Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
First Appeal No. 290 of 1942, decided on 18th May 1953, from the decree of Maharaj Kishore, Senior Civil Judge, Shahpur at Sargodha, dated the 23rd July 1942.
S. 40‑-Notice-- Want of‑-Onus on purchaser‑-Crown Grants Act (XV of 1895), Ss. 2 and 3.
Cases decided under section 8 of the Transfer of Property Act show that a person has notice if it was his duty to make an. enquiry or if there was something to put him on an enquiry which if he pursued he would have learnt truth.
The onus of proving want of notice is on the transferee.
Section 40 of the Transfer of Property Act enacts that obligations annexed to the ownership of property are enforceable against every transferee except bona fide transferee for consider ation without notice of the obligation. The provision is in terms very similar to section 27 (b) of the Specific Relief Act which makes contracts specifically enforceable against a transferee except a bona fide transferee for value without notice.
Bhup Narain Singh v. Gokal Chand Mahton and others A I R 1934 P C 68.
Where, however, the transfer is governed by the Crown Grants Act, according to sections 2 and 3 of that Act, the grant takes effect according to its tenor.
Bashir Ahmad and Ghulam Abbas Jaffrey for Appellant.
Abdul Aziz Khan, Advocate‑General for Respondent.
One Malik Gulsher Khan, the predecessor‑in -interest of Sulaiman Khan, the sole defendant in the suit out of which the two appeals which are to be disposed ,of by this judgment arise, purchased from the Punjab (government in 1908, a garden site situate in Chak No. 50 Shumali, Tehsil Sargodha, measuring 50 kanals and 15 marlas (the area is now 51 kanals on a re-measurement). In 1929, the sons of Malik Gulsher Khan, who had died in the meantime, sold the land by two transactions to the defendant. The defendant constructed buildings on 8 kanals out of this land during the period from 1930 to 1936.
On 31st of January 1942, the Punjab Government filed this suit against Sulaiman Khan, for possession of the whole of the land on the ground that the sale by Government to Gulsher Khar was subject inter alia to the conditions that he will not transfer the land without permission of the Deputy Commissioner till a sale deed had been executed in hip Favour (which has not yet been executed j. and that he will maintain the land as a garden and not build upon it without similar permission, which conditions had been violated. It was alleged that breach of either of these condition gave the Government a right of re‑entry. In the alternative, it was prayed that (if right to possession be negatived) a decree be passed for demolition of buildings already raised and for a permanent injunction to the defendant not to construct any residential houses or shops on the lands in dispute and to refrain from using the land for any purpose other than a garden. The learned Senior Subordinate Judge, who tried the suit, found that the two conditions mentioned above were part of the agreement between Malik Gulsher Khan and the plaintiff and were binding on the defendant, and that breaches thereof had been committed. He found further that there was no basis for the relief of posses sion and with respect to the alternative relief, while granting a permanent injunction that the defendant shall not construct residential houses and shops and will refrain from using the site for any purpose other than that of a garden, he refused the mandatory injunction for demolition of the buildings already constructed on the ground of the laches of the plaintiff and constituted therefore a decree for Rs. 5,000 as damages. Both parties have appealed. In Regular First Appeal No. 290 of 1942, Sulaiman Khan prays for dismissal of the suit in toto. In Regular First Appeal No. 12 of 1943, the Punjab Government though not asking for possession, prays for a demolition of the buildings. This judgment will dispose of both these appeals.
In Sulaiman Khan's appeal, Mr. Bashir Ahmad, who appears for him, has argued the following points:‑
(1) Gulsher Khan was not governed by any conditions restraining the use of the land for a garden site and prohibiting construction of residential buildings on it except with permission of the Deputy Commissioner.
(2) Even if such a condition existed, Sulaiman Khan, a bona fide transferee for value without notice, is not bound by it.
(3) Circumstances have now changed and the condition is not applicable.
(4) The Punjab Government has waived the condition.
Before starting with a consideration of these points, we will review the relevant facts. In 1904, Mr. W.M. Hailey, Colonization Officer, Sargodha, asked the Punjab Government for permission to sell 80 killas of land near Sargodha town at a fixed price for garden sites for the reason that the existence of gardens would add to the attractions of Sargodha as a residential centre. He made it clear in the letter that the land would be granted on conditions which provide (reference was made to conditions already existing) that no residences shall be built thereon without permission. The Government accorded the requisite sanction and later on. at the request of Mr, Halley, increased the area to 150 killas. The letter granting sanction said that the plots would be sold "on the usual auction condition, regarding erection of residence." Conditions for sale of garden sites at Sargodha bad already been fixed by Punjab Government in its letter No. 1471 dated 5th of December 1904, printed at pages 136 to 139 of Supplement No. 111,1933 of the Punjab Colony Manual, Lower Jhelum Colony. The plots for which sanction had been granted began to be sold, and the procedure observed was that every purchaser was required to execute an agreement called Form B, as a schedule to which were printed the conditions contained in the above‑Mentioned letter. Malik Gulsher Khan, the predecessor‑in‑interest of the defendent, applied on 28th of November 1907, for grant of a garden site and stated in the application that he would abide by the conditions on which the other persons bad been granted land. The applica tion of Gulsher Khan was accepted and on 7th of July 1908, an order was passed by the Colony Officer allotting a garden site to Gulsher Khan on the "usual conditions". On 29th of July 1908, Gulsher Khan received possession of the site and wrote out a receipt of possession which states, I have taken possession of the land measuring 50 kanals and 15 marlas in Sargodha near Bagh Padri Sahib for the purpose of a garden." An entry was made in the register of allotments which shows that garden site No. 24 had been sold to Malik Gulsher Khan and mutation was sanc tioned in his favour on 24th of April 1910. Gulsher Khan died on 3rd of August 1913 and on 10th of September 1918, mutation of land was sanctioned in the name of his sons Sher Ahmad Khan, Fateh Sher Khan and Muzaffar Khan. On 16th of February, 1929, two‑third of the whole land, i.e, the share of Muzaffar Khan and Fateh Sher Khan was sold to Sulaiman Khan defendant by a registered deed for Rs. 11,000 a mutation in respect of which was sanctioned on 19th of April 1929. On 18th of August 1929, the remaining rd share was orally sold to Sulaiman Khan and a mutation was sanctioned on 27th of September 1929.
Till the purchase by Sulaiman Khan the land was being used for a garden only. By an application dated 18th of July 1929, Sulaiman Khan applied to the Municipal Committee, Sargodha, for construction of mall quarters etc. and a mosque on the land, (Exh. P. 146). The application was forwarded to the Colony Assistant who inspected the spot in the presence of Suleman Khan and on 7th of August 1929. reported that there was no need for the garden having a new mali quarter as a katcha kotha already existed. Ths Deputy Commissioner rejected the applica tion for building and the applicant was formally informed on 14th of August 1929. On the other band, the Municipal Committee, by a resolution dated 24th of September 1929, sanctioned the building on the ground that it was‑not concerned with the objec tion of the Deputy Commissioner. The Deputy Commissioner, however, took a serious view of the matter and ordered that a warning be administered to Sulaiman Khan that if he constructed any building he would do so at his own risk. Sulaiman Khan was, as would appear from the report of the Colony Head Clerk (Exh. P. 64) dated 18th of December 1929, called for and examined and he said that he was well aware of the Colony rules and that he had no intention to commit a breach thereof. It is a pity as remarked by the learned Senior Subordinate Judge in his judg ment, that this statement which is referred to in the report (Exh P. 64), as at flag A', has disappeared. Sulaiman Khan, instead of constructing in accordance with the sanction granted by the Municipal Committee, put in a new application on 14th of May 1930, asking for building of mali quarters, the reason stated in the application being that the katcha kotha already existing had been demolished and, therefore new mall quarters were needed. This time the Special Assistant to the Deputy Commissioner reported that the buildings applied for did not exceed the require ments for garden and the defendant was granted permission to build on two marlas of land by the Deputy Commissioner. In accordance with this permission, on 10th of December 1930, the Municipal Committee by a resolution No. 473 sanctioned the con struction on two marlas of land. The previous permission of the Municipal Committee, it may be observed, had already lapsed. Sulaiman Khan not only built the mall quarters but constructed other buildings without permission at which a report was made against him by the Secretary of the Municipal Committee that a prosecution be launched but the Municipal Committee by its reso lution No. 301 dated 11th of September 1931, refused to launch a prosecution and instead sanctioned the unauthorised construction. The Colony Assistant again took up the matter. He ordered the defendant to appear and explain why he had built without permis sion. Sulaiman Khan said he had built only for mall etc., and that he would not use the building for any other purpose. The Colony Assistant got the plan of the buildings prepared which were found to exist on 3 kanals and 10 marlas. Sulaiman Khan was called upon to explain and the spot was inspected. The officers were not quite sure as to what kind of action could be taken against Sulaiman Khan. These proceedings lingered on till 1935 when the Deputy Commissioner gave a notice of arbitration under clause 7 of the conditions of sale. Sulaiman Khan. replied that in fact he had only rebuilt what existed before and the construction was only meant for mall and tenants and no conditions had been violated. In August 1935, it was reported that he had begun a new construc tion and it is common ground that in 1935‑36 he raised the rest of the construction so that the total area now covered by buildings is 8 kanals. They are without permission either of the Municipal Committee or that of the Deputy Commissioner and are mainly residential buildings. What happened afterwards between the Deputy Commissioner and the Government till 31st of January 1942, when the. present suit was lodged, is not clear. Learned Advocate‑General says Government can move slowly and there was a number of questions to consider before action was taken.
With respect to the first point it is urged by Mr. Bashir Ahmad that it is not proved, in the first instance, that Gulsher Khan was bound by conditions of sale of garden site contained in the Punjab Government letter dated 5th of December, 1904, already referred to. But Gulsher Khan had asked in his appli cation for grant of a garden site, that he be granted the land on the same conditions on which such land was being granted to other people. He had particularly mentioned Jaimal Singh and Padri Sahib as persons who had been granted land. Considering that it was Government land, the conditions of sale of which bad been settled already by a letter and which was being granted and could nave been granted to people only on such conditions, there can be no difficulty in holding even without further material that the conditions referred to in Gulsher Khan's application were the same as were referred to in the letter of 5th of December 1904. The plaintiff, has however, gone a step further and has actually produced the conditions on which land had been granted already is the same Chak to Jaimal Singh. Jaimal Singh had executed the. agreement (Exh. P. 47) and the conditions incorporated in this agreement are a copy of those mentioned in the letter of 5th of December 1'904. We hold, therefore, that Gulsher Khan was bound by the conditions incorporated in Exh. P. 47 and letter No. 1471 dated 5th of December 1904.
In order to appreciate the next argument of Mr. Bashir Ahmad it is proper to quote the conditions in extenso. They are:‑
"(1) Land shall be sold subject to preservation of rights of passage, flow of water and other rights of easement, if there be any attached to that land, and also subjected to all such condi tions as may be notified by the Colonization Officer, Jhelum Canal, at the time of sale under section 2, Act XXIII of 1863.
(2) Land shall be sold with all proprietary rights but the following restrictions shall be strictly observed:‑
(a) All mines, minerals, coal, gold and kerosene oil, in the land shall be excepted from proprietary rights. The Govern ment shall be considered their owner. It shall be competent to enter the land at any time it like and make arrangements for excavation and removal of minerals, coal, gold and kerosene oil. It is not necessary that pillars should be set up to support the outer surface or the building standing thereon. But the Government shall pay a reasonable compensation to the purchaser, his heirs, legal representatives or assignees, for such losses as are caused by exercise of the rights pertaining to minerals.
(b) Revenue to which the land is assessed from time to time, as well as all taxes in general. Muafi tax, canal water‑rate or cesses which are charged for a revenue paying land shall have to be paid.
(c) Water‑rate shall be charged according to the rate in force at the Jhelum Canal. But revenue, water‑rate or other dues shall not be charged for the first two crops after the date of purchase.
(d) Water‑courses have been shown on the plan. But the competent authority shall be authorised t9 construct a new water‑course or change the site of any existing water‑course. The purchaser shall not be entitled to any compensation as a result of such alterations except when a loss is caused to his standing crop.
(e) It shall be the duty of each purchaser to construct a bridge or bridges, construction whereof is ordered by the Deputy Commissioner over a water‑course at points where it intercepts a village or District Road or a Zamindari Road, or bear post of construction thereof. The Deputy Commissioner shall be competent to have such bridges of the sanctioned type construct ed by a purchaser if he deems proper, or get them constructed himself and recover the cost from the persons concerned. His order as to what amount of cost each purchaser should pay shall be final.
(f) If a dispute arises between a purchaser and the Govern ment over their rights or things preserved under these conditions or over such matters as pertain to those rights or things, or over any one of the aforesaid conditions, the same shall be referred to the Financial Commissioner for arbitration. His decision shall be final between the parties and binding on them. Sale of land shall be subject to the following additional restrictions:‑
(3) So long as purchaser does not put in a sale‑deed, referred to hereinafter, he shall not be competent to transfer any portion of the land purchased by him, without the written permission of the Deputy Commissioner.
(4) It shall also form part of the conditions regarding sale that a purchaser, his heirs or assignees, shall not construct any building on the land without the written permission of the Deputy Commissioner, and that if a building is erected with such permission it shall in no case be used as a shop or factory for commercial‑ purpose.
(4‑a) The land has been given for the planting of a garden. The purchaser shall construct a kacha wall, at least three feet high (which shall always be kept in proper condition) around it with him six months of the date of his obtaining possession and shall plant creeping or flowering plants and beautiful trees therein.
(5) Immediately after the purchase, the purchaser shall pay, costs of demarcation and water‑course at the rate of Rs. 2 per acre or a part thereof to the Colonization Officer or any other Officer conducting the sale. Canal Officers shall propose and construct water‑courses. The purchaser shall pay at least 5 percent of the sale money at the spot and sign the attached agreement in Form B. The agreement shall be executed on a stamp‑paper, purchased at the cost of the purchaser.
(6) In case of non‑payment of all or any one of the aforesaid items or of refusal to sign the agreement, the land shall be resold. If the purchaser fulfils the above conditions, he shall be supplied a certified copy of the agreement on a stamp‑paper, which he shall himself purchase.
(7) After the expiry of one month from the date of sale, simple interest shall be charged at the rate of Re. 0‑6‑0 percent per annum on the remaining sale‑money until it is paid off in full.
(8) Within three months of the date of sale, the purchaser shall, without any demand being made to him, pay as much money as with the addition of the sum deposited on the first day amounts to half of the sale-money. He shall also pay as much interest as falls due by that time. Moreover, he shall, without a demand being made to him, pay the remaining sale‑money as well as the interest due ‑within six months of the date of sale. Payment of the aforesaid items as also of interest, if any, within the stipulated period shall be considered to be the essence of the agreement of sale, with the proviso that the Colonization Officer can; on a written application of a person permit him to pay the money by instalments, which shall not extend over a period of more than two years from the date of sale.
(9) Possession of the land sold, shall be delivered to the purchaser after he has paid 40 percent of the entire sale‑money. He shall also put in a receipt as, to his having obtained possession.
(10) If a purchaser fails to pay any amount due or interest at the stipulated time, the Colonization Officer shall be compe tent to cancel the agreement and the entire amount paid up to that time as part of the sale‑money, cost of water‑course or interest shall be considered forfeited to the Government.
(11) (i) When the entire sale‑money and other items due under these conditions are paid off, the Colonization Officer shall prepare in English an agreement in Form B, appended to the rules governing lease of land under the Government and incorporate therein the conditions (a) to (d) and (1) and (2) given herein or similar other conditions.
(ii) Cost of stamp‑paper shall be borne by the Government, after a sale‑deed has been duly prepared, the Colonization Officer shall get it registered at Government expense:
(iii) If a purchaser objects to the execution of a sale‑deed when called upon to do so, or fails to execute one without a reasonable . . . (torn) . . . the Government shall be competent to cancel the agreement and declare the sale as null and void.
(12) If an agreement is cancelled under conditions Nos. 6, 10 or 11, and the land is re‑sold at a price less than that for which it was sold in the first instance, the first purchaser shall be liable to make good the deficiency.
(13) If, after taking possession under condition No. 9, a purchaser fails to pay the amount, due on .the date fixed, and the Colonization Officer cancels the sale in his favour in the exercise of the powers vested in him under these conditions, the Government shall be competent to take possession of the land sold forthwith.
(14) All moneys on account of sale‑money or interest or other items due under these conditions shall be paid to the Colonization Officer at Sargodha or deposited in a Government Treasury if he grants permission in writing.
(15) Area, etc., of land as entered are certainly correct and should be admitted as such. If any mistake, mis‑statement or omission is found in the above particulars, the sale shall be . . . and the Government or the purchaser shall not be entitled to any compensation in consequence thereof."
Mr. Bashir Ahmad contends that condition No. 4 is operative only during the period when their is between the parties an agreement of sale only and does not apply to the period after the sale becomes complete. He says the position of Gulsher Khan as an owner and not a person holding only an agreement to sell in his favour, has been accepted in the plaint and, therefore, para graph 4 would no longer bind him.
It will be observed that paragraph 4 is very clear and unqualified in its terms, and the argument of Mr. Bashir Ahmad, that this paragraph only relates to a period before the completion of the sale, would be liable to more or less summary rejection had it not been because of some confusion that is created by Paragraph 11. Paragraph 11 (i) provides for the execution of an agreement in Form B ..This agreement in Form B should Tie distinguished from the agreement in Form B that is executed the purchaser, mentioned in paragraph 5, to which the conditions we are considering form a schedule. The Form B, mentioned in paragraph 11, is one "appended to the rules govern ing leases of land under the Government." This will be found printed at page 368 of the Land Administration Manual. This is in fact the form of a sale‑deed to be executed in favour of a tenant who has paid for the proprietary rights. Paragraph 11 read as a whole and particularly in conjunction with paragraph 5 will make it clear that the document referred to in paragraph 11 is sale‑deed of which the cost is to be borne by the Government whereas the document mentioned in paragraph 5 is only an agreement the cost of which is to be borne by the purchaser.
However, this is not the confusion upon which Mr. Bashir Ahmad bases any particular agreement. The real confusion is yet to come. Paragraph 11 (i) provides that in the sale‑deed will b e incorporated conditions (a) to (d) and (1) and (2) and similar other conditions'. Mr. Bashir Ahmad argues that as out of the con ditions in the agreement only those mentioned in paragraph 11 (i) are to be incorporated in the sale‑deed, the inference is that a remaining conditions are not intended to govern the sale after execution of the sale‑deed. In considering this argument it should be clarified, in the first place, that the words (a) to (d) and (1) and (2) are obviously incorrect as there are no (a) to (d) apart ('nom (2) which is separately mentioned. We have consulted the printed Urdu conditions and our conclusion is that there is a mis print as well as misreading of the Urdu letters. The digit (1) has been mentioned for what was the letter re but in fact should have been ze. The conditions as printed are alif ta dal va ze do. In fact it should be alif to dal iva ze do. It is clear that reference is only so the sub‑clauses of paragraph (2). However, this is only a clarification, and the argument of Mr. Bashir Ahmad remains which is that as only the various clauses of paragraph 2 are mentioned, obviously all other are excluded and that if the inten tion was that all paragraphs of this agreement were to be regarded governing the sale then there was no need to mention the clauses of paragraph 2 only. We do not think that in the circum stances of this case the omission to mention paragraph 4 in para graph (11) (i) necessarily raises an inference that paragraph 4 is limited in its operation to a period the agreement becomes a sale. The words of paragraph 4 are quite clear and had the intention as is suggested by Mr. Bashir Ahmad there is no reason why the same should not have been expressly provided. More than one reason can be suggested as to why paragraph 4 was not included in the provisions mentioned in paragraph 11 (i). It appears that paragraph 11 (i) is a set paragraph forming part not only of the condition of the sale of garden sites but of other kinds of condi tion in which paragraph 4 in question finds no place. Paragraph 2 is, however, common to all. So paragraph 11 contains reference only to paragraph 2 which also would be there in all agreement and the remaining conditions are regarded as special conditions of each kind. But it does not mean that unless those other conditions are put in the sale deed they will not govern the sale even if they be quite clear in their terms. It will be observed that Mr. Hailey had mentioned in his letter that the sites were to be used only as gardens and the Punjab Government had granted sanction for the sale on this basis. The reason for the sale was that the presence of gardens would be an attraction for the town of Sargodha. The application of Gulsher Khan was for a garden site and the order granting his application said (Exh. P. 36) that a garden was being allotted on the usual conditions.' The conduct of the Government officials in this connection is quite inconsistent with the interpre tation suggested by Mr. Bashir Ahmad. They had always taken exception to any construction on the land. The form of the deed of conveyance for a garden site, printed at pages 139‑142 of Supplement III to the Colony Manual, contains conditions 6 and 7 which prohibit any use of the land except as garden and for bids any construction thereon except with the sanction of the Deputy Commissioner'. Only, this form being used in the year 1910 and the sale in question being of 1908, we cannot say that this form was actually being used and only refer to it as indicating intention. The application of Gulsher Khan was for the grant of land for a garden. When it was discovered that he was delaying the planting of a garden, a notice (Exh. P. 45) was issued to him saying that he had been allotted a garden and calling upon him to show cause why the garden should not be confiscated for breach of conditions. To this notice the reply of Nawab Khan, brother of Gulsher Khan (he himself had gone to England) was that 500 trees had been planted and on account of plague, mali and servants had run away and the plants had got dry and that more trees will be planted next season. We have no hesitation in finding that paragraph 4 applies not only to a period before sale but governs the sale itself and the vendee is not entitled to raise any construction without the Deputy Commissioner's permission.
We will mention here another question that arises in con nection with the argument that the prohibition of construction applies only to a period before sale. The argument properly put should be that prohibition applies to a period before the execution of the sale‑deed, because that would be the effect of Mr. Bashir Ahmad's argument which rests on the contention that when a sale deed is in fact executed, paragraph 4 forms no part of it and, therefore, the condition is no longer operative. The learned Advocate‑General argues that as yet no sale deed has‑been execut ed and, therefore, the argument has no basis on facts. Not only that but it is one of the pleas of the plaintiff, which has even been given effect to by the learned Subordinate Judge, that no sale‑deed having been executed paragraph 3 of the conditions of sale is applicable and the land could not even be sold without the permission of the Deputy Commissioner. But we find from the conditions that it was the duty of the plaintiff to have a sale deed prepared and executed. It is the plaintiff who was to pay the cost. We cannot allow the plaintiff to take advantage of its own default and say that as the sale‑deed has not been executed the conditions operative only before the sale‑deed are yet in force. The plaintiff accepted in the plaint that Gulsher Khan was a purchaser and a grantee of land. Here is a transaction which the parties intended to he completed by formal document. The parties have by their conduct waived the formal document and regarded the transaction as complete: without it. They should be deemed to have accepted the transaction as creating the same rights which would have accrued if transaction had been completed in the manner intended. None of the parties can be allowed to have advantage of non‑compliance with what the parties have actually regarded as a formality.
The next contention of Mr. Bashir Ahmad is that even though Gulsher Khan was bound by this condition, Sulaiman Khan as a bona fide purchaser for value without notice is not bound. Whether a notice is necessary at all; in view of the Crown Grants Act and if a notice be necessary whether the onus is not upon the transferee to prove its absence are matters with which we will deal later. We will consider for the present whether from the material on the record notice to Sulaiman Khan is established. That Sulaiman Khan had notice of the conditions when he constructed the building is not and cannot be in dispute because to the very first attempt of Sulaiman Khan to build objection was taken by the Deputy Commissioner and successfully too, for in spite of the sanction of his first application by the Municipal Committee Sulaiman Khan was not allowed to build. But the learned counsel argues that Sulaiman Khan's knowledge after he had purchased the land would be immaterial and. what affects the matter is his knowledge at the time he acquired the property. So far as the second sale of 18th of August 1929, is concerned it is again clear that Sulaiman Khan did know of the condition in question. On 7th of August 1929, the Special Assis tant to the Deputy Commissioner went to the spot in the presence of Sulaiman Khan in connection with his first application to build in order to find out whether the construction should be sanctioned in view of this condition. He found that a kacha mali quarter already existed and, therefore, the construction was one which should not be sanctioned. The Deputy Commis sioner approved of the report and refused to allow the construction of the building. There is an order on the file that the applicant was to be informed and on the 14th of August 1929, there is a note that he had been informed. Even his presence on the spot, when the Special Assistant to the Deputy Commissioner inspected the spot, would be sufficient to fix him with notice of this condition. There is no doubt that Sulaiman Khan did have, at the time when his first application for building was being considered, full notice of the condition that he could not build without permission of the Deputy Commissioner and that the site was to be used only as a garden. Sulaiman purchased the remaining one‑third of the land on 18th of August 1929, i.e., after his first application had been rejected and he had been informed.
Coming now to the evidence as to notice of the condition before the first sale, we have the following facts established on the record:‑
"(1) Sulaiman Khan was a tenant of this very land for about a year or two before he purchased it. This is admitted by him in his statement as a witness and an allegation to this effect had also been made in the plaint.
(2) To the very first application of Sulaiman Khan for build ing, the Deputy Commissioner objected. The Special Assistant inspected the spot in the presence of the defendant and recorded his opinion that the construction asked for exceeded the requirements of a garden and directed that the defendant should put in a new application which should ask for only one kotha The Deputy Commissioner approved of this and rejected the application of Sulaiman Khan. Sulaiman Khan did not take up the position that he did not know of this condition or that he was entitled to build. Instead he complied with the direction given by the Special Assistant and demolished his kacha kotha and put in a new application for a mali quarter. When after the rejection of his first application by the Deputy Com missioner the latter issued a notice as to why he had constructed in breach of condition his reply was that he had not made any construction and had not committed breach of any condition. Reports Exhs. P. 86 and P. 92 record the fact that his statement had been recorded and he had said that he knew the Colony rules and that he had not committed any breach. This statement, as already remarked, is missing from the file but P. W. 17, the Special Assistant, has stated that he must have seen this statement before ' he made the report Exh. P. 172. There have been prolonged proceedings between Sulaiman Khan and the Government and he never took up the position that lie was a bona fide transferee for value without notice. His statements had been recorded on 16th of November, 1931, 6th of April 1932 and 19th of May 1932, and the position taken tip by him in these statements was that the construction was intended for a garden. It is only in his statement dated 7th March 1932, that he took up the position that he did not know that the land belonged to Government but even that statement read as a whole is quite vague.
(3) In spite of the fact that he had come to know of the con dition before the second purchase, he purchased the remaining one‑third at a price which is proportionately even slightly higher than that which he had paid for the first sale.
(4) He has not taken any action against his own vendor for not giving him information as to this serious limitation on his right to build which would adversely affect the value of the property.
(5) He gives no proper explanation as to why he did not enquire into the title of Gulsher Khan. He says he asked the sons of Gulsher Khan whether there was any deed and they said that there was none.
(6) Presumably he knew that the land had been purchased from the Government. He says he asked his vendors as to title deeds and was told that there were none."
We agree with the learned Subordinate Judge 'that a fair inference arises from the circumstances of this case that s caiman Khan had notice of the condition as to restriction on buildings. We have already held that with respect to the second purchase there is direct, evidence of notice.
The learned Advocate‑General has referred us to Wilson v. Hart ((1866) 1 Ch. A. 463) for the proposition that the purchaser is affected with notice of the title of his vendor. The general principle as regards notice is laid down, so far as we are concerned, in the definition of notice in section 3 of the Transfer of Property Act. Cases decided under that section show that a person has notice if it was his, duty to make an enquiry or if there was something to put him on an enquiry which if he pursued he would have learnt the, truth. These two propositions are so, well established that we need not refer to authorities in support thereof. We do not feel; however, the need of going into the principles of English Law applicable and we only note that the inference which we have raised from the facts independently of the proposition put forward by the learned Advocate‑General receives support from the case relied upon by him.
We have considered the question of notice apart from the question of burden of proof. The provision applicable is section 40 of the Transfer of Property Act which enacts that obligations annexed to the ownership of property are enforceable against every transferee except bona fide transferee for consideration without notice of the obligation. The provision is in terms very similar to section 27 (b) of the Specific Relief Act which makes contracts specifically enforceable against a transferee except a bona fide transferee for value without notice. In construing the latter provision, their Lordships of the Privy Council said in Bhup Narain Singh v. Gokul Chand Mahton and others (A I R 1934 P C 68)
"In their Lordships', opinion, the section lays down a general rule that the original contract may be specifically enforced against subsequent transferee, but allows an exception to that general rule, not to the transferor, but to the transferee and, in their Lordships' opinion it is clearly for the transferee to establish the circumstances which will allow him to retain the benefit of transfer which prima facie, he had no right to get. Further the subsequent transferee is the person within whose knowledge the facts as to whether he has paid and whether he had notice of the original contract lie, and the provisions of sections 103 and 106, Evidence Act, 1872 have a bearing on the question." (p. 70).
The observations are fully applicable to a case under section 40 of the Transfer of Property Act, and we hold that the onus of proving want of notice is on the transferee and this burden he has failed to discharge.
However, though we have given full consideration to the argument about notice, we are of the opinion that the question of notice does not arise in this case. The transfer is by the Crown and is governed by the Crown Grants Act, and, according to sections 2 and 3 of that Act, the grant takes effect according to its tenor. We are aware of Thakur Jagannath Bakhsh Singh v. The United Provinces (A I R 1946 P C 127) Thakur Jagannath Bakhsh Singh v. The United Provinces (A I R 1943 F C 29) and Mathra Das v. Punjab Province (A R 1949 E P 246) wherein it has been held that the provisions of section 3 of the Crown Grants Act are not to be interpreted in the broad and unqualified sense which they apparently have, and are to be confined to the object with which that Act was enacted, i.e., to get over certain provisions of the Transfer of Property Act, which went to invalidate terms contained in Crown Grants. However, in the present case the only enactment which can affect the relevant condition of the grant is the Transfer of Property Act. Mr. Bashir Ahmad is unable either to put forward an argument or quote any authority for getting rid of the effect of the Crown Grants Act.
For the two remaining contentions of Mr. Bashir Ahmad little there is to be said. There was no plea of change of circum stances in the written statement and there is no evidence on the record to substantiate it. It is said that the place in dispute is quite near the City Police Station of Sargodha. That may be so, but will hardly affect the contract between the parties. The gardens were intended as an attraction for the city anti the conditions regarding maintenance of gardens cannot come to an end simply by the city coming quite close to the garden. Mr. Bashir Ahmad says the area has become ‑unfit for use as garden. For this there is neither plea nor issue and there is no evidence to support it. The plea of waiver is futile far from the very beginning the Government officials have been objecting to the construction: No inference of waiver can be raised from mere delay in filing the suit in the circumstances of this case.
In the cross‑appeal little has been said to make us interfere with the discretion exercised by the learned subordinate Judge in granting damages instead of a madatory injuction.
As a result both appeals fail and are dismissed. The parties will bear their own costs of both the appeals.
A. H. Appeals dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer