- (1.) The present appellant, Ch. Harikishan Singh, is the owner and landlord of the land, in dispute. Sawan Ram was the original occupancy tenant of this land. After his death, the occupancy rights devolved on his three sons namely Lalji Ram, Ram Chand and Surjan Ram. After the death of Ram Chand, one of his sons Labha Ram became the occupancy tenant to the extent of one-third share and he sold the same in favour of his uncle Surjan Ram and his cousin Dogar Ram son of Lalji Ram. The mutation of the said sale was, however, sanctioned in the presence of his widow Ved Kaur on June 14, 1936. After the death of Labha Ram, the present appellant filed a suit to set aside the said sale which was set aside by the Assistant Collector, First Grade, and it was ordered that Shrimati Ved Kaur was entitled to take back possession of the land, in dispute, and that otherwise, the landlord may take possession of the occupancy holding. The appeal filed against the said order was dismissed by the Collector. Shrimati Ved Kaur filed a suit for possession of her one-third share against the above mentioned vendees and got an ex parte decree passed in her favour on November 27, 1951, but took no steps execute the same.
(2.) The present appellant purchased one-third share of the occupancy holding from Shrimati Ved Kaur by means of a sale deed dated October 15, 1951 and took possession of the same. However, Shrimati Ved Kaur sold the same holding by means of another sale deed dated September 15, 1952, in favour of Dogar Ram, plaintiff-respondent (hereinafter to be called the second vendee). The second vendee filed a suit on October 11, 1962, for possession of the land purchased by him with the allegation that the present appellant took forcible possession of the said land. Shrimati Prito, daughter of the vendor Shrimati Ved Kaur, who is one of the respondents, did not contest the said suit. That suit was contested by the present appellant as defendant No. 2. Shri Harikishan Singh, the present appellant, contended in his written statement that the suit was not maintainable as compensation had not been paid to him and thus he was the full owner and further that Shrimati Ved Kaur had no right to sell the land, in question, which had already been alienated in his favour. Shri Bishan Dass, one of the defendants, contested the suit on the ground that he was a tenant under Shrimati Ved Kaur and that irrespective of the decision of the suit on merits his possession was not liable to be disturbed. On the pleadings of the parties, the following issues were framed :- 1. Whether Shrimati Ved Kaur had not paid the compensation to defendant No. 2 with regard to the said land. If so to what effect ? 2. Whether defendant No. 2 is the owner of one-third share of khasra Nos. 1454 and 3761/1443 ? (Onus disputed) 3. Whether defendant No. 2 purchased the occupancy rights in the suit land from Shrimati Ved Kaur. If so, to what effect ? 4. Whether defendant Nos. 3 and 4 are non-occupancy tenants under the plaintiff. If so, to what effect ? 5. Whether the plaintiff is the owner of the suit land ? 6. Whether the suit land was allotted in lieu of the land sold by Shrimati Ved Kaur to the plaintiff ? 7. Relief. The trial Court decreed the suit of Dogar Ram, plaintiff-respondent, holding that Shrimati Ved Kaur had acquired full proprietary rights in the land, in dispute, under the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (hereinafter to be called the Act), and that she had voluntarily sold her one-third share in the occupancy holding in favour of Dogar Ram, plaintiff-respondent. It was also held that the sale in favour of Ch. Harikishan Singh, the present appellant, was void and did not confer any rights on him and that defendant Nos. 3 and 4 were not tenants under the plaintiffs. In the circumstances, a decree for possession was passed in favour of Dogar Ram, plaintiff-respondent. Two appeals were filed, one by Bishan Dass, alleging himself to be a tenant (vide Appeal No. 112 of 1963) and the other by the present appellant Ch. Harikishan Singh (vide Appeal No. 116 of 1963). The appeal filed by Bishan Dass was accepted by the learned Senior Subordinate Judge and the decree of the trial Court in this respect was set aside. However, the other appeal (Appeal No. 116 of 1963) by the present appellant was dismissed and the decree of the trial Court in this respect in favour of Dogar Ram, Plaintiff-respondent, was affirmed. The present appeal has been filed against his judgment and decree.
(3.) The learned counsel for the appellant has contended that the sale of occupancy rights by Shrimati Ved Kaur in favour of the appellant was made on October 15, 1951, whereas sale of the same rights by her in favour of the plaintiff-respondent, Dogar Ram is dated September 15, 1952 (Exhibit P1) and, therefore, the prior sale in favour of the appellant will have priority and that at the time of the second sale in favour of the plaintiff-respondent, Shrimati Ved Kaur had been left with no rights in the land, in dispute. It was also contended that the sale in favour of the appellant was challenged by Dogar Ram, plaintiff-respondent along with others and the same was ultimately dismissed by Mahajan, J. (as he then was) in Regular Second Appeal No. 565 of 1955 on December 10, 1959, a certified copy of which is Exhibit P.10, and, therefore, the said sale cannot be challenged now. According to a Full Bench decision of the Lahore High Court in Labh Singh V. Hassu and others, 1940 AIR(Lah) 364alienation by sale or mortgage of an occupancy tenancy by a widow is absolutely forbidden and hence such an alienation is void whether it is made in favour of the landlord or his tenant. The sale of the land, in dispute, in favour of the appellant was also held to be void by Mahajan, J., (as he then was) and a copy of that judgment is Exhibit P10. It was inter alia held as under :- "It cannot be disputed that the transfer by the widow of an occupancy tenancy is void ab initio if it is made for a period exceeding one year. In the present case, the occupancy rights were sold outright and as such, the sale would be void." However, the suit of the plaintiff-respondent along with others challenging the sale in favour of the present appellant as reversioners of Shrimati Ved Kaur was dismissed on a different ground. The prayer of the plaintiffs in that case for amendment of the plaint in view of the fact that they had become the owners of the land, in dispute, by a subsequent sale, was dis-allowed, but it was all the same held that "if they have acquired any rights, they can enforce them in accordance with law as and when advised." Thus the sale in favour of the appellant relating to the occupancy rights though prior to the date of the sale in favour of the plaintiff-respondent cannot be taken advantage of by the appellant because the same is void. The learned counsel for the appellant has further contended that the sale of occupancy tenancy in favour of the appellant is valid under Section 43 of the Transfer of Property Act and Sections 13(1)(a) and 18 of the Specific Relief Act. Shrimati Ved Kaur, the vendor, was only an occupancy tenant at the time of the alleged sale, but after the enforcement of the Act in 1952, she became the full owner and as such, under the above-mentioned provisions, it will be deemed that the rights of ownership were sold to the appellant. Section 43 of the Transfer of Property Act and Sections 13(1)(a) and 18 of the Specific Relief Act, respectively, run as under :- "Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option." "Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter) has the following rights, namely :- (a) if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest." "Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets up a variation, the plaintiff cannot obtain the performance sought, except with the variation so set up, in the following cases, namely :- (a) where by fraud, mistake of fact or misrepresentation, the written contract of which performance is sought is in its terms of effect different from what the parties agreed to, or does not contain all the terms agreed to between the parties on the basis of which the defendant entered into the contract; (b) where the object of the parties was to produce a certain legal result which the contract as framed is not calculated to produce; (c) where the parties have, subsequently to the execution of the contract, varied its terms." In support of this assertion, reliance has been placed on Jumma Masjid, Mercara V. Kodimaniandra Deviah and others, 1962 AIR(SC) 847 , Sila Chandra Sekharam V. Ramchandra Sahu, 1964 AIR(SC) 1789, Nathu V. Allah Ditta,1922 AIR(Lah) 287 , Gohar Singh V. Fattu, 30 PR 1881 and Deenanath V. Chunnilal, 1975 AIR(Raj) 69However, the facts in all the above-mentioned cases were different and neither of them applies to the facts of the present case. In Jumma Masjid Mercara's case , it was held, - "Where the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer." In the present case, admittedly, the appellant was fully aware that he was purchasing only the occupancy rights when the sale of such rights was forbidden by law under Section 59 of the Punjab Tenancy Act. In 1936, Labh Ram, husband of Shrimati Ved Kaur, the present vendor, sold the occupancy rights in this land in favour of Surja Ram and Dogar Ram and the said sale was challenged by the present appellant in the Court of the Assistant Collector, and the same was set aside on February 10, 1947, and the appeal against the said judgment was also dismissed by the Collector on June 6, 1947. A copy of that judgment is Exhibit D9, on the record. All this shows that the present appellant was fully aware of the legal implications of the sale of the occupancy rights. Section 13(1)(a) of the Specific Relief Act is analogous to Section 43 of the Transfer of Property Act. The ratio of the judgment in Jumma Masjid Mercara's case will be equally applicable to meet the argument of the learned counsel for the appellant and no advantage can be taken by the appellant either under Section 43 of the Transfer of Property Act or Section 13(1)(a) of the Specific Relief Act. So far as Section 18 of the Specific Relief Act is concerned, it clearly does not apply to the facts of the present case as it pertains to the suits for specific performance of a contract. It has been clearly laid down in Sila Chandra Sekharam's case that, - "The expression 'subsequently to the sale or lease' means 'subsequently to the contract to sell or let' and not 'subsequently to the execution of the sale deed or lease deed by the vendor or the lessor, as the case may be' in pursuance of the contract to sell or let.";