JIT SINGH Vs. PIARA

JUDGEMENT

(1.) This is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code'), challenging the judgment and decree dated 6-11-2002 passed by the learned Addl. District Judge, Kapurthala reversing the findings of facts returned by the Add. Civil Judge (Sr. Division), Sultanpur Lodhi in his judgment and decree dated 17-9-1997. The Appellate Court has held that sale deed Ex. D1 dated 11-1-1993 does not transfer any right or title to the defendant-appellant because the sale deed had been executed on 11-1-1993 by one Jagir Singh the power of attorney of the plaintiff-respondent which was cancelled on 24-11-1992. It has further been found that the plaintiff-respondent is a member of a Scheduled Caste who had purchased the suit land in a restricted auction held on 27-1-1977. According to the terms of the restricted auction, the plaintiff-respondent could not have transferred or alienated any right in the suit land for a period of 20 years to a vendee belonging to non-Scheduled caste. There has been a red ink entry in the jamabandi for the year 1988-89 which clearly stated that the suit land could have been sold only to a member of a Scheduled Caste and that too, after a period of 20 years. The learned Addl. District Judge has also referred to Rule 6(8) of the Punjab Package Deal Properties (Disposal) Rules, 1976 (for brevity 'the rules') which imposes a restriction on the right of a person who have purchased land in a restricted auction from alienating the same for a period of twenty years. The Rule further provides that the auction purchaser cannot alienate or mortgage with possession or transfer the land for a period of 20 years. These findings of facts are sought to be assailed by the defendant-appellant in the instant appeal.

(2.) Mr. Ashok Singla, learned counsel for the defendant-appellant has argued that issue No. 1 is whether sale deed dated 11-1-1993 executed by defendant-respondent 2 in favour of defendant-appellants Nos. 3 to 8 is fictitious and without consideration and whether the plaintiff-respondent 1 is entitled for declaration as prayed for'. According to the learned counsel, the sale deed was not challenged on the ground that no transfer could have taken place within a period of 20 years and that too to a non-scheduled Caste. The learned counsel has also argued that the plaintiff-respondent would not be entitled to enjoy the fruits of this litigation as he himself has committed fraud and violated Rule 6(8) of 'the Rules'. He has further argued that under Section 53-A of the Transfer of Property Act, 1882 (for brevity 'the Act'), the defendant-appellant is entitled to protect his possession under the agreement to sell as possession of the suit land was delivered to the defendant-appellant in the part-performance of the agreement to sell. The learned counsel has also argued that the period of 20 years has now passed and therefore, he is entitled to retain the possession. Another argument raised by Sh. Ashok Singla is that under Section 41 of 'the Act', the plaintiff-respondent being ostensible owner was not entitled to avoid the transfer of the land in dispute.

(3.) I have thoughtfully considered the submissions made by the learned counsel for the defendant-appellant and have reached the conclusion that this appeal is devoid of merit and the same is thus liable to be dismissed. Rule 6(8) of the Rules categorically provides that a person like the plaintiff-respondent who has purchased the land in restricted auction cannot for 20 years alienate, transfer mortgage with possession any such land or part of the land wholly or partly in any manner in favour of a person who is not a member of a Scheduled Caste. Rule 6(8) is reproduced hereunder for facility of reference :