Judgment:
A.S. Nehra, J.
1. The defendants-appellants have filed this appeal against the judgment and decree dated 10-1-1979 passed by the District Judge, Faridkot. by which the appeal filed by the plaintiff respondent was allowed, the judgment and decree dated 17-1-1978 passed by the trial court was set aside and the suit for possession, filed by the plaintiff-respondent, was decreed.
2. The plaintiff respondent filed a suit for possession of land measuring 14 Kanals 7 Marias, alleging that he is a Harijan and purchased the suit land on 19-3-1964 at a public auction from the custodian (Evacuee Property) for a sum of Rs. 1400/- that he deposited the said amount in the State Bank of India, Moga, on 24-3-1964; that a sale certificate was issued in his favour; that he was declared and accepted as purchaser/owner of the said property with effect from 6-5 1964; that, in the year 1968, the suit land was wrongly allotted to Jawala Singh, being a displaced person, to which the plaintiff objected; that, considering the objection of the plaintiff, the allotment of the suit land in favour of Jawala Singh was cancelled; that the defendants, during the period of illegal allotment of the suit land to Jawala Singh, had taken illegal possession of the suit land; and that the defendants refused to admit the claim of the plaintiff when they were asked to do so; and that, therefore, a decree for possession of the suit land be passed in favour of the plaintiff and against the defendants.
3. Defendants Nos. 1 and 2, in their written statement, contended that Jawala Singh had died long before the institution of the suit and the suit against them was not maintainable; that the heirs of Jawala Singh and the Union of India are the necessary parties; that, in the year 1964 when the auction is alleged to have been taken place, the suit land was not an evacuee property; that it is wrong and denied that the plaintiff purchased the suit land through auction; that no sale certificate was issued in favour of the plaintiff; that the suit land was rightly allotted to Jawala Singh; that Surjeet Singh, son of Jawala Singh deceased, succeeded the latter; that Surjeet Singh sold the land in dispute, in favour of defendants Nos. 1 and 2 for a sum of Rs. 5500/-, vide sale deed dated 15.6.1968; that they are bona fide purchasers for valuable consideration; that they purchased the land after making due enquiries that, in the revenue record, mutation and transfer of the land was duly sanctioned and incorporated; that the mutation of inheritance of Jawala Singh in favour of Surjit Singh was also sanctioned; that the plaintiff never asserted his right over the Land, in dispute, and remained a silent spectator from 1964 to 1975; that the plaintiff never tried to take possession of the land, in dispute and never moved his little finger in assertion of his own rights; that Mahla Singh, Gurnam Singh and Jhanda Singh filed a suit for possession by way of pre-emption regarding the land, in dispute, after the sale in favour of the defendants; that suit was contested and it was dismissed by the Sub Judge, Moga, on 25.5.1970; that an appeal against the said judgment was also dismissed on 30.10.1971; that the plaintiff was also aware of these proceedings and never asserted his right even then; that the defendants issued a notice under section 80 of the Code of Civil Procedure to the Union of India, challenging the validity of the alleged allotment in favour of the plaintiff; that, in the said notice, the plaintiff was also arrayed as a party; that the plaintiff never raised any objection in reply to the said notice; that the plaintiff is estopped, by his act and conduct, from filing the suit; that the suit land was Banjar in the beginning and was reclaimed by the defendants and they spent a sum of Rs 2000/- for that purpose; and that, therefore, the defendants are entitled to recover the amount on account of improvements on the suit land, besides the sale price.
4. On the pleadings of the parties, the following issues were framed :-
1. Whether the heirs of Jawala Singh and Union of India are necessary parties to the suit ?
2. Whether the plaintiff is the owner of the suit property ?
3. Whether the defendants are bona fide purchasers for valuable consideration without notice If so, its effect ?
4. Whether the plaintiff is estopped from riling his suit by his act and conduct ?
5. Whether the defendants have made any improvement on the suit land If so, of what value and to what effect ?
6. Whether the value of the suit for the purposes of Court-fee and jurisdiction is correct ?
7. Relief
5. Subsequently on 13.10.1977, the following additional issue was framed :-
6-A. Whether Jawala Singh has died If so, when and to what effect ?
6. The trial Court held that the heirs of Jawala Singh and the Union of India are not necessary parties. Issue No. 2 was decided in favour of the plaintiff and it was held that the plaintiff is the owner of the suit land. Issue No. 3 was decided in favour of the defendants-appellants and it was held that the defendants-appellants are bona fide purchasers for consideration without notice of the suit property and, therefore, they are not liable to be dispossessed from the suit land. Issue No. 4 was decided against the plaintiff-respondent and it was held that the plaintiff is estopped from tiling the suit by his act and conduct. Issues Nos. 5 and 6 were decided in favour of the plaintiff-respondent. Under issue No. 6-A, it was held that Jawala Singh had died on 6.10.1949 and, on. the death of Jawala Singh, his son Surjit Singh became owner of the properly left by him. In view of the above mentioned findings, the trial Court dismissed the suit of the plaintiff-respondent on 17-1-1978 The plaintiff-respondent filed an appeal which was allowed by the District Judge, Faridkot, and the findings on issues Nos. 3, 4 and 6-A were set aside.
7. The learned counsel for the appellants has challenged the findings of the lower appellate Court and has referred to paragraph 17 of Chapter VIII of the Land Resettlement Manual, 1952, which reads as under :-
'17. Even where a displaced landholder in whose name land stands in the records received from West Punjab has died, the allotment is made in the name of the deceased. In the fard taqsim, therefore, the entry will be in the name of the deceased landholder. Possession is ordinarily given to the heirs but there must be regular mutation proceedings before the entry in column 3 of the fard taqsim is altered in favour of the heirs.'
The learned counsel for the appellants has further submitted that the findings of the lower appellate Court to the effect that the allotment in favour of Jawala Singh deceased in the year 1968 would be meaningless and no allotment could be made in favour of a dead person, is against the law; that the allotment made in favovr of Jawala Singh is according to paragraph 17 of Chapter VIII of the Land Resettlement Manual 1952, and, therefore, the same is not a nullity; that the allotment in favour of Jawala Singh was made in accordance with law and, therefore, Surjit Singn has rightly inherited the suit land from his father Jawala Singh; add that, as Surjit Singh has inherited the suit land from his father, therefore, he was entitled to transfer the land in favour of the defendants-appellants.
8. To prove issue No. 3, the defendants-appellants have produced in evidence sale-deed Exhibit D-1 executed by Surjit Singh son of Jawala Singh on 15- 6-1968, showing the sale of the said property in favour of defendants-appellants. The execution of this sale deed by Surjit Singh in favour of the appellants has been proved by Surinder Kumar DW-1, scribe of the said sale-deed, Hari Singh DW-4, Hari Singh DW-2 has stated that Surjit Singh had executed the said sale-deed in favour of the defendants-appellants for a consideration of Rs. 5500/-. Harnek Singh DW-4 has also made a similar statement. Further, Chanan Singh DW-3 is an attesting witness of the receipt Exhibit D-2 and Chanan Singh and Harnek Singh, DWs, have stated that a sum of Rs. 1000/- was paid to Surjit Singh by the appellants through the said receipt The documents, Exhibits D-1 and D-2, coupled with the oral evidence produced by the defendants-appellants, mentioned above, have proved that the appellants had purchased the suit land for a consideration of Rs. 5500/-.
9. As to the question whether the appellants are bona fide purchasers or not, it is proved from the evidence on the file that the plaintiff-respondent, after purchase of the suit land, did not get any mutation in respect of the suit land sanctioned in his favour. He also did not get possession of the suit property. In his statement as PW-2 the plaintiff-respondent stated that the suit land remained in possession of one Jhanda Singh but he did not know as to who got possession of the suit property thereafter. The copy of the mutation order (Exhibit DX) shows that the suit land was mutated in the name of Jawala Singh after allotment to him and thereafter it was mutated in the name of his son Surjit Singh. The copy of mutation order (Exhibit DY) shows that the suit land was mutated in the names of the appellants on 10.9.1969. Effect to this mutation order was given in the jamabandi for the year 1969-70. Exhibit P-1 shows the suit land to be owned and possessed by the appellants. The land, in dispute, having been entered in the name of Jawala Singh, and then in the name of Surjit Singh after allotment to Jawala Singh, and Surjit Singh being in possession of the suit property, there was nothing for the appellants to enquire about the title of the plaintiff-respondent or anybody else in the suit land, There is no evidence on the file that the plaintiff-respondent had given any notice to the appellants about his ownership of the suit land before the sale was effected by Surjit Singh in favour of the appellants.
10. It has been further argued by the learned counsel for the appellants that the lower appellate Court has wrongly held that the allotment in favour of Jawala Singh was subsequently cancelled and that this finding of the lower appellate Court is against the evidence on the record. He has further submitted that the trial Court after going through the evidence, has given a finding of fact in paragraph 14 of its judgment that there is no evidence on the file as to the cancellation of allotment in favour of Jawala Singh.
11. In view of the above-mentioned discussion, the finding of the lower appellate Court on issue No. 3 is set aside and it is held that the appellants are bona fide purchasers for consideration without notice of the suit property and, therefore, they are not liable to be dispossessed from the suit land.
12. The learned counsel for the appellants has further contended that, according to the plaintiff-respondent, he purchased the suit property in the year 1964 but he never took possession of the suit property and never asserted his right over the suit property. Further, according to the learned counsel for the appellants, on allotment of the land in favour of Jawala Singh, mutation was sanctioned in his favoar and subsequently it was sanctioned in favour of his son Surjit Singh and Surjit Singh sold the suit land to the appellants who have been in possession of the suit land since its purchase. The learned counsel for the appellants has contended that the conduct of the plaintiff-respondent in sleeping over the matter for about 11 years from the date of the alleged sale in his favour to the date of institution of the suit in the year 1975, estops him from filing the suit. Under Section 115 of the Evidence Act, when some person, by his declaration, act or ommission intentionally causes or permits another person to believe a thing to be true and to act upon such belief, neither he nor his representative is to be allowed in any suit or proceedings between himself and such person or his representative to deny the truth of that thing. In the case in hand, the plaintiff-respondent did not get the mutation sanctioned in his favour after its allotment to him right from 1964. The conduct of the plaintiff-respondent was responsible for the defendants-appellants in believing that Surjit Singh was the owner of the suit property. Therefore, the plaintiff-respondent is estopped from filing the suit.
In view of the above-mentioned discussion, the finding of the lower appellate Court on issue No. 4 is set aside and that of the trial Court is restored. The finding of the lower appellate Court on issue No. 6-A is also wrong. Jawala Singh died on 6-10-1949, vide death certificate Exhibit P-3 and an entry in the mutation order Exhibit DX was made on 25-9-1951 to the effect that Jawala Singh had died. This evidence proves that Jawala Singh had died on 6-10-1949. Its effect was that, on the death of Jawala Singh, his son Surjeet Singh became the owner of the property left by him. Therefore, the finding of the lower appellate Court on issue No. 6-A is set aside and it is held that, on the death of Jawala Singh, his son Surjit Singh became the owner of the property left by him.
In view of my findings on issues Nos. 3, 4 and 6-A, this appeal is allowed, the judgment and decree passed by the lower appellate Court on 10-1-1979 is set aside and, the suit filed by the plaintiff-respondent is dismissed.