PREM NARAIN AGGARWAL Vs. BASHESHAR DASS

JUDGEMENT

(1.) This First appeal from a decree passed by a subordinate Judge raises the question of application of Section 47 of the Code of Civil Procedure and the principle underlying Section 52 of the Transfer of Property Act, 1882 to the facts of the case. Section 47 has been on the statute book for over 60 years while its predecessor, Section 244 of the Code of 1882 which was in terms similar to the present section has been there for a little less than ninety years. The provisions of these two sections have therefore come up before the courts again and again and an enormous mass of case- law has grown around them. And yet so large is the variety of situations in which Section 47 has been considered that there is hardly a case which can be regarded as affording an exact parallel to another.

(2.) Section 52 of the Transfer of Prpoerty Act was not in force in Delhi before 1962, but the principles underlying that section were applied by courts to cases arising in the Punjab and Delhi as embodying the rules of equity and good conscience.

(3.) In the instant case the task of applying the above sections is however rendered difficult by the attitude adopted by the parties. Both sides appear to have kept back from the court as much of relevant material as they could. Luckily, however, it transpired that although certain material documents were with-held by the parties their existence could not be denied as they happened to be included in the printed records of appeals (RFA No. 267 of 1939 of the High Court of Judicature at Lahore and RFA No. 46 of 1948 of the High Court of Judicature for the Province of East Punjab at Simla), which related inter alia to the property in dispute. With the consent of the parties' counsel therefore, we had those printed records placed before us at the hearing of the appeal, and it was agreed that the relevant documents might be read in evidence.