RAJENDRA PAL Vs. BOARD OF REVENUE

JUDGEMENT

(1.) HEARD learned counsel for the parties. Veerpal, Chhaila and Lakhmi were co- tenure holders of several agricultural plots. They filed a suit for partition. Preliminary decree was passed declaring share of each to be 1/3rd. Thereafter, final decree was prepared in terms of compromise which was verified on 20.01.1981 and final decree was actually prepared on 13.01.1982. Separate plots were allotted to each of the three original co-tenure holders. Some of them sold the plots which had come in their exclusive share (or parts thereof). Thereafter through another compromise these three persons got the final decree earlier prepared set aside and fresh compromise decree passed readjusting the plots in such a manner that plots or parts thereof already sold by one party were reallotted to another party. Trough my aforesaid judgment which is sought to be recalled/modified, I set aside the subsequent compromise partition decree and set aside the orders dated 25.11.1982, 21.06.1984 and 05.10.1984 passed by S.D.O. including the order of Board of Revenue which had approved the said orders. The effect of my judgment dated 07.03.2008 was that earlier final decree stood revived. Now, this recall application has been filed stating therein that the applicants had purchased some plots after the second compromise and final decree, hence their interest must be protected. Transfer in favour of the applicants in this recall application is protected by Section 41 Transfer of Property Act which is quoted below: "Transfer by ostensible owner - Where, with the consent, express of 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 ascertain that the transferor had power to make the transfer, has acted in good faith. Even though subsequent compromise final decree was illegal, however, on the basis of that revenue entries had been corrected and the applicants purchased the plots (or portion thereof) from the persons in whose name revenue entries were standing in consequence of subsequent compromise partition decree. Accordingly sale deeds in favor of the applicants are perfectly valid. It is also important to note that there does not appear to be any clash of interest between the three original joint tenure holders as they all are represented by the same counsel. The sale consideration paid by the applicants in this recall application to the vendors who were the recorded tenure holder shall be paid by that recorded tenure holder to the person to whom the sold plot or part thereof had been allotted in the first compromise final decree dated 20.01.1981/13.01.1982. However, as the litigation between the original tenure holders and some other purchasers was going on since 1985 hence the applicants in this recall application should have got themselves impleaded in the litigation earlier. For the delay they are liable to pay reasonable cost/damages. Accordingly it is directed that out of the amount of Rs. 1,00,000/- deposited by them before registrar of this Court under earlier interim order passed in this recall application, Rs. 70,000/- must be returned to the applicants and rest of the amount of Rs. 30,000/- shall be paid in equal share to Veerpal, Chhaila and Lakhmi (or their heirs). Application is accordingly, disposed of.