PERMOD KOHLI, J. - (1.) WHEN this appeal came to be admitted on 5.5.1980, no substantial question of law was framed, however, at the time of hearing, following substantial questions of law were projected by the counsel for the parties : (1) What is the construction of document dated 6.10.1956 styled as Tamliknama and does it confer title in the immovable property in favour of the plaintiff even without delivery of possession ? (2) Whether the judgment impugned suffers on account of non- consideration of relevant and material evidence and misreading thereof ? (3) Whether vendor having received sale consideration before the Registering Authority is entitled to plead that the sale was without consideration ? (4) Whether the vendor who has the knowledge of subsequent sale, can plead that the first sale was without consideration ?
(2.) IT is appropriate to notice the factual background of the case. Charanjit Singh and Teja Singh sons of Gurbux Singh were owners of land in equal shares. Charanjit Singh executed Tamliknama on 6.10.1956 in respect of 300 bighas of land, out of the total land described in the plaint in favour of Ravinder Kaur, his daughter who is the plaintiff in the suit. The land described in the Tamliknama was allegedly situated in Village Khaspur Tehsil Patiala. Admittedly, Ravinder Kaur was minor at the time of execution of Tamliknama. Charanjit Singh sold the suit land in favour of defendants Nos. 1 and 2 vide sale deed dated 30.12.1957. Even after the sale of the aforesaid property in favour of defendants Nos. 1 and 2, Charanjit Singh executed a rectification deed on 17.7.1958 and allegedly rectified the Tamliknama dated 6.10.1956 by substituting the name of the Village Khaspur to Village Mahla Heri. Since Charanjit Singh was a big landlord who was required to seek pegnission/sanction for transfer of property, accordingly he obtained sanction for sale on 3.12.1957 in favour of defendants Nos. 1 and 2. Defendant No. 2 Kultar Kaur sold part of the land purchased by her in favour of defendants No. 5 and 6 vide sale deed dated 11.12.1959 through Sadhu Singh, father of defendant No. 1 as her attorney which was duly witnessed by Charanjit Singh. Ravinder Kaur-plaintiff filed the present suit for declaration claiming to be the owner in possession of the suit land described in Tara "Urra" of the headnote of the plaint and for possession of the property mentioned in para "Arra" of the headnote. This suit was filed on 24.11.1967 allegedly on the basis of title acquired through Tamliknama dated 6.10.1956 and rectified on 17.7.1958. In the suit challenge was also made to the sale deed dated 30.12.1957 in favour of defendants No. 1 and 2. It was alleged in the plaint that the plaintiff became owner of 300 bighas of land on the basis of Tamliknama dated 6.10.1956 rectified on 17.7.1958 as in the original Tamliknama, name of the village was wrongly mentioned due to clerical mistake. The plaintiff also claimed that she was recorded in possession in Khasra Girdwari and in view of the fact that rectification deed was executed later on, no corresponding entry was made in the revenue record in her favour on the basis of the Tamliknama. The plaintiff also alleged that since the property was already transferred to the plaintiff, Charanjit Singh, could not have executed any sale deed in favour of defendants Nos. 1 and 2 and thus the sale is void and even subsequent sale executed by Kultar Kaur in favour of defendants Nos. 5 and 6 is also illegal. Defendants Nos. 1, 5 and 6 contested the suit wherein they denied the due execution of the Tamliknama dated 6.10.1956 as also rectification deed dated 17.7.1958 and also denied the ownership and possession of the plaintiff over the land mentioned in Para "Urra" and pleaded that the Tamliknama is a sham and fraudulent document. They also pleaded that description of the property in the Tamliknama was misleading. They claimed to be the bona fide transferees of the land for consideration and are protected under Section 41 of the Transfer of Property Act. Defendants also stated that they have already initiated partition proceedings which are at the final stage and the plaintiff has no competence, right or claim to challenge the sale in their favour. Defendants also pleaded that in fact the suit has been filed by Charanjit Singh, defendant through his daughter. It may be noticed here that Kultar Kaur, defendant No. 2 in her written statement admitted the claim of the plaintiff and pleaded that the sale in her favour and in favour of defendant No. 1 Mann Singh was sham and fictitious. On the basis of the pleadings of the parties, the trial court framed following issues : "1. Whether Charanjit Singh defendant executed Tamliknama dated 6.10.56 in favour of plaintiff and then executed deed of rectification on 17.7.56 in favour of the plaintiff regarding the suit land the plaintiff became owner of the suit property under these deeds ? OPP 2. Whether the plaintiff is in possession of the land mentioned in sub-para "Ura" of the plaint, if so, since when and to what effect ? Onus on the defendants except Kultar Kaur. 3. If Issue No. 1 is proved, is the Tamliknama in question a factitious, sham, fraudulent document ? OPD 4. Whether the Tamliknama in dispute is liable to be ignored on account of inaccurate and incomplete and insufficient and misleading description of the property in question as alleged in the written statement ? Onus on the defendants Nos. 1, 5 and 6. 5. Whether the suit is barred on the basis of doctrine of estoppel ? OPD 6. Whether defendants Nos. 1, 5 and 6 are bona fide transferees for value and without notice and their title is protected under Section 41 of the Transfer of Property Act ? Onus on defendants Nos. 1, 5 and 6. 7. Whether the petition has become final and cannot be challenged as alleged in Para No. 10 of the written statement ? OPD 8. Whether the suit is bad for non-joinder of the necessary parties ? OPD 1, 5 and 6. 9. Whether Charanjit Singh defendant owned and possession land in excess of the premissible limit on the date he executed the Tamliknama in dispute ? If so, whether the said Tamliknama is void on that account ? OPD. 10. Whether the plaintiff is a mere figure head and the real plaintiff is Charanjit Singh defendant ? OPD 11. Whether the sale deed alleged to have been executed in favour of defendants Nos. 1 and 2 is merely a paper transaction and was never acted upon ? 12. Whether the plaintiff is competent to raise the plea of issue No. 11 ? 13. Whether the plaintiff is entitled to the injunction prayed for as alleged in Para 4-B of the plaint ? 14. Relief."
(3.) AFTER the parties led their respective evidence, issues Nos. 1, 3, 4 and 9 were taken up together for consideration. The trial court, while considering the aforementioned issues returned a finding that Charanjit Singh was possessed of the land in excess of the permissible limits, but it was not accompanied with the delivery of possession of the gifted land which was essential to complete the gift and thus, the Tamliknama was not a valid document. Hence plaintiff has failed to prove that she is owner of the land in dispute. While considering issue No. 2, the trial court relied upon Khasra Girdawari, Ex.P2, P3, P4 and P19 and formed opinion that the plaintiff was in possession of land mentioned in para "Urra" of the headnote of the plaint since 1956 and the land mentioned in para "Arra" of the headnote is in possession of defendants Nos. 5 and 6 Dilip Singh and Chanan Singh. While deciding issues Nos. 6, 11 and 12, the trial court also came to the conclusion that the sale in favour of defendants Nos. 1 and 2 was without consideration, but sale in favour of defendants Nos. 5 and 6 was held to be bona fide. However, in ultimate analysis, the plaintiff's possession was protected to the extent land is mentioned in para "Urra" and other relief in the plaint was denied vide judgment and decree dated 7.1.1976.;