V.P. Tyagi, J.
1. The legal representatives of deceased Kanmal defendant have filed this appeal against the judgment and decree passed by the Additional District Judge No. 2, Jodhpur on 8th February, 1972 decreeing the suit of the Union of India declaring the disputed property to be that of the railways.
2. The facts giving rise to this suit are in a nut-shell as follows: A plot of land measuring 244 Sq. gaj. within the railway boundaries near Sainik Piao on Kutchery road in the town of Jodhpur was purchased by Banshidhar defendant and a Patta of that plot was issued by the Patta Committee to Shri Binshidhar on 31-10 1955. Binshidair than transferred this plot of land by executing a sale-deed on 17-1-1958 in favour of Shri Hardutt Sarswat who in his turn further sold the said plot of land to Shri Kanmal Bhati by a registered sale-deed dated 23-7-1958 Shri Kanmal started making constructions on this plot This was protested by the railway authorities. It transpires that the Railways served the Municipal Council, Jodhpur with notice but the matter remained under consideration of the Municipal Council, Jodhpur and the dispute raised by the Railways was not decided by the said authority The Railway authorities claimed the disputed plot of land as their property because according to the plans which were in the possession of the Railways, this plot was shown within the railway boundary. While putting its plans before the Court, the Union of India stated that the said plot of land was acquired by the former State of Jodhpur and was handed over to the Railway as is clear from various letters and the plans possessed by the Railways. According to the plaintiff after the land was acquired by the Government of the erstwhile State of Jodhpur for being transferred to the Jodhpur State Railways a boundary wall was constructed and it is averred that the disputed land definitely falls within the railway boundary which under the provisions of the Railways Act automatically becomes the railway property. The Patta Ex. A/1 granted by the Jodhpur Municipal Council to Shri Banshidhar according to the plaintiff, was illegal as issued without any authority and therefore did not transfer any title in the land to Shri Banshidhar. It was further averred that this type of transfer of land did not pass any right, title and interest in the property in favour of Banshidhar and the subsequent transferees Shri Hardurt Satswat and Shri Kanmal. it was therefore, prayed by the Union of India that a decree be pissed against the defendants declaring the disputed plot of land to be that of the railways and also claimed mesne profits at the rate of Rs. 50/. p.m for the illegal use and occupation of the land by the defendants.
3. Municipal Council was also made a party to this suit. The written statement of the Municipal Council disclosed that the dispute could not be finally settled by the court unless the State Government was impleaded as a defendant. A notice under Section 80 C.P.C. was, therefore, given to the State of Rajasthan and, thereafter, the State was also impleaded as a party to the suit.
4. Defendants denied the claim of the Railways and came out with a plea that the Patta Committee constituted under the Patta Act had authority to transfer the land to Shri Banshidhar by issuing a Patta and since Banshidhar was the owner of the land, he could legally transfer the ownership in the land to his transferee Hardutt Sarawat who in his turn could further transfer the ownership of the plot to Kanmal.
5. Various issues were framed on the strength of the pleadings of the parties but the two questions on which arguments have been advanced before this court by the appellant are: whether the defendant No. 1, namely, Kanmal was legally entitled to the possession of the suit land and whether the plaintiff was entitled to mesne profits claimed by him.
6. The Railways in support of its claim about the ownership of the suit property, placed reliance on the following documents viz; 1 Plan No. WC-18/37 dated 10-6-27 (Ex. 2). 2 Plan No. WC-12/94 dated 7-12-47 (Ex. 4), 3. Plan No WC/154 dated 18-11-25 (Ex. 5), and 4 a letter Ex. 6 showing the sanction of the plan by the Government of Jodhpur State.
7. In order to prove these documents PW I Shri J.D. Mathur, Assistant Engineer, Northern Railway has entered the witness box. It may be mentioned that these documents were more than 30 years old and they were produced from the proper custody of the railway authorities, therefore, the presumption in the Evidence Act that these documents are genuine shall be attracted. But the plaintiff did not rely on that presumption alone and produced Shri J.D. Mathur and Shri Shivdayal Shrimall PW 2 an employee of the Archaeological department to support the genuineness of these documents. Shri Mathur has stated that the plans referred to above were issued from time to time by the Government of the erstwhile State of Jodhpur and that since then these documents were kept in the proper custody of the railway authorities. Letters Ex. 6 dated 16-11-1925 which was signed by the Revenue Member of the State Council of Jodhpur and addressed to the Manager Railway, Jodhpur, shows that the land demanded by the Jodhpur State Railways were sanctioned by the State Government and that direction was issued to the General Manager to raise boundary pillars on the borders of the land which was duly handed over to the railways. It is not disputed by the parties that the land in dispute lies within the boundary line which have been shown in the plans Ex. 2, Ex. 4 and Ex. 5.
8. It is, however, contended by the learned Counsel for the appellant that the boundary line shown in these plans is not the boundary of the railway land but this is a wall which was constructed by the PWD and it is even now repaired by the P.W. D. I have carefuly scrutinised all these plans and I find that the boundary land shown in the plans Ex. 2, Ex. 4 and Ex. 5 even today exists and separates the railway line and the nearby land from the adjacent land belonging to the Government There is nothing on the record to show that the boundary wall does not demarcate the railway boundary. There is no material on the record to show that it was a wall constructed by the P.W., D. and that it is repaired by the P.W.D Shri J.D. Mathur has categorically stated that the boundary wall from the Raikabagh palace upto the place where the disputed land is situate and even beyond that is the boundary line of the railway and entire land within this boundary line belongs to the railways.
9. Learned Counsel for the appellant further argued that even if the boundary wall is taken to be a wall demarcating the railway boundary, it cannot be said that the disputed land belonged to the railways because in his opinion there are some other properties like Sainik Piao and the Boys' hostel within the boundary wall which do not belong to the railways and, therefore, on the analogy of these two buildings, he urged that it must be taken that the disputed land also does not belong to the railways Mr. Bhansali appearing on behalf of the railway urged that it is clear from the plans themselves relied upon by the railways that the Sainik Piao and the Boys' Hostel were already there on the spot before the demarcation was made and sanction was accorded to the boundary line by the State Government, Jodhpur and, therefore, the presence of the Boys' hostel and the Sainik Plao cannot provide a handle to the defendants to raise an argument that the land in dispute should be treated as the Government land. On a careful perusal of these plans and the letters produced by the railways to support its claim, no doubt is left in my mind that the boundary line when drawn under the orders of the State Government, in the year 1927 covered within the railway boundaries these two buildingsn namely, Sainik Piao and the Boys' Hostel but it did not any where mention that the land in dispute belonged to the Municipal Council and as such Municipal Council had a right to alienate this land by issuing a Patta in favour of any one. It is true that Banshidhar and his transferees were the bonafide purchasers of this land but the position of the bonafide purchaser can be saved only when the property was purchased then from the ostensible owner. The sale of land within the boundary of the Railways by the Municipal Council cannot be said to be a sale by an ostensible owner. The Patta obtained from the Patta Committee of such a land which is obviously the the railway property cannot, in any manner strengthen the defendant's case to deprive the Union of India of their ownership and right and interest in the land Once the land was sanctioned by the State Government as the railway property and it lies within the railway boundary it became the railway property and as such the Municipal Council bad no authority to dispose of this land treating it as the land belonging to the Municipal Council, A person can transfer only those rights to others which he himself possessed. If no right of ownership vested in the Municipal Council in respect of the disputed land, it was not competent to transfer the ownership in the land to any one by issuing a Patta. In this way the issuing of a Patta in favour of Banshidhar was unauthorised and illegal and did not transfer any right of ownership in the land in this view of the matter Banshidhar who purchased the land from an unauthorised person could not have transferred any right or interest in the land to any other person and as such the defendant could not claim that on account of their being bonafide purchaser, their rights must be saved in the land. No rights as a matter of fact, were ever transferred to Shri Banshidhar and, therefore, sale by Banshidhar could not transfer any valid right in the land on the basis of a plea of being a bonafide purchaser from the ostensible owner The land definitely belongs 10 the railways and as such the claim to get the possession of the land from defendant or his legal representatives can safely be decreed by the Court. In this view of the matter I do not find any infirmity in the decree passed by the trial Court.
10. As regards the grant of decree in respect of mesne profits as claimed by the plaintiff the Court below has directed under Order 20 Rule 12(c) of Code of Civil Procedure that an inquiry shall be made to fix up the rent or mesne profits earned by the defendants from this land during the pendency of the suit and it is thereafter that final decree will be passed by the Court. The mesne profits shall be decreed from the date of the institution of the suit upto the date till the possession of the land is transferred to the plaintiff and that the decree shall be passed on the finding of the court below after determining the quantum of the rent that the land has fetched during the pendency of the suit It is, therefore, directed that the court below shall make inquiry regarding the claim of the plaintiff about the mesne profits and shall pass a decree according to the finding that shall be recorded by it.
11 In the result the appeal is dismissed. Looking to the circumstances of the case, I leave the parties to bear their own costs.