SMT. BHAGWAN KAUR WIFE OF MAJOR CHANAN SINGH, RESIDENT OF AMBALA CANTT. AND OTHERS Vs. LAND ACQUISITION COLLECTOR, LUDHIANA AND OTHERS

JUDGEMENT

(1.) THE appeal is in relation to an adjudication regarding title for apportionment under Section 30 of the Land Acquisition Act. The principal contest is between purchaser from one Chanan Singh claiming to be a power of attorney from the original owners of the property Yusaf and Ali. The rival claim to title was set up initially by Yusaf and Ali contending that they had been duped by the power of attorney and that they had revoked their power. The fact remained however that the sale itself had been prior to the date of revocation of the power of attorney by Yusaf and Ali. The Reference Court held that the sale in so far as it related to the share of Ali was not valid and provided for apportionment of the compensation ignoring the sale effected by Chanan Singh. The appeal is filed at the instance of the purchaser from Chanan Singh, who incidentally happens to be the son of Chanan Singh himself. The question that would arise for consideration is whether the principal, Ali could ignore the sale as not binding by contending that his power of attorney Chanan Singh had committed a fraud and was acting on his own account by taking a sale in favour of his son. This is again to be seen in the context of a co -claimant along with Ali, Yusaf, who had lodged the claim contending that the sale was not binding on them, however resiled from his statement in the course of trial and was prepared to concede that he had received his share of sale consideration from his power of attorney. It appears that during the course of trial when Yusaf gave evidence that he had received his share of consideration and that Ali had also received his share of consideration. Ali had sought permission of the court to cross -examine the co -petitioner. The Court had declined permission and that order was not challenged at any time. I may observe that in a petition which was jointly filed under a single verification, it could not have been possible for one petitioner to cross -examine another petitioner. The best course in such a situation would have been for one of the parties who complained that the other was acting against his interest must have taken permission of the Court to transpose him from the array of parties from claimant to the position of a respondent. However, in this case, I find even a petition for transposition had not been made and the cause title reveals that both Yusaf and Ali continued to be treated as applicants and the Land Acquisition Officer and other persons, who were setting up the title adverse to the applicant, had been shown as respondents. If Ali, who was one of the applicants, had not not availed to himself the opportunity to cross -examine his co -applicant by securing a transposition, he had also forsaken his opportunity to cross -examine a statement issued against his interest. In a situation like this, a statement which would be contested in cross -examination by a co -petitioner would itself operate as an admission to bind his interest as well.

(2.) I do not want the case to be knocked out at the threshold and an adjudication rendered in favour of the appellants only by taking the issue of admission relating to title. Admission as constituting a transfer of title in relation to immovable property is itself weak evidence as held by the Supreme Court in Ambika Prasad Thakur Versus Ram Ekbal Rai -AIR 1966 SC 605. I will therefore, proceed to examine whether the applicant Ali could have made valid assertion of title to the property by ignoring the sale which his power of attorney Chanan Singh had made in favour of his son Manjit Singh, arrayed as the 4th respondent. It should be noticed that an act of an agent is binding on his principal and if any transaction of sale is made by a principal, it will bind him to divest him of the title which he had. In a normal situation therefore when Chanan Singh had purported to sell the property that included the share of Ali, the transaction of sale would operate to transfer the title in favour of the purchaser, no matter that he did not know that his agent was selling the property at the particular time. The only situation when a principal could be protected is when the sale itself was unauthorized and the power of attorney did not provide such a right of transfer. That issue is not before me that the power of attorney was not granted a power to transfer title to the property. What is contended now is that Ali did not know about the sale and that he came to know about the sale only when the purchaser staked his claim before the Reference Court. He would contend that his agent had committed a fraud in selling the property. The limitation for fraud could be pleaded from the time when a person came to know that a fraud had been practiced. However, this cannot be applied without minding the act of agent will bind him against a third party, while he may initiate an action against the agent within a period of 3 years from the time when a fraud is unearthed. Such an action cannot validly be founded in law so as to bind a 3rd party, if an action is not brought within 3 years from the date when the sale had actually taken place.

(3.) THIS definition contains two important incidents where a transfer takes place in relation to immovable property which is registered. (i) The registration constitutes notice; (ii) if an agent has a knowledge of any particular act that knowledge is attributed to the principal himself. The proviso, however, excepts a situation where an agent fraudulently conceals the fact and the principal shall not be charged with notice thereof as against any person, who was a party to or otherwise cognizant of the fraud. In this case, if the agent was concealing the fact of sale, the principal could not be presumed to have notice of the transaction of sale. The proviso in explanation III states that he would not be charged with notice thereof as against any person, who was a party to or cognizant thereof. This exclusion is possible only if the other party, who was acting through the agent was himself cognizant on such fraud. It has to be, therefore, established that not merely the agent but also the purchaser had participated in the fraud by an active collusion amongst themselves.