P L D 1959 (W (PLP)

Section 10‑A of the Dekkhan Agriculturists Relief Act, by its second proviso excludes the application of section 41 of the Transfer of Property Act, unless the transferree or his represen tative had held under a registered deed executed more than 12 years before the institution of the suit. Mhand v. Mst. Arnautul Hafeez P L D 1954 Lah. 278 fol. Ramchandani for Appellants. Ghulam Hussain for Respondents Nos. 1‑4. Date of hearing : 28th September, 1959. This second appeal arises in the following circumstances :‑ The present respondents 1 to 4 executed a document which appeared, on the face of it, to be an out and out sale in respect of their shares in four survey numbers in favour of the respondent No. 5 by a registered deed dated, 11‑6‑1923. Later on, respondent No. 5, Basantmal, by a private partition with the other co‑sharers of the said four survey numbers got two survey numbers as the sole holder thereof. The respondent No. 5 then sold these two survey numbers to one Haji Jonak by a registered deed of sale and Haji Jonak, in his turn, exchanged these two survey numbers with the present appellants. So that the present appellants claim to be the owner of these two survey numbers by virtue of the said exchange which was by a registered deed. The present respondents 1 to 4 filed the present suit being Suit No. 12 of 1953 in the Sub Civil Court, Kandhkot urging that the document of transfer by them though it appeared ostensibly to be a sale, was really a mortgage and that they were protected under the Deccan Agriculturists Relief Act. The Sub‑Judge, came to the conclusion that this transaction was an out and out sale and not a mortgage, and he therefore dismissed the suit. He however did not give any finding on the other issues, which were raised in the case. There was an appeal against this judgment‑ to the District Judge, Jacobabad, who remanded the case for decision on the remaining issues, though he did not himself give any finding on the only issue which had been decided by the Sub Judge. By this time the Sub‑Judge before whom the case had first been tried, found that this was a case of mortgage and not one of absolute sale, but he held that the purchasers, namely, the present appellants before me, were protected. under section 41 of the Transfer of Property Act and that the transfer in their favour could not be challenged. On all the other issues however he gave the finding in favour of the plaintiffs (the respondents before. me). The defendants then filed an, appeal before the District Judge being I Appeal No. 9 of 1956. This appeal was disposed of in a rather unsatisfactory manner. The learned District Judge, in the first place, held that the trial Court was wrong in applying section 41 of the Transfer of Property Act, because there was no plea to that effect in the trial Court. I am afraid I cannot accept this reasoning as there is no general rule that in the absence of an express plea a question such as the one arising under section 41 of the Transfer of Property Act cannot be taken up at the hearing, and that for that reason the judgment would be vitiated. Section 41 of the Transfer of Property Act is based upon the principle of natural equity "which must be universally appli cable that where one man allows another to hold himself out as the owner of his estate and that man purchases it for value from the owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be; permitted to recover upon his secret title unless he can. overthrow that purchaser by showing either that he had direct or constructive notice of the real title; or that there existed circumstances which ought to have put him upon an enquiry that, if prosecuted, would have led to a discovery of the real title". This is the principle which was laid down long ago by the Privy Council in Ramcoomar Koondoo and another v. John and Maria McQueen (11 Law Bengal Reports P C 46) It would thus appear that section 41 of the Transfer of Property Act is primarily based upon the equitable principle of estoppel and there is no doubt that there may be cases where such a stand cannot be taken up without proper pleas, yet it is not difficult to imagine cases such perhaps as the present one, where this point could be taken up as a pure question of law in view of the existence on record of all the relevant facts brought by the parties to the suit. But, though I am inclined to think that the finding of the learned District Judge upon the point is subject to question because of the reasons 'on which this particular finding was based, it is clear to me that the learned Judge would have easily disposed of this question by reference to the Deccan Agriculturists Relief Act. Mr. Ghulam Hussain Abbasi, the learned counsel for the respondents, has pointed out to me that section 10A of the Deccan Agriculturists Relief Act, by its second proviso excludes the application of section 41 of the Transfer of Property Act, unless the transferee or his representative has held under a registered deed executed more than 12 years before the institution of the suit. In this case the present appellants before me got this land by the deed of exchange in 1945, and therefore it is clear that they had not held it for more than 12 years before the institution of the suit, which was filed in 1951. I, therefore, hold that section 41 of the Transfer of Property Act did not apply in this case and the learned trial Judge was wrong in dismissing the plaintiff's suit on that ground. The matter, however, does not get concluded. In the first appeal, as it appears from the judgment of the learned District Judge, both he and the counsel for the respondents were under the impression that the finding of the trial Judge upon the point whether the transaction in suit was a mortgage and not an absolute sale, could not have been questioned by the respondents unless they had filed cross‑objections. It appears from the judgment of the learned District Judge that the respon dents' counsel had taken the stand that he challenged the finding of the trial Judge that the transaction in suit was a mortgage. He, however, confessed his helplessness for the reason that the previous counsel, who was in charge of the case, had not filed a‑ cross‑objection without which the judgment of the trial Court could not have been supported on grounds other than those upon which the decree had been passed in favour of the respondents. If the learned advocate had taken the trouble of reading Order XLI rule 22 and the commentary on the provision, it should have been plain to him that it is open to respondent to support the judgment of the Court from which an appeal is preferred on the grounds other than those which have been found in his favour without filing cross‑objections. It would then not have been necessary for him to lay the blame upon the other advocate who had handled the case earlier than him. Whatever controversy there might have been on this point was set at rest by a Full Bench decision of the Lahore High Court reported in Mhand v. Mst. Amautul Hafeez (P L D 1954 Lah. 278). Inasmuch as the learned District Judge decided not to go into the question whether the transaction was a mortgage or an absolute sale because of the mistaken notion that this could not be done unless the respondents had filed a cross‑objection, I think it is a fit case in which, in the interest of justice, I should remand this appeal to the first appellate Court to decide it upon the question whether the transaction in suit was a mortgage or an out and out sale. Since I have upheld the finding of the learned District Judge with regard to application of section 41 of the Transfer of Property Act, though for the reasons other than those given by him, that question will be treated as having been settled. The record shall now go back to the Court of the District Judge, who should issue notice to the parties to appear before him. Costs in this appeal shall abide the result of the suit. I direct the case be taken up by the lower appellate Court at the earliest possible time and decided expeditiously. K. B. A. Case remanded