appellate Court after appraisal of evidence came to the conclusion that the plaintiffs were the sons and daughter of Bakhtu Ram deceased and the land was allotted to Bakhtu Ram. It further found that the vendees made no effort to verify that Kauri Bai the vendor was the sole heir of Bakhtu Ram. In the jamabandi attached with the sale deed, there was a note that the land was allotted to Bakhtu Ram through his legal heir Kaur Bai. In the sale deed there is a specific recital that the land had been allotted to Bahktu Ram and Kauri Bai had become the owner by succession. The vendees admitted at the trial that they did not make any effort to find out if Bakhtu Ram had left behind any other heir. The first appellate Court also held that it was imperative for the vendees to make proper enquiries whether Bakhtu Ram left any other heir apart from Kauri Bai. On examination of these proved facts, the first appellate Court held that the defendants are not entitled to the protection of Section 41 of the Act..;