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PETITIONER: RAM BHAWAN SINGH AND ORS.

       Vs.

RESPONDENT: JAGDISH AND ORS.

DATE OF JUDGMENT22/08/1990

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) KASLIWAL, N.M. (J)

CITATION:  1990 SCR  (3) 957        1990 SCC  (4) 309  JT 1990 (3)   704        1990 SCALE  (2)399

ACT:     Transfer  of Property Act, Section 43 Estoppel  by  deed doctrine inapplicable if the transfer is invalid.     U.P.   Consolidation  of  Holdings  Act  1954,   Section 9--Claiming  tenancy  rights--Question of  applicability  of Section 14 of the Limitation Act, 1963.

HEADNOTE:     The land in plots Nos. 6385 and 6386 had been in posses- sion  of Ram Dayal as mortgagee under Baijnath who  was  the original tenant. Respondents No. 1-3 are the descendants  of Ram Dayal. They made an application under section 9 of  U.P. Consolidation of Holdings Act, 1954 before the Consolidation Officer  claiming  tenancy rights on the basis of  the  deed dated  July  30,  1945, stating that their  names  had  been recorded in Khatauni of 1359 Fasli. They are in  cultivatory possession  and have become adhivasis and subsequently  sir- dars.  They  further contended that the appellants  have  no right of possession over the land and their names have  been wrongly entered in the Khatauni No. 1353 Fasli. The respond- ents prayed for entering their names as sirdars.     This application was allowed by the Consolidation  Offi- cer  vide order dated July 23, 1967. The Settlement  Officer (Consolidation)  reversed the order and the Deputy  Director of  Consolidation  dismissed the revision filed by  the  re- spondents.     Subsequently  the respondents filed a writ  petition  in the High Court. The High Court allowed the same and  quashed the orders of the appellate and the revisional  authorities, and maintained the order of the Consolidation Officer in its judgment dated 3rd October, 1972.     The  appellants filed a special leave on 30th  November, 1972 against the judgment of the High Court dated 3rd  Octo- ber,  1972 under letters patent. It was not maintainable  in view of the U.P. Courts (Abolition of Letters Patent  Appeal Amendment)  Ordinance,  1972 which came into force  on  30th June, 1972. Thus Writ Petition finally culminated in  favour of  the respondents by High Court order dated  3rd  October, 1972. 958     The  appellants instead of challenging the order of  the High  Court  by  way of filing any  Special  Leave  Petition

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before this Court, initiated fresh proceedings by moving  an application on 6th July, 1973 before the Settlement  Officer (Consolidation) which was rejected on 30th October, 1974.  A revision was filed against the said order before the  Deputy Director  of Consolidation which was also rejected  on  21st July,  1975. Thereafter the appellants moved the High  Court again, and the Writ Petition filed by them was dismissed  by its order dated 18th September, 1975.     Since the subject matter had been finally decided by the High  Court judgment of 3rd October, 1972 so to  start  pro- ceedings afresh was not in good faith as none of the author- ities  of  the Settlement or Consolidation  could  have  any right  or  jurisdiction to set aside the order of  the  High Court.  The  second judgment of the High  Court  dated  18th September,  1975 was challenged in C.A. No. 1003 of 1976  in this Court. Dismissing the appeal, the Court,     HELD:  Both the appeals had been filed after the  expiry of the period of limitation. The appellants had applied  for condonation of delay on the ground that they had been prose- cuting  the  prior proceedings in good faith  and  on  legal advice so the period of more than three years be excluded in computing the period of limitation under section 14 ’ of the Limitation  Act 1963. The Respondents filed counter  to  the application and opposed the same. [961D-E]     Special  leave was granted by this Court on 2nd  Septem- ber, 1976 subject to the rights of the respondents to  argue the  question of limitation and applicability of section  14 of the Limitation Act at the hearing of the appeals. [961F]     The appellants as to the question of limitation  submit- ted  that  the delay of 1198 days had  occurred  unwillingly though  they had been prosecuting with due diligence  before the  appellate authorities but there is no proper  affidavit either  of the appellants or the Counsel in support  of  the application for condonation of delay. There is also no other material  to indicate that the appellants had exercised  due diligence  in working out their remedies and  sought  proper advice  in the matter. There was no right of appeal  against the  judgment of the High Court as it quashed the orders  of the appellant and the revisional authorities so the proceed- ings  instituted  by  the party by restoring  to  the  lower authorities for fresh decision are not legal or valid. Hence the  appeals  are  liable to be dismissed  as  time  barred. [961G-H; 962A-B] 959     Even on merits, the appellants cannot succeed. Admitted- ly the original tenant was Baijnath but was dispossessed  in execution decree obtained by the landlord in 1944.  Thereaf- ter  the land was mortgaged in favour of Ram Dayal  and  the mortgagee  obtained  the decree against  the  landlord.  The respondents  subsequently entered into an agreement  setting the claims under the decree and granting patta in favour  of the  Respondents in deed dated 30th July, 1945. These  facts have been accepted by the Consolidation Officer and the deed and title were found to be in favour of the,respondents. The tenancy  in favour of Baijnath was subsisting when the  deed of  23rd  November,  1943 was executed. The  creation  of  a tenancy during the subsistence of the earlier one could  not confer  any  right and even before the deed of  2nd  August, 1945 patta was already granted in favour of the respondents. [962D-G]     Even  the contention of the appellants that they have  a case under section 43 of the Transfer of Property Act, which embodies  the  rule of estoppel by deed, is  not  applicable because  the transfer under the deed of 23rd November,  1943

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became  inoperative  because the settlement was  invalid  on account  of the subsisting lease in respect of the Land  and the  landlord could not super impose a second lease  in  re- spect  of  the tenanted property, so no  interest  could  be created  in favour of the appellants under that document  of 2nd  August,  1945 and therefore, there is  no  question  of feeding the estoppel. [963E-G]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1002  & 1003 of 1976.     From  the Judgment and Order dated 3.10.1972  and  18.9. 1975  of  the Allahabad High Court in Civil Misc.  Writ  No. 2726 of 1970 and Civil Misc Writ Petition No. 9943 of 1975.     Satish Chander, S.N. Singh, T.N. Singh and H.L.  Srivas- tava for the Appellants. J.P. Goyal, M.R. Bidsar and S.K. Jain for the Respondents. The Judgment of the Court was delivered by     FATHIMA  BEEVI,  J. These appeals by special  leave  are directed against the judgments of the High Court of  Allaha- bad. The land in plots Nos. 6385 and 6386 measuring 5 bighas and  4  biswas had been in the possession of  Ram  Dayal  as mortgagee  under Baijnath who was the original  tenant.  Re- spondents 1 to 3 are the descendants of Ram 960 Dayal. They made an application under section 9 of the  U.P. Consolidation of Holdings Act, 1954 before the Consolidation Officer.  They  claimed tenancy fights on the basis  of  the deed  dated 30.7.1945 and they stated that their  names  had been  recorded  in the Khatauni of 1359 Fasli; they  are  in cultivatory possession and have become adhivasis and  subse- quently  sirdars. They alleged that the names of the  appel- lants  herein have been wrongly entered in the  Khatauni  of 1353 Fasli and that the appellants have no right or  posses- sion  over  the land. The respondents  prayed  for  entering their  names  as sirdars and scoring off the  names  of  the appellants.     This application was allowed by the Consolidation  Offi- cer by order dated 23.7.1967. The order was reversed by  the Settlement  Officer (Consolidation). The Deputy Director  of Consolidation  dismissed the revision filed by the  respond- ents. However, the writ petition filed by the respondents as C.M.W.P.  No. 2726 of 1970 was allowed by the High Court  by its judgment dated 3.10.1972 and the orders of the appellate and  the revisional authorities were quashed  thereby  main- taining the order of consolidation Officer. Civil Appeal No. 1002  of  1976  is  directed  against  the  judgment   dated 3.10.1972 of the High Court.     The appellants had filed a Special Appeal on 30th Novem- ber,  1972  against the judgment dated 3.10.1972  of  Single Judge of the High Court in C.M.W.P. No. 2726 of 1970. Howev- er, the said Letters Patent Appeal was not maintainable  and ultimately dismissed in view of the U.P. High Courts (Aboli- tion  of  Letters Patent Appeal Amendment)  Ordinance,  1972 which came into force on 30th June, 1972. This completes the narration of the fate of the writ petition No. 2726 of  1970 which  finally  culminated in favour of the  respondents  by order dated 3.10.72.     The  appellants did not challenge the order of the  High Court  dated 3.10.72 by taking any further steps  of  filing any  special leave petition before this Court. On  the  con- trary,  on  some mistaken and totally wrong advice  of  some counsel the appellants again initiated fresh proceedings  by

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moving an application on 6.7.73 before the Settlement  Offi- cer   Consolidation.  That  application  was   rejected   on 30.10.74. A revision was filed against that order before the Deputy Director of Consolidation which was also rejected  by order   dated  21.7.75.  Thereafter  the  appellants   filed C.M.W.P.  No. 9943 of 1975 before the High Court  on  7.8.75 against the order of the Deputy Director Consolidation. This writ petition came to be dismissed by 961 order  dated 18.9. 1975. This judgment of the High Court  is challenged  in Civil Appeal No. 1003 of 1976. When the  High Court  in the earlier Writ Petition No. 2726 of 1970 on  the same subject matter had finally decided the matter in favour of  the respondents by order dated 3.10. 1972, there was  no question  of giving any advice by any counsel in good  faith to  start proceedings afresh by moving a  fresh  application before the Consolidation authorities. No counsel could  have given such advice in good faith to start proceedings  afresh before  the  Consolidation  authorities and  then  to  claim benefit  of such period under section 14 of  the  Limitation Act. It was elementary for any counsel of whatever  standing to have known that none of the authorities of the Settlement or  Consolidation department could have any right or  juris- diction  to  set  aside the order of the  High  Court  dated 3.10.1972.  The Settlement Officer (Consolidation)  as  such was  justified  in dismissing the application by  his  order dated 30.10. 1974, and thereafter the revision by the Deputy Director  (Consolidation)  by order dated  21.7.  1975.  The appellants  then under the same mistaken advice not in  good faith  filed  C.M.W.P.  No. 9943 of 1975 which  came  to  be dismissed by the High Court on 18.9. 1975. The second  judg- ment of the High Court is now challenged in Civil Appeal No. 1003 of 1976.     Both the appeals had been filed after the expiry of  the period of limitation. The appellants had applied for  condo- nation  of delay on the ground that the appellants had  been prosecuting  the  prior proceedings in good faith  on  legal advice  and  the period of more than three  years  taken  in prosecuting  the  proceedings is liable to  be  excluded  in computing  the period of limitation under the  provision  of section 14 of the Limitation Act, 1963. The respondents  had filed counter to the application and opposed the same.     This  Court granted special leave vide order dated  2.9. 1976 in both matters subject to the right of the respondents to argue the question of limitation and the applicability of section  14  of  the Limitation Act at the  hearing  of  the appeals.     The  first  question that we have to decide is  that  of limitation.  The delay of 1198 days according to the  appel- lants  had occurred unwillingly and the appellants had  been prosecuting  with  due  diligence  the  earlier  proceedings before  the appellate and the revisional authorities and  on the basis of the advice given by their counsel. There is  no proper affidavit of either the appellants or the counsel  in support  of the application for condonation of delay.  There is  also no other material to indicate that  the  appellants had exercised due diligence in work- 962 ing  out  their  remedies and sought proper  advice  in  the matter. When the party had no right of appeal, the  proceed- ings instituted before the High Court challenging the  judg- ment in the writ petition cannot be considered to be one  in good faith. The subsequent proceedings are also not legal or valid.  When  the  decision of the High Court  in  the  writ petition  was one quashing the orders of the  appellate  and

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the  revisional authorities, the party could not proceed  on the basis that the matter was restored to the lower authori- ties for fresh decision. We are therefore not satisfied that there is any merit in the ground urged by the appellants for getting  over the bar of limitation. The appeals are  liable to be dismissed as time barred.     We  find that even on the merits, the appellants  cannot succeed.  The respondents based their claim on the patta  in their favour under the deed of 30.7.1945. The  Consolidation Officer accepted the genuineness of the deed and found title with the respondents. The appellants had claimed right under the  subsequent document of 2.8. 1945 in continuation of  an earlier deed of 23.11. 1943. The land was admittedly in  the possession  of  Baijnath,  the original tenant  and  he  was dispossessed  in  execution of the decree  obtained  by  the landlord  in  1944. The tenancy in favour  of  Baijnath  was subsisting  when the deed of 23.11. 1943 was  executed.  The creation of a tenancy during the subsistence of the  earlier one could not confer any right. Before the deed of 2.8. 1945 patta was already granted in favour of the respondents.  The circumstances under which the same was granted also  weighed in finding title in favour of the respondents. The  landlord had  obtained  a decree against Baijnath when the  land  was mortgaged  in  favour of Ram Dayal. The mortgagee  later  on obtained  the decree against the landlord for an  amount  of Rs.214  being the value of the crops in the land. An  agree- ment was subsequently entered into between the landlord  and the  respondents  settling the claim under  the  decree  and granting  patta  in favour of the respondents.  These  facts have been found in favour of the respondents by the Consoli- dation Officer. The High Court in quashing the orders of the appellate and the revisional authorities was of opinion that there  was  apparent error on the face of  the  record.  The appellate authority was found to be wrong in its  conclusion that  the  respondents  lost their right  by  the  continued possession  of the appellants. The High Court  noticed  that even  before the Consolidation Officer, the  appellants  did not press their claim on the basis of the patta of 1943  and has  also found that the deed of 23.11.1943 was not a  valid settlement inasmuch as the land was in the possession of the sitting tenant. It was also noticed that soon after the deed of 2.8.1945, dispute arose regarding possession, that the 963 appellants had been dispossessed on the basis of the  decree obtained  by  the respondents setting aside the order  of  a criminal  court.  Before  the decree  became  final  pending litigation,  the  U.P.  Zamindari Abolition  Act  came  into force.  In view of the subsequent legislation, the  respond- ents have proceeded under the U.P. Consolidation Act and the proceedings culminated in the present appeals.     In  the light of the definite findings of the  competent authority  that the respondents have derived valid title  as tenants  under the deed of 30.7. 1945 and the apparent  mis- take in the proceedings of the appellate and the  revisional authorities  as found by the High Court, it is not now  open to the appellants to contend that they are rightful  tenants entitled  to possession of the land. Though the claim  based on deed of 23.11.1943 had not been pressed before the  lower authorities, it has been contended before us that the appel- lants  have a case on the principle contained in section  43 of the Transfer of Property Act. The learned counsel for the appellants  maintained that even if the deed of 23.11.  1943 was  inoperative  or was not valid for the reason  that  the landlord had no possession since they obtained possession on 30.6.1944,  the appellants acquired tenancy right  and  that

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has  been confirmed by the deed of 2.8. 1945. The  argument, though attractive, is not acceptable.     Section 43 of the Transfer of Property Act embodies  the rule of estoppel by deed. The section enables the transferee to whom a transfer is made on fraudulent or erroneous repre- sentation  to lay hold at his option of any  interest  which the  transferor  may subsequently acquire  in  the  property provided by doing so he does not adversely affect the  right of  any subsequent purchaser for value without notice.  Thus when  a lessor erroneously represents that he is  authorised to lease a property and creates a lease of it and afterwards acquires  that property, the lessee is entitled to have  the property from the lessor. This principle has no  application if  the transfer is invalid. The transfer under the deed  of 23.11. 1943 became inoperative not on account of any fraudu- lent or erroneous representation. The settlement was invalid and  inoperative on account of the subsisting lease  in  re- spect of the land and as the landlord could not super impose a  second  lease  in respect of the  tenanted  property,  no interest could be created in favour of the appellants  under that document and, therefore, there is no question of  feed- ing the estoppel. The execution of the deed dated 30.7. 1945 in  favour  of the respondents negatives the  claim  of  the appellants having acquired any right after the property  was taken  delivery of in 1944. We therefore reject the  conten- tion. 964     We  accordingly  hold that there is no valid  ground  to interfere with the decision of the High Court. We  therefore dismiss  the appeals. In the facts and circumstances of  the case, we direct the parties to bear their respective costs. S.B.                                 Appeals dismissed. 965