- (1.) This second appeal arises out of the concurrent findings of fact by both the Courts below.
(2.) This case has a chequered history. Some of the admitted facts of this case are that Sunda alias Sunder Singh and Ram Singh, the two brothers, were original owners of the suit land. They sold the same to Lal Singh plaintiff-appellant in 1999 Bk. The sons of the vendors thereupon challenged the sale by instituting the suit for usual declaration that the sale would not affect their reversionary rights after the death of the vendors. This suit was decreed and it was directed that the reversioners would be entitled to recover possession of the suit land after the death of the vendors on payment of Rs. 690/-. Lal Singh, plaintiff-appellant, filed an appeal, which was allowed by the first appellate Court and the reversioners' suit was dismissed. The reversioners, however, succeeded in second appeal before the High Court and it was held that they would be entitled to get back possession of the suit land, after the death of the vendors, on payment of Rs. 1378/-. But on the basis of trial Court's decree, under some misconception, a mutation was entered in the revenue papers by converting the sale into mortgage for a consideration of Rs. 690/-. It appears that High Court's judgment was not produced before the revenue authorities. Thus, Sunda and Ram Singh were entered as owners of the suit land and Lal Singh vendee as the mortgagee. In this situation, a suit was filed by the plaintiff-appellant for a declaration that he was the owner of the suit land and the mutation of mortgage in his favour was illegal, null and void and ineffectual as against his rights. During the pendency of the suit, sons of the vendor-respondents got the suit land redeemed in their favour on payment of Rs. 1,378/-, and obtained possession of the suit land. Originally, the suit was for declaration but after redemption, Lal Singh plaintiff made an application for amendment and the suit was accordingly amended and converted into suit for possession. In the plaint, it was alleged that Sunda and Ram Singh, the vendors, had died about 10/12 years before the filing of the suit and their reversioners had not filed a suit for recovery of possession of the suit land, on the basis of a declaratory decree in their favour, within a prescribed period of three years from the date of the death of the vendors and as such they had lost their right to recover possession of the suit land and the plaintiff had thus become the owner. The suit was resisted by the defendant-respondents and the parties contested on the following issues :- 1. Whether the Court-fee has been correctly paid ? 2. Whether the suit is not maintainable in the present form ? 3. Whether the suit is beyond limitation ? 4. Whether the plaintiffs have become the owners of the property in dispute as defendant Nos. 1 and 3 have neither paid Rs. 1,378/- to him after the deaths of Sunder Singh and Ram Singh vendors, nor they had instituted any suit for possession within three years of there deaths ? 5. Whether the property in dispute had been mortgaged by defendant Nos. 1 and 2 with the plaintiff under the order of the High Court ? 6. If issue No. 5 is decided in favour of the defendants. whether the order of redemption was not validly passed ? 7. Whether defendant No. 3 are bona fide purchasers for value ? if so, to what effect ? 8. Relief.
(3.) The suit was initially decreed by the trial Court, but on appeal the learned Additional District Judge remanded the case for a fresh trial. The trial Court again decreed the suit and maintained its earlier judgment. On appeal, the learned District Judge permitted the defendants to amend their written statement with the object of raising the plea of estoppel as contemplated by Section 41 of the Transfer of Property Act and accordingly the written statement was amended and the plaintiff also filed replication. Thereafter, the learned District Judge vide his order dated June 27, 1961, deleted issue No. 7 and substituted the following three issues as Nos. 7 to 9, renumbered the relief issue as No. 10 and called the report of the trial Court on the additional issues, which are reproduced below :- Issue No. 7. - Whether the plaintiff has by his declaration, act or omission intentionally caused or permitted defendant Nos. 8 to 12, Naranjan Singh, Raghunandan Singh, Charanjan Singh, Gugan Singh and Ghaman Singh to believe that he is not the land in dispute and to act upon such belief and is, therefore, estopped from urging his rights against them ? Issue No. 8 - Whether defendant Nos. 5 to 7, Gurdev Singh, Sukhdev Singh and Nand Singh, were the ostensible owners of the land in suit with the consent, express or implied, of the plaintiff and transferred the same for consideration to defendant Nos. 8 to 12, Naranjan Singh, Raghunandan Singh, Charanjan Singh, Gugan Singh and Ghaman Singh, and whether defendant Nos. 8 to 12, Naranjan Singh, Raghunandan Singh, Charanjan Singh, Gugan Singh and Ghaman Singh took reasonable care to ascertain that defendant Nos. 5 to 7 had power to make the transfer and acted in good faith ? Issue No. 9. - if issue No. 8 is decided in favour of the defendant 8 to 12, is the plaintiff entitled to urge his rights against defendants 8 to 12 ? Accordingly, the trial Court, by his order dated October 3, 1961, submitted his report and it held that the plaintiff by this conduct in entering into an agreement of sale with defendant Nos. 5 to 7 on 21.3.1959 and later on by receiving Rs. 2000/- from Gurdev Singh and Sukhdev Singh on account of breach of agreement of sale induced a belief in all concerned that he was not the owner of the suit property and that he would have no objection to its sale by defendants 5 to 7 to third person and thus was debarred from using his right against defendants 8 to 12. Under issue No. 8, it held that defendants 8 to 12 were not protected under Section 41 of the Transfer of Property Act and in the result it decided that the plaintiff was entitled to possession of half of the suit land. Objections to the report were filed by the plaintiff. The learned District Judge did not agree with the report and he, vide his judgment dated September 24, 1962, dismissed the appeal holding that there was no estoppel and Section 41 of the Transfer of Property Act did not protect defendant Nos. 8 to 12. Defendants 8 to 12 filed second appeal (R.S.A. No. 1372 of 1962) which was heard by Dua, J., as he then was, who set aside the judgment and decree of the District Judge and remanded the appeal to the District Judge for a fresh decision in accordance with law and in the light of the following observations made therein :- "I am accordingly of the view that the judgment of the learned District Judge is vitiated by an erroneous approach to the basic question which centers round the applicability of Section 41 of the Transfer of Property Act to the case in hand. I an not unmindful of the fact that the question of bona fide purchase in good faith is largely one of fact, but in the case in hand, it obvious that the learned District Judge, has approached the consideration of the question from a point of view which is clearly erroneous in law. I, however, agree that in order to attract Section 41, Transfer of Property Act, it is for the transferee to show that the transferor was the ostensible owner of the property and that he had after taking reasonable care to ascertain that the transferor had power to make the transfer acted in good faith, but while considering this question, it is inappropriate to adopt a doctrinaire approach to the question and the matter must be looked at in a practical way, keeping in view the normal manner in which an average human being acts." It is in these circumstances that on remand the learned District Judge, in the light of the observations made by Dua, J., heard the parties afresh and accepted the appeal and dismissed the suit of the plaintiff with regard to the half of the suit land purchased by defendant Nos. 8 to 12. Before the learned District Judge, the parties confined themselves to the question of estoppel and applicability of Section 41 of Transfer of Property Act, which are the subject matter of substituted issue Nos. 7 and 8. It was held by him that defendant Nos. 5 to 7 were ostensible owners of at least half of the land in dispute and the consent of Lal Singh to this state of affairs was clearly implied because he himself had agreed to purchase the land in the name of his sons. It was also held by him that defendant Nos. 8 to 12 were transferees from defendant Nos. 5 to 7 or consideration in good faith. It is in this situation that the plaintiff has approached this Court in second appeal.;