WARYAM SINGH Vs. UJAGAR SINGH

JUDGEMENT

(1.) This is an appeal filed by Waryam. Singh and others, defendant-vendees, against the judgment dated 15th June, 1961, of the District Judge, Gurdaspur, dismissing their appeal with costs against the decree dated 22nd June, 1960, passed in favour of the plaintiff for possession of land comprised in Killa Nos. 11/1, 20/2, 12/1/1 of rectangle No. 6 and Killa Nos. 15/2, 16 and 25/2 of rectangle No. 7 in suit against them.

(2.) Briefly stated, the facts of this case are that Sawarn Singh, Piara Singh, and Shangara Singh, defendant Nos. 5 to 7 mortgaged their land measuring 9 Kanals 13 Marlas, fully described in para 1 of the plaint, for Rs. 600/- in favour of Ujagar Singh, on the basis of a registered deed dated 4th October, 1954. A further charge was also created by them on this land on the basis of a deed dated 4-10-1954 for Rs. 60/-. The defendant Nos. 5 to 7 mortgaged their land measuring 13 Kanals and 13 Marlas described in para No. 2 of the plaint for Rs. 800/- in favour of Ujagar Singh plaintiff on the basis of a registered deed dated 20th May, 1955. Piara Singh defendant No. 6, mortgaged his land measuring 3 Kanals 7 Marlas on the basis of a registered deed dated 17th March, 1955, for Rs. 100/- in favour of the plaintiff. It appears that consolidation of holdings took place in this village and in lieu of the aforesaid mortgaged land the land in suit measuring 21 Kanals 18 Marlas described in the heading of the plaint was allotted to defendant Nos. 5 to 7.

(3.) Exhibit P.1 dated 20th May, 1955, Exhibit P.2 dated 17th March, 1955, Exhibit P.3 dated 4th October, 1954, and, Exhibit P.4 dated 4th October, 1954, are the mortgage deeds executed by defendant Nos. 5 to 7 in favour of the plaintiff Ujagar Singh as mentioned in the earlier part of the judgment. Exhibit D. 1, dated 6th May, 1958, and Exhibit D. 2 dated 29th January, 1959, are the sale deeds executed by defendant Nos. 5 to 7 in favour of defendant Nos. 1 to 4. It is well settled that Section 41 of the Transfer of Property Act did not apply to the State of Punjab but the principles underlying it apply. The necessary conditions for the applicability of these principles contained in Section 41 of that Act, are - (1) that there should be an ostensible owner occupying such position with the consent expressed or implied of the true owner, (2) that the transferee from the ostensible owner should have taken reasonable care to ascertain that the transferor had the power to make the transfer, (3) that the transferee should have acted in good faith, and (4) that the transfer should be for consideration and without notice. After execution of the mortgage deeds, Exhibits P.1, P.2 and P.3, in his favour in the year 1954-55, Ujagar Singh plaintiff did not make any report about these mortgages to the Patwaries to make entries in the revenue records and to enter mutation orders regarding the same. The plaintiff also did not obtain possession of this land. The copy of the Khasra Girdawari, Exhibit D. 1 from Kharif, 1953 to Rabi, 1957, shows that this land continued to be in possession of the original owners mortgagor-defendant Nos. 5 to 7. Consolidation of Holdings took place in this village for about three years from 1955 to 1958. Ujagar Singh plaintiff as P.W. 4 stated that after the execution of the mortgage deeds he remained in possession of the land in suit for four years. But during the consolidation proceedings he was dispossessed of the land in suit. This contention is wrong and incorrect.