Punjab-Haryana High Court
Jyoti Gir vs Krishan Kumar And Ors on 30 July, 2026
Author: Pankaj Jain
Bench: Pankaj Jain
RSA-2806-2022 (O&M)
RSA-702-2023 (O&M)
114 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Whether only operative part of the judgment is pronounced? No
Whether full judgment is pronounced? Yes
Reserved on 01.05.2026
Pronounced on : 30.07.2026
Uploaded on : 30.07.2026
RSA-2806 of 2022 (O&M)
Jyoti Gir ....Appellant
Versus
Krishan Kumar & ors. ....Respondents
RSA-702 of 2023 (O&M)
Jyoti Gir ....Appellant
Versus
Krishan Kumar & ors. ....Respondents
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
*****
Present:- Mr. Ajay K. Gupta, Advocate
for the appellant(s) in both appeals.
Mr. Ashok Giri, Advocate
for respondents No.1 and 2.
Mr. Brijesh Kumar, Advocate and
Ms. Sheetal Jaisal, Advocate
for respondent No.3.
***
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RSA-2806-2022 (O&M)
RSA-702-2023 (O&M)
PANKAJ JAIN, J.
CM-9660-C-2022 & CM-9659-C-2022 in RSA-2806-2022
The present applications have been filed seeking condonation of
a delay of 22 days in re-filing and 133 days in filing the present appeal.
For the reasons recorded in the applications, this Court is
satisfied that the applicant-appellant has shown sufficient cause for condoning
the delay in re-filing and filing the appeal.
Accordingly, the applications are allowed. The delay of 22 days
in re-filing and 133 days in filing the present appeal is condoned.
CM-9-C-2023 in RSA-2806-2022
For the reasons recorded in the application, the same is allowed.
Document Annexure A-8 is taken on record.
RSA-2806-2022 (O&M) and RSA-702-2023 (O&M)
1 This order shall dispose off above mentioned two appeals.
2 Defendant No.1 is in second appeal. For convenience, parties
hereinafter are referred to by their original position in the suit, i.e. the
appellant as defendant No.1, respondents No.1 & 2 as plaintiffs and
respondent No.3 as proforma defendant.
3 Plaintiffs filed suit seeking decree of declaration and
possession with the consequential relief of permanent injunction. Plaintiffs
sought declaration to the effect that the sale deed bearing No.334 dated
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02.06.1981 whereby possessory rights were transferred to defendant No.1 and
the consequential rapat roznamcha dated 12.03.2005 entering the possession
of defendant No.1 over the suit land are wrong, illegal, null and void.
4 As per the plaintiffs, the forefathers of Lijja, son of Ishri, son of
Birja, were cultivating suit land as Dholidars. After the death of Ishri, Lijja
came into possession of the suit land as Dholidar. Lijja transferred possessory
rights qua suit land in favour of defendant No.1 for a sum of Rs.12,000/- by a
sale deed dated 337 dated 02.06.1981. Lijja had no right, or title vested in
him to transfer the same. Dholidar has no right to alienate Dholi. Ram
Chander and Balbir sons of Lijja Ram @ Lijja filed petition under Section 3
of Haryana Dholidar (Vesting of Proprietory Right) Act, 2010 (for short, ‘the
2010 Act,) before Assistant Collector, 1st Grade seeking declaration of
ownership of the suit land. The petition was accepted by Assistant Collector,
1st Grade vide order dated 31.12.2013. Ram Chander and Balbir sons of Lijja,
were declared as owners of the suit land. Ram Chander, Balbir and Ramesh
Chander sons of Lijja vide sale deed dated 27.01.2014 sold 7/18th share, i.e.
8 K 6M of suit land in favour of the plaintiffs vide sale deed bearing document
No. 5616 dated 27.01.2014. Performa defendant Sultan Singh purchased 1/9th
share, i.e. 2 K 7M of suit land vide sale deed dated 27.01.2014 from Kanta,
Murti, Ramkali and Krishna, daughters of Lijja Ram.
5 Plaintiffs claim that sale deed dated 02.06.1981 executed by Lijja
Ram in favour of defendant No.1 is not binding on their rights. Lijja Ram
being Dholidar had no right to alienate dholi. Defendant No.1 is in occupation
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of the suit land without any right. As per the revenue record, suit land has
been given on patta to defendant No.1 from 24.09.1993 till 03.01.2023.
Plaintiffs thus claim possession of defendant No.1 to be illegal and prayed for
decree of declaration and possession.
6 Defendant No.1 contested the suit. As per the defendant No.1,
she purchased possessory rights from Lijja Ram vide sale deed dated
02.06.1981. She filed Civil suit No.RBT-67/2013/2011, titled as “Jyoti Gir
Vs. Mahinder”. The same was decreed on 24.02.2014. Decree of permanent
injunction was passed in favour of the defendant and against the plaintiffs.
7 On the basis of the pleadings, the Court of First Instance framed
the following issues :-
“1. Whether the plaintiffs are entitled for a decree of declaration,
as prayed for ?OPP
2. Whether the plaintiffs are entitled for a decree of possession,
as prayed for ?OPP
3. Whether the plaintiffs are entitled for a decree of permanent
injunction, as prayed for ?OPP
4. Whether suit of the plaintiffs is not maintainable in the present
form? OPD.
5. Whether the plaintiffs have suppressed the true and material
facts from the court? OPDPOOJA SHARMA
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6. Whether the plaintiffs have no locus standi to file the present
suit ? OPD.
7. What relief.”
8 While deciding issues No.1 to 3, the Court of First Instance held
that in terms of the ratio of law laid down by this Court in Sittal Dass Vs.
Financial Commissioner Haryana, 1989 (1) 1 page 571 (PB), dholi tenure
is inalienable and thus the sale deed executed by Lijja Ram in favour of
defendant No.1 is illegal. The Court found that once Dholidar had no right to
transfer the suit land, the plaintiffs are entitled for decree of declaration and
possession qua suit land with the consequential relief of permanent injunction.
Suit filed by the plaintiffs was decreed.
9 Dissatisfied defendant No.1 filed an appeal.
10 Lower Appellate Court affirmed the findings recorded by the
Court of First Instance holding that dholi being inalienable Ex.P-2 sale deed
executed by Lijja Ram in favour of defendant No.1 dated 02.06.1981 is
unlawful document which would not confer any statutory right on the
defendant No.1 as vendor was neither competent, nor eligible in executing
such document. The Appellate Court however held that since defendant No.1
is in possession of the suit property as lessee till 03.012023, on payment of
lease money, plaintiffs shall be entitled to take back physical possession of
the suit property only after termination of lease period on 03.01.2023. The
Appellate Court accordingly modified the judgment and decree passed by the
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Courts below, only to the limited extent that the plaintiffs shall be entitled to
take back physical possession after expiry of lease period on 03.01.2023.
11 Learned counsel for defendant No.1 has assailed the findings of
the Courts below. He submits that the suit is bad for non-joinder of parties.
Neither Lijja Ram nor his legal representatives ever challenged the sale deed.
He contends that dholi in the present case was alienable as it was not for
parmarth. The Courts below erred in ignoring the mandate of Section 43 of
the Transfer of Property Act, 1882 (for short, ‘the 1882 Act’). He relies upon
Dharam Vir Vs. Bahadur Singh & anr., 2007(2) RCR (Civil) 217, Shri Sheo
Nath & ors., Vs. Ram Narain & anr. 2008 (3) RCR (Civil) 36, Durga Dass
alias Dawarka Dass Chela Vs. Commissioner, Hissar Division, Hisar and
others, 2012 (15) RCR (Civil) 399 and Amarnath Vs. Dal Singh, 2024 (2)
PLR 1, in support of his contention.
12 Learned counsel for the respondents relies upon judgment passed
by this Court in Narinder Kumar Sharma Vs. M/s DLF Universal Limited
& ors., 2024 NCPHHC 143951, wherein this Court relied upon Division
Bench of this Court in the case of Dharam Vir ‘s case (supra), to hold that
dholi tenure is inalienable. Mr. Giri submits that dholi being not alienable
Courts rightly annulled the sale deed in favour of defendant No.1 executed by
Lijja Ram.
13 I have heard learned counsel for the parties and have carefully
gone through records of the case.
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14 Conceded case is that Lijja was holding possession over the suit
property as Dholidar. This is also not in dispute that Lijja Ram transferred
possessory rights in favour of defendent No.1 for consideration vide registered
sale deed dated 02.06.1981. Since then defendant No.1 is in possession of
suit land. After enactment of the 2010 Act legal heirs of Lijja Ram filed
petition under Section 3 of the 2010 Act seeking ownership rights. They were
declared to be owner recognizing their Dholi tenure by Assistant Collector, 1st
Grade vide order dated 31.12.2013. Having been declared as owners, they
transferred part of the suit land in favour of plaintiffs vide registered sale deed
dated 27.01.2014. The plaintiffs are the transferees under the said sale deed.
In light of these admitted facts, the issue is not whether Dholi being alienable
or not, the fate of lis hinges upon answer to the following question :-
“Whether Section 43 of the 1882 Act, which embodies the rule of
feeding estoppel, operates against the legal representatives of
Lijja Ram and their successors or not?”
15 Section 43 of the 1882 Act reads as under :-
“43. Transfer by unauthorised person who subsequently
acquires interest in property transferred.–Where a person
fraudulently or erroneously represents that he is authorised to
transfer certain immovable property and professes to transfer such
property for consideration, such transfer shall, at the option of the
transferee, operate on any interest which the transferor may acquire
in such property at any time during which the contract of transfer
subsists.
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Nothing in this section shall impair the right of transferees in
good faith for consideration without notice of the existence of the said
option.”
16 The same came up for consideration of the Supreme Court in
somewhat similar circumstances in the case of Jumma Masjid, Mercara Vs.
Kodimaniandra Deviah and others, 1962 AIR Supreme Court 847. Holding
that a transferee is entitled to benefit of Section 43 of the 1882 Act, where the
transferor transfers the property possessing mere spes successionis the
Supreme Court observed as under :-
12. So far we have discussed the question on the language of the
section and on the principles applicable thereto. There is an
illustration appended to Section 43 and we have deferred
consideration thereof to the last as there has been a controversy as to
how far it is admissible in construing the section. It is as follows :-
“A, a Hindu, who has separated from his father B, sells to C
three fields, X Y and Z, representing that A is authorised to
transfer the same. Of these fields Z does not belong to A, it
having been retained by B on the partition; but on B’s dying A
as heir obtains Z. C, not having rescinded the contract of sale,
may require A to deliver Z to him.”
In this illustration, when A sold the field Z to C he had only a spes
successionis. But he having subsequently inherited it, C became
entitled to it. This would appear to conclude the question against the
appellant. But it is argued that the illustration is repugnant to the
section and most be rejected. If the language of the section clearly
excluded from its purview transfers in which the transferor had only
such interest as is specified in Section 6(a), then it would undoubtedly
not be legitimate to use the illustration to enlarge it. But far from
being restricted in its scope as contended for by the appellant, the
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section is, in our view, general in its terms and of sufficient amplitude
to take in the class of transfers now in question. It is not to be readily
assumed that an illustration to a section is repugnant to it and
rejected. Reference may, in this connection, be made to the following
observations of the Judicial Committee in 43 Ind App 256: 1916-2 AC
575 as to the value to be given to illustrations appended to a section,
in ascertaining its true scope :
“It is the duty of a court of law to accept, if that can be done,
the illustrations given as being both of relevance and value in
the construction of the next. The illustrations should in no case
be rejected because they do not square with ideas possibly
derived from another system of jurisprudence as to the law
with which they or the sections deal. And it would require a
very special case to warrant their rejection on the ground of
their assumed repugnancy to the sections themselves. It would
be the very last resort of construction to make any such
assumption. The great usefulness of the illustrations, which
have, although not part of the sections, been expressly
furnished by the Legislature as helpful in the working and
application of the statute, should not be thus impaired.”
13. We shall now proceed to consider the more important cases
wherein the present question has been considered. One of the earliest
of them is the decision of the Madras High Court in Alamanaya
Kunigari Nabi Sab v. Murukuti Papiah, 29 Mad LJ 733. That arose
out of a suit to enforce a mortgage executed by the son over properties
belonging to the father, while he was alive. The father died pending
the suit, and the properties devolved on the son as his heir. The point
for decision was whether the mortgagee could claim the protection of
Section 43 of the Transfer of Property Act. The argument against it
was that “S. 43 should not be so construed as to nullify Section 6(a)of
the Transfer of Property Act, by validating a transfer initially void
under Section 6(a)“. In rejecting this contention, the Court
observed :-
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“This argument, however, neglects the distinction between
purporting, to transfer ‘the chance of an heir-apparent’, and
‘erroneously representing that he (the transferor) is authorised
to transfer certain immovable property.’ It is the latter course
that was followed in the present case. It was represented to the
transferee that the transferor was in praesenti entitled to and
thus authorised to transfer the property.” (p. 736 of Mad LJ).
On this reasoning, if a transfer is statedly of an interest of the
character mentioned in Section 6(a), it would be void, whereas, if it
purports to be of an interest in praesenti, it is within the protection
afforded by Section 43.
14. Then we come to the decision in Official Assignee, Madras v.
Sampath Naidu, 65 Mad LJ 588 where a different view was taken. The
facts were that one V. Chetti had executed two mortgages over
properties in respect of which he had only spes successionis. Then he
succeeded to those properties as her and then sold them to one
Ananda Mohan. A mortgagee claiming under Ananda Mohan filed a
suit for a declaration that the two mortgages created by Chetty before
he had become entitled to them as heir, were void as offending Section
6(a) of the Transfer of Property Act. The mortgagee contended that in
the events that had appened the mortgages had become enforceable
under Section 43 of the Act. The Court negatived this contention and
held that as the mortgages, when executed, contravened Section 6(a),
they could not become valid under Section 43. Referring to the
decision in 29 Mad LJ 733 the Court observed that no distinction
could be drawn between a transfer of what is on the face of it spes
successionis, and what purports to be an interest in praesenti. “If such
a distinction were allowed”, observed Bardswell, J., delivering the
Judgment of the Court, “the effect would be that by a clever
description of the property dealt with in a deed of transfer one would
be allowed to conceal the real nature of the transaction and evade a
clear statutory prohibition.”
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15. This reasoning is open to the criticism that it ignores the principle
underlying Section 43. That section embodies, as already stated, a
rule of estoppel and enacts that a person who makes a representation
shall not be heard to allege the contrary as against a person who acts
on that representation. It is immaterial whether the transferor acts
bona fide or fraudulently in making the representation. It is only
material to find out whether in fact the transferee has been misled. It
is to be noted that when the decision under consideration was given,
the relevat words of Section 43 were, “where a person erroneously
represents”, and now, as amended by Act 20 of 1929, they are “where
a person fraudulently or erroneously represents”, and that
emphasises that for the purpose of the section it matters not whether
the transferor acted fraudulently or innocently in making the
representation, and that what is material is that he did make a
representation and the transferee has acted on it. Where the
transferee knew as a fact that the transferor did not possess the title
which he represents he has, then he cannot be said to have acted on it
when taking a transfer 6(a). But where the transferee does act on the
representation, there is no reason why he should not have the benefit
of the equitable doctrine embodied in Section 43, however fraudulent
the act of the transferor might have been.
16. The learned Judges were further of the opinion that in view of the
decision of the Privy Council in Annanda Mohan Roy v. Gour Mohan
Mullick, 50 Ind App 239 : ILR 50 Calcutta 929 and the decision in
Lakshmi Narayana Jagannada Raju v. Varada Lakshmi Narasimha,
ILR 39 Madras 554 which was approved therein, the illustration to
Section 43 must be rejected as repugnant to it. In Jagannada Raju’s
case, the question was whether a contract entered into by certain
presumptive reversioners to sell the estate which was then held by a
widow as heir could be specifically enforced, after the succession had
opened. It was held that as Section 6 (a) forbade transfers of spes
successionis, contracts to make such transfers would be void under
Section 23 of the Contract Act, and could not be enforced. This
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decision was approved by the Privy Council in 50 Ind App 239: ILR
50 Calcutta 929 where also the question was whether a contract by
the nearest reversioner to sell property which was in the possession
of a widow as heir was valid and enforceable, and it was held that the
prohibition under Section 6(a) would become futile, if agreements to
transfer could be enforced. These decisions have no bearing on the
question now under consideration, as to the right of a person who for
consideration takes a transfer of what is represented to be an interest
in praesenti. The decision in 65 Mad LJ 588 is, in our view, erroneous,
and was rightly overruled in the decision now under appeal.
17. Proceeding on to the decisions of the other High Courts, the point
under discussion arose directly for decision in Shyam Narain v.
Mangal Prasad, ILR 57 Allahabad 474. The facts were similar to
those in 65 Mad LJ 588. One Ram Narayan, who was the daughter’s
son of the last male owner sold the properties in 1910 to the
respondents, while they were vested in the daughter Akashi. On her
death in 1926, he succeeded to the properties as heir and sold them in
1927 to the appellants. The appellants claimed the estate on the
ground that the sale in 1910 conferred no title on the respondents as
Ram Narayan had then only a spes successionis. The respondents
contended that they became entitled to the properties when Ram
Narayan acquired them as heir in 1926. The learned Judges, Sir S. M.
Sulaiman, C. J., and Rachhpal Singh, J., held, agreeing with the
decision in 29 Mad LJ 733 and differing from 65 Mad LJ 588 and
Bindeshwari Singh v. Har Narain Singh, ILR 4 Luck 622, that Section
43 applied and that the respondents had acquired a good title. In
coming to this conclusion, they relied on the illustration to Section 43
as indicating its true scope, and observed :
“Section 6 (a) would, therefore, apply to cases where
professedly there is a transfer of a mere spes successionis, the
parties knowing that the transferor has no more right than that
of a mere expectant heir. The result, of course, would be the
same where the parties knowing the full facts fraudulently
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clothe the transaction in the garb of an out and out sale of the
property, and there is no erroneous representation made by the
transferor to transferee as to his ownership.
“But where an erroneous representation is made by the
transferor to the transferee that he is the full owner of the
property transferred and is authorised to transfer it and the
property transferred is not a mere chance of succession but
immovable property itself, and the transferee acts upon such
erroneous representation, then if the transferor happens later,
before the contract of transfer comes to an end, to acquire an
interest in that property, no matter whether by private
purchase, gift, legacy or by inheritance or otherwise, the
previous transfer can at the option of the transferee operate on
the interest which has been subsequently acquired, although it
did not exist at the time of the transfer.” (pp. 478-479) (of ILR
All).
This decision was followed by the Bombay High Court in Vithabai v.
Malhar Shankar, ILR (1938) Bom-155, and by the Patna High Court
in Ram Japan v. Jagesara Kuer, AIR 1939 Patna 116. A similar view
had been taken by the Nagpur High Court in Bismilla v. Manulal
Chabildas, AIR 1931 Nagpur 51.
18. The preponderance of judicial opinion is in favour of the view
taken by the Madras High Court in 29 Mad LJ 733, and approved by
the Full Bench in the decision now under appeal. In our judgment, the
interpretation placed on Section 43 in those decisions is correct and
the contrary opinion is erroneous. We accordingly hold that when a
person transfers property representing that he has a present interest
therein, whereas he has in fact, only a spes successionis, the
transferee is entitled to the benefit of Section 43, if he has taken the
transfer on the faith of that representation and for consideration. In
the present case, Santhappa, the vendor in Ex. III, represented that he
was entitled to the property in praesenti, and it has been found that
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the purchaser entered into the transaction acting on that
representation. He therefore acquired title to the properties under
Section 43 of the Transfer of Property Act, when Santhappa became
in title on the death of Gangamma on February 17, 1933 and the
subsequent dealing with them by Santhappa by way of release under
Ex. A did not operate to vest any title in the appellant.”
17 In view of above, this Court finds that the Courts below erred in
ignoring Section 43 of the 1882 Act while decreeing the suit filed by the
plaintiffs. Heirs of Lijja Ram cannot claim sale deed executed by him to be a
nullity on the ground that dholi being inalienable he had no right to execute
sale deed qua possessory rights. Courts below thus should not have declared
sale deed dated 02.06.1981 in favour of appellant as null and void.
16 View formulated by the Courts below in the impugned
judgments being unsustainable, the impugned judgment and decrees are
hereby set aside. In light of ratio of law laid down by Supreme Court in
Pankajakshi vs. Chandrika‘ (2016) 6 SCC 157, substantial question of law
need not be framed as appeal needs to be treated in terms of Section 41 of
Punjab Courts Act, 1918 and not under Section 100 CPC 1908.
18 Present appeal bearing No. RSA-2806-2022 is allowed. Suit
filed by the plaintiffs are ordered to be dismissed.
19 Pending miscellaneous application, if any, also stands disposed
off.
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20 This appeal arises out of pre-emption suit filed by
plaintiff/appellant. Since sale deed dated 02.06.1981 in favour of plaintiff has
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been upheld by detailed judgment passed in RSA-2806-2022, the present
appeal has been rendered infructuous.
21 Disposed off accordingly.
22 Pending miscellaneous application, if any, also stands disposed
off.
23 Photocopy of this order be placed on file of the connected case.
( PANKAJ JAIN )
30.07.2026 JUDGE
Pooja Sharma-I
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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