Dasaundhi Ram and Another vs Hans Raj

H.S. Thakur, J.—The present Letters Patent Appeal arises out of a suit instituted by the Plaintiffs/Appellants (hereinafter to be referred to as ''the Plaintiffs'') seeking the relief of injunction and damages against the Defendant/Respondent (hereinafter to be referred to as ''the Defendant'').

A few facts relevant to decide this Letters Patent Appeal may be stated. The case of the Plaintiffs is that S/Shri Rati Ram, Prem Singh and others, who were the owners of the land in dispute, sold the said land to the Plaintiffs on February 8, 1968 and also delivered the possession of the same. The case of the Defendant on the contrary, is that the landowners Rati Ram and others had already sold the land in dispute to him by an oral sale on June 18,1967 for Rs. 1800/- and had also delivered the possession of the said land to him. According to the Defendant, a report of the oral sale had been made to the Patwari, who recorded the same in the register known as ''Roznamcha-Vaqiaty''. A mutation was entered regarding the oral sale and the possession of the Defendant was also entered in the revenue record in Kharif 1967. The Defendant later on came to know that the said land had been sold by the landowners to the Plaintiffs as well and that they had applied to the revenue assistant for the cancellation of the ''girdawari'' entries in favour of the Defendant. On the basis of that application, the revenue assistant passed an order for recording the Plaintiffs as in possession of the land. When the Defendant came to know about this entry, he applied for the restoration of the entries as recorded in his favour but the application remained pending. It was alleged by the Plaintiffs that the sale in favour of the Defendant was not valid as all the owners had not agreed to the oral sale in favour of the Defendant. It was also alleged that the land-owners had also not received full price of the land but had received only a sum of Rs. 1,000/- out of the total price settled at Rs. 1,800/-. It was further alleged that the sum of Rs. 1,000/- had been also returned by the landowners to the Defendant and the possession was taken back from him.

The trial court decreed the suit of the Plaintiffs but on appeal as preferred by the Defendant, the decree and judgment passed by the trial court was reversed by the learned District Judge. It was found that the oral sale was properly made by the landowners in favour of the Defendant and that he had been also put in possession of the land in dispute. It was also found that the full price of Rs. 1800/- had been paid by the Defendant to the landowners. Ultimately, it was held that the subsequent sale made in favour of the Plaintiffs was ineffective.

Aggrieved by the said decree and judgment, the Plaintiffs preferred a second appeal to this Court. The learned single Judge after properly considering the grounds of appeal, dismissed the same. During the course of judgment, the learned single Judge observed that "The case has been argued by Shri. S. Malhotra for the Appellants with his usual diligence and fairness and he has said all that could be said in favour of the Appellants but I am not satisfied that this appeal can succeed." The learned single Judge ultimately came to the conclusion that on an appraisal of the evidence on record, it is abundantly clear that Rati Ram and Prem Singh made an oral sale of the land on June 18, 1967 in favour of the Defendant. It was also pointed out that the Transfer of Property Act was not applicable on the date of the oral transaction and, on that account, it was not necessary to execute the sale deed in terms of the provisions of the Transfer of property Act. It was also affirmed that the Defendant was put in possession of the land and that he had also paid full price of the land in dispute to the landowners. Ultimately, the learned single Judge dismissed the appeal with costs.

The Plaintiffs have now filed, this Letters Patent Appeal. We have perused the record and considered the contentions raised by Mr. H.K. Bhardwaj, learned Counsel for the Plaintiffs. The first contention raised by the learned Counsel is that the sale is void since all the owners were not party to the oral sale made in favour of the Defendant. The second contention of the learned Counsel is that the Plaintiffs being bona fide purchasers of the land in dispute, no right had accrued to the Defendant on the basis of the oral sale. The last contention of Mr. Bhardwaj is that the sale in favour of the Plaintiffs was effected by executing a registered sale and, on that account, such a sale has an over-riding effect on the oral sale.

A perusal of the record shows that the oral sale made in favour of the Defendant is valid. It is apparent that S/Shri Rati Ram and Prem Singh were also the owners of the said land and, as such, they made the oral sale on behalf of all the owners. It is not disputed by Mr. Bhardwaj that no such other owners came forward with a plea that the sale was ineffective, as their consent was not obtained in making the sale. It is also not disputed that the Defendant was given possession of the land pursuant to the oral sale. At any rate, the Plaintiffs did not produce any co-owner as a witness to substantiate the ground that the oral sale was not with the consent of all the owners. Under the circumstances, it can inevitably be inferred that all the owners had given their consent to the oral sale in favour of the Defendant.

Adverting to the second contention that the Plaintiffs were bona fide purchasers of the land in dispute, it may be pointed out that at the relevant time the Transfer of Property Act was not applicable and an oral sale by mutation was permissible. An entry in the ''Roznamcha-vaqiaty'' regarding the oral sale was reflected at the instance of the landowners on June 18,1967. A mutation of sale was also attested in favour of the Defendant in a general meeting. Simply because the subsequent sale in favour of the Plaintiffs was made by a registered deed does not give a preferential right to the Plaintiffs.

Under the circumstances, while agreeing with the view taken by the first appellate court as also by the learned single Judge, there is no reason to doubt that the possession of the land in dispute had already been delivered to the Defendant before the report in ''Roznamcha-vaqiaty'' was made on June 18, 1967 pursuant to the oral sale. It was in the month of February, 1968, that the sale deed was executed in favour of the Plaintiffs after the possession had been already delivered to the Defendant pursuant to the oral sale. As such, the Plaintiffs are supposed to have the knowledge of the oral sale. As pointed out earlier above, at the relevant time, it was not necessary to get a deed of sale executed and registered but an oral sale was also permissible. As such, the subsequent sale deed executed and registered in favour of the Plaintiffs does not confer better rights on the Plaintiffs. A sequence of events reveals that the Plaintiffs were aware about the oral sale already made in favour of the Defendant. The Plaintiffs are also presumed to have the knowledge that the previous owners were not in possession of the land in dispute. At any rate, it was required of the Plaintiffs to find out the factual position. Any deliberate omission on their part does not entitle them to any benefit.

For the foregoing reasons, there is no substance in the contentions raised by the learned Counsel for the Appellants/Plaintiffs. No other point has been raised by the learned Counsel.

In view of the above discussion, there is no force in this appeal and the same is dismissed with no order as to costs.

The Appellants, however, if they so choose, can seek any appropriate relief against the previous owners of the land in dispute, without prejudice to the rights of the Defendant/Respondent.