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CASE NO.: Appeal (civil)  510-513 of 1999

PETITIONER: Kashmir Singh & Others

RESPONDENT: Panchayat Samiti, Ferozpur & Others

DATE OF JUDGMENT: 13/04/2004

BENCH: R.C. Lahoti & Ashok Bhan.

JUDGMENT: J U D G M E N T

BHAN,J.                  These appeals have been filed against a common judgment of the  Punjab and Haryana High Court, wherein the High Court has set aside the  order of the revisional authority (Commissioner, Ferozpur) and cancelled the  sale made by Tehsildar(Sales) in favour of the appellants.

The  facts of all the cases are similar and presently the facts are taken  from the appeal of Gurcharan Singh son of Mohan Singh (hereinafter  referred to as the ’appellant’).        Appellant applied for  transfer of land  measuring 24 kanals 13  marlas being 1/4th share of land measuring 98  kanals 12 marlas comprising Khasra No. 136M/7(8-0), 8(8-0), 9(8-0), 6/2(4- 4), 14(7-9), 15/1(2-3), 15/2(2-18), 17/1(4-2), 17/2(1-10), 24/2(2-12), 19(8- 0), 21/2(5-7), 22/1(6-6), 139M/1/1(5-11), 2/1(0-710/1(0-2), 136M/12(8-0),  13(8-0), 18/1(0-1), 18/2(7-3), 23/2(0-17), situated in village Khai, Tehsil  Ferozpur on the ground that he was in continuous possession of this land  since Khariff 1989.  The case recommended by the Tehsildar(Sales),  Ferozpur vide his report dated 25th March, 1994 was approved by the Sales  Commissioner, Ferozpur vide his order dated 29th March, 1994.

Panchayat Samiti, Ferozpur, respondent No.1, (hereinafter referred to  as the ’respondent’) filed an appeal in the Court of Sales Commissioner,  Ferozpur on 19th May, 1995.   The Sales Commissioner, Ferozpur vide his  order dated 6th June, 1995 returned the appeal on the ground that the Act and  Rules pertaining to transfer of land were not applicable.  Respondent then  filed an appeal before the Chief Sales Commissioner (Deputy  Commissioner), Ferozpur against the transfer of the land in favour of the  appellant.  The appellate authority after perusing the record came to the  conclusion that the appellant had taken the land on lease from Panchayat  Samiti for a sum of Rs.30,000/- in the year 1989-90 vide receipt No. 78  dated 2nd May, 1989.  Subsequent to the taking of the land on lease, the  appellant filed an application for allotment of land treating it to be in the  ownership of the State being a Package Deal Property.  The appellate  authority found that the land belonged to the District Board and on the  abolition of the District Board the land was transferred to the Panchayat  Samiti, Ferozpur.  Mutation had also been sanctioned in favour of the  Panchayat Samiti.  It was held that the land did not belong to the State of  Punjab and the transfer made in favour of the appellant was bad in law as  well as fraudulent.  Aggrieved against this order of the appellate authority  the appellant filed a revision before the Commissioner, Ferozpur Division,  which was accepted.

Aggrieved against the said order of the revisional authority,  respondent filed a writ petition which was accepted. The High Court held  that the land was not a Package Deal Property which had been transferred by  the Central Government to the State Government on payment of price.  That  the land belonged to the District Board and on the dissolution of the Board,

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the land was transferred and mutated in favour of the respondent.   Respondent was found to be the owner of the land and the sale made in  favour of the appellant was held to be invalid and without jurisdiction.   Accordingly, the order of the revisional authority was set aside and the sale  made in favour of the appellant was also set aside.

We have heard learned counsel for the parties at length.

Package deal property is the property which is transferred by the  Central Government to the State Government on payment of price.   Clause  (1-A) of Section 2 of the Punjab Package Deal Properties (Disposal) Act,  1976, defines the "package deal property" as the property which was taken  over as surplus evacuee property by the State Government.  The Schedule  attached to the aforesaid Act, gives details of the lands  which were bought  by the state Government of Punjab from the Central Government. On  transfer by the Central Government all such lands vested in the Provincial  Government under the aforesaid Act.  Counsel for the appellant fairly  conceded that the land in question does not find mention in the Schedule  attached to the aforesaid Act.  This conclusively shows that the property was  not a "package deal property" as contended by the learned counsel for the  appellant and was not in the ownership of the State Government.

The property belonged to the District Board. It has been provided  under Section 118 of the Zila Parishad Act, 1961 that on the abolition of the  District Boards, all the assets and liabilities would devolve on the Panchayat  Samitis functioning in the districts or in the Zila Parishad in such manner as  the Government may order/direct. On the abolition of the District Boards,  their properties were apportioned amongst the Zila Parishads and the  Panchayat Samitis under the order of the State Government dated 13th  February, 1962.  The property situated in village Khai (which is in dispute)  has been shown in Schedule ’H’ annexed to the order of the State  Government dated 13th February, 1962.  It has been described as ’Nazul’  property.  Thereafter on a request made by the  respondent-Panchayat  Samiti, the Deputy Commissioner, Ferozpur directed the Sub-Divisional  Officer(Civil), Ferozpur, on 9th May, 1972 to transfer the land to the  respondent.  It was made clear in the said letter that the government land  situated at village Fattuwala, Gamewala, Khai and Mamdot belonged to the  Zila Parishard and thereafter the land stood transferred to the respondent.  This also shows that the land did not belong to the State government but  belonged to the Zila Parishad/Panchayat Samiti as the successor to the  District Board and which in turn was transferred to the respondent.

Faced with this situation as a last resort, learned counsel for the  appellant contended that the appellant was bona fide purchaser for  consideration without notice and, therefore, the protection provided under  Section 41 of the Transfer of Property Act was available to him.  We do not  find any force in this submission.  Section 41 of the Transfer of Property Act  reads:

"41. Transfer by ostensible owner\027 Where, with the consent, express or implied,  of the persons interested in immovable  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  ascertin that the transferor had power to  make the transfer, has acted in good faith."

       Under section 41 of the Transfer of Property Act, transfer made by an  ostensible owner with the consent, express or implied of the real owner is

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protected provided that the transferee after taking reasonable care to  ascertain that the transferor had the power to make transfer had acted in  good faith.  Learned counsel for the appellant was unable to show from the  record that the State government had transferred the land in favour of the  appellant acting as an ostensible owner with the consent, express or implied,  given by the respondent in favour of the State Government.  Learned counsel  for the appellant was also unable to show that the appellant had taken any  care to ascertain that the State Government was either the owner or had the  power to transfer the land and that he had acted in good faith. On the  contrary, it has been brought on record that the appellant had taken the land  on lease from the respondent in the year 1989-90 which clearly demonstrates  that he knew that the respondent was the owner of the land.  Even in the  Zamabandi, exhibit P-9, wherein the State government has been shown to be  the owner,  the possession of the appellant in column No.5 has been shown  to be through the respondent-panchayat samiti.  In spite of knowing all these  facts the appellant did not take care to ascertain the title of his vendor.  In  these circumstances the appellant is not entitled to the protection provided  under section 41 of the Transfer of Property Act.

       The land was transferred to the appellant on payment of Rs.62,625/-  out of which the appellants had initially deposited a sum of Rs.3,082/- being  the 1/20th share of the prioce within 15 days in the treasury on the  presentation of the challan.  The remaining amount was to be deposited with  interest @ 10% in 19 equated installments.   Learned counsel for the parties  were unable to state as to how much amount has been paid by the appellants  to the State Government.  In the circumstances, we direct that the appellants  (in all four appeals) would be entitled to the refund of whatever amount has  been deposited by them with the State Government.  The State Government  is directed to refund the amount deposited by the appellants within a period  of three months from today.

       For the reasons stated above, we do not find any merit in these appeals  and the same are dismissed with no order as to costs.