J.V. Gupta, J. - (1.) This is Plaintiff's second appeal whose suit for possession of one kanal four marlas of land has been dismissed by both the Courts below.
(2.) The controversy relates to the agricultural land measuring one kanal four marlas comprised in killa No. 17/4 (0 -18 Marias) and killa No. 24/2 (0 -06 marlas) of rectangle No. 7. Khusala Mal had two sons. Basanta Mal and Mansa Ram. Basanta Mal had two sons, Ram Dass and Jagan Nath, Plaintiffs whereas Mansa Ram had two sons, Kewal Krishan and Basheshar Nath, Defendants Nos. 1 and 2. According to the Plaintiffs, Basanta Mal purchased one kanal eight marlas of land comprised in khasra No. 1886 in the year 1902. In the year 1912, consolidation of holdings took place in the village and in lieu of the old khasra No. new khasra No. 2291 was allotted. Basanta Mal died in the year 1960. After his death, mutation was sanctioned of the said land in favour of his two sons, Ram Dass and Jagan Nath. In the year 1926, Defendants Kewal Krishan and Basheshar Nath filed a suit for declaration against Ram Dass and Jagan Nath, Plaintiffs. That suit was decreed on a compromise. When the mutation was sanctioned on the basis of the said decree, the land measuring one kanal eight marlas comprised in khasra No. 2291 was mutated in their favour assuming that it was also covered under the decree, whereas the decree did not relate to the said land. However, the said mutation entry in favour of both the Defendants continued from the year 1926 onwards and was also incorporated in the jamabandis. In the year 1959, consolidation of holdings again took place in the village. Therein, the said area was allotted to Defendants Kewal Krishan and Basheshar Nath in view of the revenue entries in their favour. Not only that in the year 1959, the Defendants sold the suit land to Puran Chand, Defendant. In the year 1960, Puran Chand sold the said land to Om Parkash and Ajudhia Parkash, Defendants Nos. 4 and 5. In the year 1969, Om Parkash, Defendant No. 5, further made a gift of the land purchased by him in favour of his daughter Sudesh Kumari, Defendant No. 6. The Plaintiffs filed the present suit on May 25, 1970 claiming themselves to be the owners of the suit land. According to them, the suit land was purchased by their father Basanta Mal, but in the year 1926, the mutation was wrongly sanctioned with respect to the suit land in favour of the Defendants on the basis of the compromise decree though the suit land was never the subject -matter of the said compromise. According to the Plaintiffs, they had been in possession of the suit land earlier, but later on since it was included in a pond, they were deprived of its possession. When the Defendants started construction on the suit land and claimed ownership thereof, they immediately filed the present suit for possession. In the written statement, the Defendants denied the claim of the Plaintiffs. They also denied that the Plaintiffs were ever in possession of the land. According to the Defendants, prior to Defendant No. 5, Defendant No. 3 who had purchased it from Defendants Nos. 1 and 2 was in actual possession thereof. Plea under Sec. 41, Transfer of Property Act, (hereinafter called the Act) was also taken and it was averred that the vendees were the bona fide purchasers for consideration without notice. The trial Court found that the suit land was not allotted during the consolidation of holdings in lieu of the land measuring one kanal eight marlas comprised in khasra No. 2291. It was further held that the Plaintiffs were estopped from filing the suit because Ram Dass was present when the mutation was sanctioned. However, Jagan Nath, Plaintiff, was not held to be estopped from filing the suit because he was not present when the mutation was sanctioned. As regards the vendees, it was held that they were bona fide purchasers for value without notice. Gift by Defendant No. 5 in favour of his daughter, Defendants No. 6, was also held to be valid. In view of these findings, the Plaintiffs' suit was dismissed. In appeal, the learned Senior Subordinate Judge, with enhanced appellate powers, affirmed the findings of the trial Court except under issue No. 3 which was to the effect: whether the Plaintiffs are estopped from filing this suit by their acts and conduct ? It was held thereunder that even Ram Dass, Plaintiff, was not estopped from filing the suit because he had not waived his right. Consequently, the appeal filed by the Plaintiffs was dismissed. Dissatisfied with the same, they have come up in this second appeal to this Court.
(3.) The learned Counsel for the Appellants contended that it has been wrongly held that the suit land had not been allotted in lieu of the old khasra No. 2291. According to the learned Counsel, the findings of the Courts below in this behalf are wrong and illegal. The learned Counsel further contended that the provisions of Sec. 41 of the Act, were never complied with because under the proviso thereto, the transferee is to act in good faith after taking reasonable care to ascertain that the transferer had the power to make the transfer. This, according to the learned Counsel, was not even pleaded in the written statement and there was absolutely no evidence on the record to prove the same, Thus, argued the learned Counsel the findings of the two Courts below in this behalf were illegal and misconceived. In support of the contention, the learned Counsel relied upon Nageshar v/s. Raja Pateshri, A. I. R. 1915 P. C. 103, Shamsher Chand v/s. Bakhshi Mehr Chand, A. I. R. 1947 Lah. 147,: Dwarka Das v/s. Rangi Lal : A. I. R. 1953 P&H 289; Mehdi Hasan v/s. Ram Ker : A. I. R. 1982 All. 92 and Suraj Rattan v/s. Azamhad Tea Co. : A. I. R. 1965 S. C. 295;