D.S.Tewatia, J. - (1.) THE only question, which is common to both the appeals (R.S.A.s 674 and 675 of 1965), that arises for determination is as to whether the principles enshrined in Section 41 of the Transfer of Property Act, 1882 (Act 4 of 1882), hereinafter called the Property Act, can be invoked by a transferee to protect his rights qua the land which he purchased bona fide for consideration if that land happened to be owned by the Union of India - -the same being the evacuee property.
(2.) BEFORE proceeding with the consideration of the proposition of law above said, a few relevant facts, that are not in dispute, may be stated. These are: One Daulat Ram was mortgagee of certain land left behind by him in Pakistan. He filed his claim before Government of India of which copy is Exhibit D. 1, wherein he described himself as mortgagee of the land in lieu of which he was making claim for allotment. In Tasdiqi Parcha, copy of which is Exhibit D. 2, he had been recorded only as a mortgagee. In the copy of Jamabandi received from West Pakistan, he was shown as a mortgagee, but due to inadvertance or mistake of some functionary of the Government, he was allotted land measuring 65 kanals 6 marlas in village Labani as owner in lieu of mortgagee land left behind by him in West Pakistan. He was succeeded by his grandsons Hari Chand, Jassa Ram and Ram Chand who were recorded as owners of the aforesaid land, as evidenced by copy of Jamabandi Exhibit P. 5 for the year 1958 -59. After this, as a result of consolidation proceedings in the village, land in dispute measuring 70 Kanals, 16 Marlas was allotted to them in lieu of land measuring 65 Kanals 6 Marlas. Thereafter, Jassa Ram sold his one -third share in the aforesaid land in favour of his other two brothers, namely, Hari Chand and Ram Chand and these two brothers then sold the entire land aforesaid by means of a registered sale -deed dated 17th December, 1958 in favour of Plaintiffs 1 to 3, deceased father of Plaintiff No. 4 and Defendants Nos. 3 to 5, for a consideration of Rs. 3,000. The mutation regarding the aforesaid sale was sanctioned in their favour on 20th December, 1959. In the meantime, the Chief Settlement Commissioner by his order dated 12th June, 1961, Exhibit D. 4. cancelled the allotment of land in the name of Daulat Ram on the ground that he having left land in Pakistan in which he had only mortgagee rights, was not entitled to allotment of land in lieu thereof as owner and as a sequal to this order the mutation of sale aforesaid was cancelled on 29th June, 1962 and that after the cancellation of the allotment in favour of Daulat Ram, part of the land was auctioned by Rehabilitation authorities to Defendants 6 to 8. The Plaintiffs filed a suit for a declaration that they were owners of the land in suit and that Defendants 1 and 2 had no title or interest in it. The trial Court, inter -alia, held that the Principles enshrined in the provisions of Section 41 of the Property Act protected the Plaintiffs' rights in the land and it decreed the suit. The lower appellate Court regarding this point took a contrary view and dismissed the suit.
(3.) MR . D.S. Nehra defending the order of the lower appellate Court has argued that the provisions of Section 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, (No. 44 of 1954), hereinafter referred to as the Rehabilitation Act is a complete bar to the jurisdiction of the trial Court in the matter for so long as the order of the Chief Settlement Commissioner under Section 24 of the Rehabilitation Act, Exhibit D. 4, stands, the Plaintiffs would have no right and that validity of that order cannot be called in question in the civil Court.;