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PETITIONER: GURBAKSH SINGH

       Vs.

RESPONDENT: NIKKA SINGH

DATE OF JUDGMENT: 14/09/1962

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. IMAM, SYED JAFFER AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1963 AIR 1917            1963 SCR  Supl. (1)  55

ACT: Second  Appeal--Failure  of first appellate  court  to  give finding   on   question  of  title--Interference   by   High Court--Entry   in   revenue   records--Presumption   as   to correctness--Code of Civil Procedure, 1908 (Act 5 of  1908), s. 100--Panjab Land Revenue Act, 1887 (Punj.17 of 1887), ss. 37 and 44.

HEADNOTE: Teja  Singh  and Jhandha Singh were  co-sharers  in  certain agricultural land.  They partitioned the land taking 1 and 7 shares respectively and applied for mutation of names to the revenue authorities.  In the mutation by mistake the  entire land  was  shown  against  the  name  of  Teja  Singh.    On discovering the mistake jhandha Singh applied for correction of the entry.  During the pendency of these proceedings Teja Singh  died  and his brother and heir Mula  Singh  sold  the entire land in favour of the appellant.  Mula Singh appeared before the revenue authorities and admitted the mistake.  On this admission and on the report of an enquiry made into the matter  by  a subordinate revenue  officer  the  authorities corrected  the mistake and the correct shares of Teja  Singh and jhandha Singh were shown as 1/8 and 7/8.  The  appellant filed  a suit for declaration of his exclusive title to  the land.   The  trial court decreed the suit holding  that  the corrected mutation entry which was made on the admission  of Mula  Singh after he had already sold the property  was  not properly  made.  On appeal the first appellate court  upheld the  decree,  holding  that Gurbaksh Singh  was  a  bonafide purchaser  in good faith but without giving any  finding  on the  question  of title.  In second appeal  the  High  Court reversed the findings and dismissed the suit.  The appellant contended  that  the High Court had no jurisdiction  to  set aside concurrent findings of fact in second appeal and  that no presumption could arise in favour of the corrected entry. Held,  that the High Court was justified in  interfering  in second  appeal  as the first appellate court  had  given  no finding  on  the question of title.  The  finding  that  the appellant  was  a bonafide purchaser in good faith  was  not based  upon any evidence and the onus was on the  transferee

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to  show that the transferor was the ostensible owner.   The appellant  had full knowledge of the defect in the title  of Mula Singh. 56 Held,  further,  that  the presumption under s.  44  of  the Punjab  Land Revenue Act arose that the corrected entry  was true as the entry was made in accordance with law.   Section 37  provided that such an entry could be made in  accordance with facts proved or admitted to have occurred.  Though Mula Singh’s  admission after he had parted with the interest  in the property, could not have been relied upon, the entry was made in accordance with the facts proved before the  revenue authorities by the report of the subordinate revenue officer which  recited  the,  terms  of  the  partition  also.   The appellant   did  not  adduce  any  evidence  to  rebut   the presumption.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 128 of 1960. Appeal  by special leave from the judgment and decree  dated November  4, 1955, of the Punjab High Court in R. S. A.  No. 493 of 1950. K.   C. Sarpal, S. K. Mehta and K. L. Mehta, for appellant. Anant Ram Whig and J. B. Agarwal, for respondent No. 1. 1962.   September  14.   The  judgment  of  the  Court   was delivered by SUBBA RAO, J.-This appeal by special leave is filed  against the  judgment  and decree of the High Court  of  Punjab,  at Chandigarh,  in Second Appeal No. 493 of 1950 setting  aside the  order  of the Subordinate judge,  Amritsar,  confirming that  of  the  Revenue  Officer,  Amritsar,  decreeing   the appellant’s suit. The subject-matter of the appeal is land measuring 9  kanals and  2 marlas bearing Khasra Nos. 292 and 296 in  mauza  Kot Syed  Mahmud,in  the  District  of  Amritsar;  the  previous corresponding  Khasra  Nos. of the land were  324  and  328. This  land  formed part of a larger  area  which  originally belonged to a number of co-sharers, including Teja Singh and jhandha  Singh.   There was a partition among the  said  co- sharers and pursuant to that partition, on April 20, 1929 an application was filed before the Revenue Authorities 57 for  mutation of the names in accordance with the  terms  of the  partition; and the petition was signed by all  the  co- sharers  including  Teja Singh and jhandha  Singh.   It  was stated  in the petition, marked as Ex.D-6 in the case,  that in  respect of the said Khasra numbers one share  should  be entered  in the name of Teja Singh and 7 shares in the  name of  jhandha Singh.  This fact is not admitted.  But  in  the mutation  that  was effected on August 26, 1929  the  entire extent  of  the said Khasra numbers was shown  against  Teja ’Singh  alone.  The mutation number was 960.  On August  10, 1934,  jhandha Singh, discovering the mistake  committed  in the  revenue record, applied to the Revenue Authorities  for correcting  the  said  mistake.   The  Revenue   Authorities enquired  into the matter from August 10, 1934,  to  October 31.  1935.  The record of that enquiry discloses  that  Mula Singh,  the brother of Teja Singh-Teja Singh died  and  Mula Singh was his heir-admitted the mistake made in the  revenue record  before the concerned authorities.  That apart,  they had  before  them  a  report  of  the  enquiry  made  by   a subordinate  officer of the revenue department  tracing  the history  of  the said Khasra numbers and  ’also  giving  the

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relevant facts, namely, the partition between the co-sharers and  the  joint Application filed by them  for  mutation  of their names in respect of the plots allotted to each one  of them.   On the material so-placed before them,  the  Revenue Authorities corrected the mistake, and against mutation ,No. 1490  the  correct shares of Teja Singh and  Jhandha  Singh, namely, 1/8 and 7/8 respectively were given.  On October 24, 1934,  i.e., after jhandha ,Singh had filed the  application for  correcting the mutation No. 960, Mula Singh executed  a sale deed conveying the said land bearing Khasra numbers 324 and 328 in favour of Gurbaksh Singh, the appellant, i.e., on the  very  date  when Mula Singh had to  appear  before  the Revenue Authorities.  The appellant obtained a security bond from Mula Singh to indemnify him against any loss that might be caused to him in 58 respect  of the said property; he also paid the bulk of  the consideration  only on October 22, 1937, i.e.,  after  three years  of the sale deed. jhandha Singh in his turn sold  his 7/8 share in the said Khasra numbers, along with others,  to Gopal  Singh  from whom Nikka Singh, the  first  respondent, purchased  the said share by a sale deed dated  October  27, 1936.  The appellant filed a suit under s. 117 of the Punjab Land  Revenue  Act, 1887, out of which  the  present  appeal arises,  in  the  revenue court for  a  declaration  of  his exclusive title to the said two Khasra numbers, and in  that suit Nikka Singh, the first respondent, and Mula Singh,  the second respondent, were the defendants.  The suit has had  a chequered  career and it. is not necessary to trace it.   It would  be  enough  if  we start with  the  decision  of  the Subordinate judge dated February 14, 1949, to whose file the suit  was transferred from the file of the revenue court  by the  District judge after it was remanded by the High  Court on  an  earlier  occasion.  The  learned  Subordinate  judge expressed his opinion on the relevant issue thus:                ............   so far as the land in suit  is               concerned.,   Mula  Singh had sold it  to  the               plaintiff  on  24th  October,  1934,  and  any               admission  by  him made on 10th  August,  1936               would not affect the plaintiff.  Under Section               37 of the Land Revenue Act, a mutation can  be               based either on facts proved or admitted.   No               facts  had been proved before the Officer  who               attested mutation No. 1490, and Mula Singh was               nobody to admit any facts in relation to  land               which  he  had sold two years  before  to  the               plaintiff.    The  mutation  entry  1490   was               therefore not properly made and I decide issue               No. 11 accordingly." It  will  be seen from the aforesaid observations  that  the learned   Subordinate  Judge  based  his  finding   on   the assumption that the admission of Mula Singh 59 could  not  bind the appellant who  purchased  his  property before the said admission and that there was no the mutation entry  No.  1490.   On appeal the  learned  District  judge, though  he made certain observations indicating his line  of thought,  did not give any definite finding on the  question of  title, but he dismissed the appeal on the  finding  that the appellant was a bona fide purchaser in good faith.   The first  respondent  preferred  a second appeal  to  the  High Court.   The  High  Court held that the  correction  of  the earlier  mutation No. 960 was made with the consent of  both the  parties  and  there is a presumption  attached  to  the correctness of the later mutation and that the appellant was

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fully  cognizant of the real state of affairs, namely,  that Mula  Singh had only 1/8 share in the said  Khasra  numbers. On  those  findings, the decree of the  learned  Subordinate judge  was set aside and the plaintiff’s suit was  dismissed with costs throughout.  Hence the appeal. Learned  counsel  for  the appellant raised  before  us  the following  points:  (1) The High Court has  no  jurisdiction under ss. 100 and 101 of the Code of Civil Procedure to  set aside  concurrent  findings  arrived at  by  the  two  lower courts. (2) Under s. 37 of the Punjab Land Revenue Act there is a presumption in favour of an entry in the revenue record if  it  is  made  in accordance with  the  facts  proved  or admitted  to have occurred; but, as in the present case  the entry was corrected on the admission of Mula Singh after  he transferred  his  interest in favour of the  appellant,  the said  admission could not constitute a legal basis  for  the said  entry and therefore no presumption under that  section would attach to that entry. It is true that as early as 1931 the Privy Council held that the  High  Court had no jurisdiction to entertain  a  second appeal  on the ground of erroneous findings of fact  however gross  the  error may seem to be, and the  said  ruling  has since been followed by all the 60 courts  in India and accepted by this Court in a  number  of decisions.  But in this case the learned District judge  has not  given  any  finding  on  the  question  of  title,  but contented  himself  to dispose of the appeal on  the  ground that  the  appellant purchased the land in good  faith  from Mula  Singh.   The question of title was ,  therefore,  left open  and the High Court was certainly within its  right  in giving its own finding thereon. The  finding  given by the learned District judge  that  the appellant  was a bona fide purchaser in good faith  was  not based  on the evidence in the case, but was merely  an  ipsi dixit,  Nor did the District judge ’consider the  impact  of the  provisions of s. 41 of the Transfer of Property Act  on the  facts of the case.  Such a finding arrived  at  without evidence and without applying the correct principles of  law cannot  obviously  bind the High Court.  Section 41  of  the Transfer of Property Act reads: "’Where,  with  the  consent, express  or  implied,  of  the persons  interested in immoveable property, a person is  the ostensible owner of such property and transfers the same for consideration,  the transfer shall not. be voidable  on  the ground  that the transferor was not authorised to  make  it: provided  that the transferee, after taking reasonable  care to  ascertain  that  the transferor had power  to  make  the transfer, has acted in good faith." The  general  rule is that a person cannot confer  a  better title  than  he has.  This section is an exception  to  that rule.   Being  an exception, the onus certainly  is  on  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.  In this case the facts are tell-tale and they establish beyond doubt that the appellant had 61 the  knowledge  that  the title of  his  transferor  was  in dispute and he had taken a risk in purchasing the same.  The appellant and Mula Singh belong to the same village Kot Syed Mahmud.   Mula Singh sold his property, to the appellant  on the  very date on which he had to appear before the  Revenue Authorities.   Though the sale deed was executed on  October

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24,  1934,  the consideration was actually paid  only  three years  thereafter i.e., on October 22, 1937.  The  appellant also  took  a  security bond from Mula  Singh  to  indemnify himself against any loss that might be caused to, him in the property  in dispute.  These facts show that  the  appellant had knowledge of the defect in the title of Mula Singh.   It is, therefore, not possible to hold that he had purchased it in  good  faith.   The  High Court,  having  regard  to  the aforesaid  circumstances, held that the appellant knew  that the  transaction was in respect of a property of  which  the title  was  extremely doubtful.  There  are  no  permissible grounds  for  challenging the correctness  of  that  finding before us in an appeal under Art. 136 of the Constitution. Nor  do  we  see  any merits in  the  contention  that  ..no presumption can be drawn in favour of the correctness of the impugned entry in the revenue record on the ground that  the condition  given in the section are not satisfied.   Section 37 of the Punjab Land Revenue Act reads:               "Entries  in  records-of-rights or  in  annual               records, except entries made in annual records               by  patwaris  under clause (a) of  section  35               with  respect  to undisputed  acquisitions  of               interest  referred to in that  section,  shall               not be varied in. subsequent records otherwise               than by-               (a)  making entries in accordance  with  facts               proved or admitted to have occurred;               (b)  making such entries as are agreed  to  by               all  the  parties interested  therein  or  are                             supported 62               by a decree or order binding on those parties;               x            x           x        x Section 44 says that an entry made in a record-of-rights  in accordance with the law for the time being in force or in an annual  record  in accordance with the  provisions  of  that Chapter  and the rules thereunder, shall be presumed  to  be true until the contrary is proved or a new entry is lawfully substituted  therefor.  If the entry No.  1490  substituting entry No. 960 had been made in strict compliance with S.  37 of  the Punjab Land Revenue Act, it cannot be disputed  that there would be a presumption that the new entry was lawfully substituted for the old.  In that event the old entry should yield  to  the  new entry.  This  presumption  is  no  doubt rebuttable.   There  is force in the contention  of  learned counsel that Mula Singh, having parted with the interest  in the property, could not have admitted the correctness of the new  entry or agreed to have the old entry corrected in  the manner done so as to bind a purchaser.  But that  contention does  not avail him in the present case as we are  satisfied on a perusal of the record that mutation entry 1490 had been made in accordance with the facts proved before the  Revenue Authorities.   There were the following pieces  of  evidence before  the Revenue Authorities, among others: (1)  evidence of  Mula  Singh; (2) the report of the  subordinate  revenue officer with all the connected annexures, including Ex.   D- 6, wherein the terms of the partition were recited.  On  the said evidence the Revenue Authorities corrected the entry in the record in the manner they did.  It must, there fore,  be held  that  the provisions of s. 37(a) of  the  Punjab  Land Revenue  Act were satisfied.  If so, there is a  presumption that  the  later entry was correct.  The appellant  did  not adduce  any evidence to rebut the said presumption.  On  the other hand, Ex.  D-6, the application dated April 20,  1929, for  mutation of names in the revenue record, signed by  all

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the cosharers contained the following recital:  63               "Entries with respect to the following  Khasra               Nos. may be made in the revenue papers in  the               name  of  Teja Singh, co-sharer No. 5  to  the               tune  of one share and Bhai jhandha Singh  co-               sharer No. 2, to the tune of seven shares: 324               3.16, 328/5.06 etc. The  High Court was, therefore, right in holding that  there was a presumption in favour of the correctness of the  entry and  the  appellant  had  failed to  rebut  the  same.   The judgment  of the High Court is correct and the appeal  fails and is dismissed with costs.                                       Appeal dismissed.