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2005 DIGILAW 83 (CHH)

VIMLA BAI v. KAMTA PRASAD SHIRWAS

2005-02-25

DHIRENDRA MISHRA

body2005
JUDGMENT 1. This second civil appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants/defendants against the concurrent finding of the learned Courts below and by which the suit for declaration possession and injunction of respondents No I & 2/plaintiffs has been decreed. (Parties hereinafter shall be referred to as per their description in the trial Court.) 2. The suit instituted by the plaintiffs for declaration that plaintiffs No. 1,2 and defendant No.1 each have 5/16th interest whereas defendant No.2 has 1/16th interest over the suit property and defendant No.1. alone, can not alienate the suit property and for permanent injunction restraining defendant No.1 from alienating the suit property to anyone and in the alternative if defendants No.3, 4 and 4-A are found in possession of the suit property, the plaintiffs be granted the decree of possession and if defendants No.3, 4 and 4-A have -raised any construction, the same be removed at their own expenses an plaintiffs be put in possession of the suit plot. 3. The learned trial Court decreed the suit declaring that the plaintiffs and defendant No.1 each have 5/16th interest and defendant NO.2 has 1/16th interest over the suit property and defendant no. 1 has been restrained from alienating the suit property and defendants No.3, 4 and 4-A have been directed to remove their construction at their own expenses within two months and put the plaintiffs in possession of the suit plot. 4. The finding of the trial Court is that the suit property belonged to Sukhu Ram and on his death in the year 1981, the plaintiffs and defendant No.1 inherited 5/16th interest while defendant No.2 1/16th interest. The further finding is that defendant No.1 was not the Karta of the family and has not alienated the suit property as the Karta for legal necessity and the alienation by defendant No 1 was not with the consent of the members of his family and further that the agreement of Ex. D/1 and D/3 are not the contract agreements for sale. Even otherwise, the above documents have not been proved either by examining the executant of the sale deed or by examining the witnesses and accordingly, the documents of Ex. D/1 and D/3 are not the contract agreements for sale. Even otherwise, the above documents have not been proved either by examining the executant of the sale deed or by examining the witnesses and accordingly, the documents of Ex. D/1 to D/5 being the contract agreements without any value have been held to be illegal and that defendants No. 3,4 and 4-A are not the bona fide purchaser of value and on this reason, defendants No. 3,4 and 4-A can not protect their possession under Section 53-A of Transfer of Property Act. 5. Learned first Appellate court dismissed the appeal preferred by the defendants and confirmed. the judgment passed by the trial Court by recording a finding that defendants have failed to prove due execution of the contract agreement of Ex. D/1 and D/3 and as such they are illegal and ineffective and in the absence of the agreement, defendants No.4 and 4-A can not protect their possession under Section 53-A of Transfer of Property Act particularly because the defendants have failed to prove their readiness and willingness to perform their part of the contract. 6. Learned counsel for the defendants has challenged the above findings on the ground that plaintiffs No. 1, 2 and defendants No. 1,2 are the members of the coparcenary family and further considering the fact that defendant No. 1 having limited share in the suit property, has put in possession defendants No.4 and 4-A over the suit premises, the decree of possession can not be passed against the defendants as they are bona fide purchaser for the value of the suit property and their possession is protected under Section 53-A of the T.P. Act. Learned counsel further argues that since it has been held by the court below by the impugned judgment that defendant No.1 has put the defendants in possession of the suit property, they are entitled by 5/16th share of the suit property, the defendants were in any case entitled for protection of possession of the whole suit property to the plaintiffs is illegal. He further submits that as per provisions of Order 12 Rule 6 of the C.P.C, taking into consideration the admission of defendant No.1 and his joint written statement that he has entered into an contract agreement for sale of the suit property for value and put the defendants in possession, the decree ought to have been drawn under Order 12 Rule 6 of the C.P.C. and placed his reliance on the submission of paragraph 12 and 13 of the judgment in the matter of Uttam Singh Dugal and Co. Ltd. Vs. Union Bank of India. 7. I have heard learned counsel for the defendants on admission and stay and gone through the pleadings of the respective parties and concurrent findings of both the Court below. 8. The arguments put forth by the defendants have been extensively dealt with by both the Courts below and the same have been rejected on the ground that though defendant No.1 in his joint written statement has admitted the execution of documents of Ex. D/1 and D/3 and subsequent affidavit of Ex. D/2, D/4 and D/5 but the documents of Ex. D/1 and D/3 can not be termed as contract agreement for sale and the same do not fulfill the criteria for agreement for sale and the separate affidavits sweared on the same day, cannot make the above documents as contract agreement for sale. The Courts below have also recorded a finding on the basis of objective analysis of the evidence available on record that the documents of Ex. D/1 and D/3 have not been proved by the defendants by examining the executant of the above documents and the witnesses of the said document. For these reasons, the above documents are of no help to the defendants and for the purposes of claiming protection under Section 53-A of the T.P. Act. The defendant claiming protection is required to establish that there was a contract agreement for sale of immovable property in writing and the contract agreement should be for a consideration and the said contract agreement should be executed either by the transferor or his agent and the contract agreement should be such by which the property transferred can be definitely ascertained and the above contract has been partially acted upon and the transferee is ready and. willing to perform his part of the contract. However, these elements are lacking in the documents of Ex. willing to perform his part of the contract. However, these elements are lacking in the documents of Ex. D/1 & D/3 and on the above ground the Courts below have recorded a finding that defendants were not entitled for protection under Section 53-A of the T.P. Act. 9. Apart from this, it is a well settled law that if the purchaser has obtained possession on the basis of a contract for sale entered into by one of the coparcener, the non-alienating coparceners are competent to sue for the recovery of the possession of the suit property for the benefit of the joint family including the vender and a decree of possession can be passed against the purchaser. In the case of Ramdayal Vs. Manaklal the full Bench of M.P. High Court while dealing with the right of the purchaser has held that where suit land is transferred by one of the coparceners by registered sale deed and the purchaser has been put in possession, a suit for recovery of possession by the non-alienating coparcener is maintainable. However, in appropriate cases, the courts after passing decree of possession against the purchaser/defendant may put a condition that the decree for possession shall be stayed for a specified period in the meanwhile if the purchaser brings a suit for general partition against the plaintiffs, then stay should continue until the disposal of that suit. However, it has been held in paragraph 4 of the judgment that the above direction is discretionary with the Court and can be given only in suitable circumstances and after further discussions, it has been held that where the coparcener has alienated the property in excess of his own share and has put the alienee in possession thereof, the alienee can not claim that whole of the property should be allotted to the share of his alienor and in such a case, no equity requires that the purchaser should be allowed to retain possession of the property till his right is worked out in a partition suit. 10. Now applying the above judgment which has been referred by the defendants before the first Appellate Court in support of the cases of the present appellants/defendants, it would be evident that even if the documents of Ex. D/1 and D/3 coupled with the document of Ex. 10. Now applying the above judgment which has been referred by the defendants before the first Appellate Court in support of the cases of the present appellants/defendants, it would be evident that even if the documents of Ex. D/1 and D/3 coupled with the document of Ex. D/2, D/4 and D/5 are considered to be an agreement for sale as argued by the learned counsel for the appellants/defendants, in that case also by this agreement defendant No.1 as alienated the whole property and put the appellants/defendants in possession of the suit property, though, he was entitled for only 5/16th share and thus, he can not be allowed to remain in possession of the suit property till the partition is effected by the mates of bounds. The next contention of the appellant/defendants that as per provision of Order 12 Rule 6 of C.P.C., both the Court below ought to have partially decreed the suit on the basis of admission of defendant No.1, is without any force as there is no admission by the plaintiffs that defendant No. 1 has alienated the suit property with their consent and even the execution of Ex. D/1 to D/3 has been denied in their written statements and provisions of Order 12 Rule 6 are not applicable in the present case. 11. As a result, I am of the opinion that there is no substantial question of law involved for adjudication of this second appeal and the same deserves to be dismissed and is accordingly dismissed. 12. However, in the facts and circumstances of the case, these shall be no order as to costs. 13. With the aforesaid observations, M.C.P. No. 132/2004 and I.A. No. 2028/2004 also stand disposed of. Appeal Dismissed.