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Uttarakhand High Court · body

2007 DIGILAW 438 (UTT)

SHAFQUAT ALI v. VISHWA BALA GUPTA

2007-08-10

RAJESH TANDON

body2007
JUDGMENT Hon’ble Rajesh Tondon, J. Heard Alok Singh, Sr. Advocate, assisted by Sri Dharmendra Barthwal, counsel for the appellant. 2. By the present second appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 22.3.1995 passed by the Civil Judge, Roorkee in Civil Appeal No. 1 of 1994 Shafquat Ali Vs. Smt. Vishwa Bala Gupta and others. 3. Present second appeal was admitted on the following substantial question of law: “1. Whether the lower appellate court having held that in between the date of auction and its confirmation Nasarullah was not the owner of the property in dispute, the Sale deed executed by Nasarullah in favour of the plaintiff/respondent was null and void and ineffective. 2. Whether on the facts and circumstances of the case, the provisions of section 64 and 65 C.P.C. were inapplicable and the view taken by the court below to the contrary, is erroneous in law.” 4. Briefly stated, a suit was filed by the plaintiff-respondent no.1. being Original Suit No. 96 of 1985 Smt. Vishwa Bala Gupta Vs. 2. Whether on the facts and circumstances of the case, the provisions of section 64 and 65 C.P.C. were inapplicable and the view taken by the court below to the contrary, is erroneous in law.” 4. Briefly stated, a suit was filed by the plaintiff-respondent no.1. being Original Suit No. 96 of 1985 Smt. Vishwa Bala Gupta Vs. Shafquat Ali and others praying for the following relief: ßv½ fMxzh mn~?kks’k.kk oknuh ds fgr esa izfroknh uañ ds fo#) ikfjr dh tkdj ;g ?kksf’kr fd;k tkos fd okn la[;k 49 lu 80 btjk;s la[;k 11 lu 1981 egUr xksiky nkl cuke ul:Yyk U;k;ky; flfoy tt :M+dh esa izdV dfFkr uhyke fnukad 25-1-84 o mlds vk/kkj ij cuh lun uhyke fnukad 30-11-1984 bZñ ckcr lEifÙk en o voS/k “kwU; o vizHkkoh gSA c½ ;g fd ctfj;s fMxzh gqDe berukbZ nmokeh izfroknhx.k dks fuf’k) fd;k tkos fd og ewy okn la[;k 49 lu~ 1980 bZñ o fu’iknu la[;k 11 lu~ 1981 bZñ cmuoku Jh xksikynkl oknh fMxzhnkj cuke Jh ul:Yyk izfroknh en;u btyklh Jheku~ flfoy tt egksn; :M+dh ds vUrxZr ;k vU; fdlh izdkj ls izfroknh uañ 1 ds fgr esa tkjh fdlh dfFkr lUun uhyke ds vk/kkj ij vFkok fdlh vU; vk/kkj ij fdlh Hkh izdkj gS MkbZjsDVyh ;k bUMkbjsDVyh oknuh dh lEifÙk eqUnjtk en ¼v½ tSy ;k mlds fdlh Hkkx ij oknuh ds dCts o n[ky esa fdlh izdkj dh dksbZ n[kyvankth uk djsa vkSj uk djkosaA ¼c½ ;g fd [kpkZ eqdnek oknuh dh izfroknhx.k ls fnyk;k tkosA rQlhy lEifÙk en ¼v½ vkjkth uEcjh [kljk 535 feñ] jdcbZ 8 ch?ks 11 fcLos iq[krk ftudk ekStwnk uEcj 535@1 o 2 gS tks uEcj [kljk 535 ds dqy jdcs esa mÙkj if”pe o mÙkj iwjc dh rjQ ;kfnu dqy mÙkjh Hkkx esa ckds gS o e; uydwi o rkehjkr dejk vkfn tks fd uydwi ls lEcfU/kr gS] fLFkr xzke csMiqj] ijxuk o rglhy :M+dh] ftyk lgkjuiqjA rQlhy lEifÙk en ¼c½ vkjkth uEcjh [kljk 535 feñ] jdcbZ 4 ch?ks 5 fcLos 10- fcLokalh iq[krk fLFkr xzke csMiqj] ijxuk o rglhy :M+dh] ftyk lgkjuiqj ftls fd izfroknh uañ 1 mijksDr izdkj ls ctfj;s uhyke vnkyr [kjhnuk tkfgj djrk gSAÞ 5. According to the case of the plaintiff, Khasra No. 157 Minjumla 27 Bigha three biswa, Khasra 535 area 2 bigha and 19 biswa, 10 biswani and Khasra No. 535 area 14 Bigha two biswa and 10 biswani total area 44 bighas five biswa situate at Village Baidpur, Pargana and Tehsil Roorkee, District Saharanpur (Now Haridwar). The defendants no. 2, 3, one Jafar Ullah and Nurullah are recorded bhumidhar in possession of the aforesaid land. 6. In the year, 1978-79 in respect of the aforesaid property, there was a suit being Suit No. 7 of 1978 pending before the S.D.O., Roorkee and the share of the defendant no. 2 was to the extent of Khasra No. 535 4 Bigha, 5 Biswa and 10 Biswani. In Khasra No. 157 both defendants no. 2 and 3 have got share to the extent of 6 Bigha 10 Biswa 10 Biswani and 6 bigha, 12 biswa and 10 biswani respectively. It has been stated that the defendant no. 2 had taken a loan from Punjab National Bank, but he could not repay the same and as such recovery proceedings were initiated by the Tehsildar and the defendant no. 3 sold the entire land 8 Bigha 11 Biswa in favour of the plaintiff on a sum of Rs. 60,000/-. Since plot of the defendant no. 2 was attached and as such he has filed an application on 6.2.1984 for selling the portion of his share in Khasra No. 535 and also to pay the amount of loan which was payable by him. On 6.2.1984 Tehsildar has granted permission for selling Khasra No. 535. After the aforesaid permission, the plaintiff has also purchased the share of the defendants no. 2 and 3 vide sale deed dated 8.2.1984 from Sri Nasrullah and Amirullah on a sum of Rs. 64,000/- and has obtained the possession and has raised the constructions. The plaintiff thereafter on 8.2.1984 got her name mutated in the revenue records and the defendants have now no concern with any of the property. 7. According to the plaintiff, Khasra No. 535 was to be sold and no notice was ever given to the plaintiff under Order 21 Rule 54 of the Code of Civil Procedure. The plaintiff thereafter on 8.2.1984 got her name mutated in the revenue records and the defendants have now no concern with any of the property. 7. According to the plaintiff, Khasra No. 535 was to be sold and no notice was ever given to the plaintiff under Order 21 Rule 54 of the Code of Civil Procedure. The date for auction was fixed as 3rd April, 1982 and it was decided that if the amount is not recovered from Khasra No. 157 only then 535 area 4 Bigha 10 Biswa shall be sold. It appears that the auction had taken place on 25.1.1984 and was confirmed on 25.2.1984, which is wholly illegal. 8. It has been submitted in sub-paragraph (l) of Paragraph 15 that the defendant no. 2 was not the owner on the said date. Similarly defendant no. 3 was also not the owner on the said date. 9. So far as Khasra No. 535 is concerned, the same has already been sold by way of sale deed dated 8.2.1984 and as such it could not have been confirmed on 25.2.1984. 10. A written statement was filed by the defendant no. 1 where it has been stated that Nasarullah had taken some loan from one Mahant Gopal Dass and for recovery of the said amount of loan in Original Suit 49 of 1980 Gopal Dass Vs. Nasirullah was filed and the property was attached on 8.12.1981 and property was sold on 25.1.1984, which was confirmed on 25.2.1984 and the registry was made on 3.1.1985. 11. Nasirullah was filed and the property was attached on 8.12.1981 and property was sold on 25.1.1984, which was confirmed on 25.2.1984 and the registry was made on 3.1.1985. 11. On the pleadings of the parties, the trial Court has framed as many as nine issues to the following effect: ß1- D;k oknh fookfnr lEifÙk ds ekfyd vkSj dkfct crkSj laØe.kh; Hkwfe/kj gSa\ 2- D;k btjk; la[;k 11@80 dh dk;Zokgh rFkk dfFkr uhyke fnukafdr 25-1-84 ds vk/kkj ij lun uhyke fnukafdr 30-11-84 voS/k] “kwU; vkSj vizHkkoh gS tSlk fd okn i= dh /kkjk 15 esa dgk x;k gS\ 3- D;k oknh dk okn lEifÙk gLrkarj.k vf/kfu;e dh /kkjk 52 ls ckf/kr gS\ 4- D;k izfroknh la[;k 1] fookfnr lEifÙk ds usd uhfr ls ln~Hkkoh Øsrk gS\ 5- D;k okn fo”ks’k vuqrks’k vf/kfu;e dh /kkjk 34 ls ckf/kr gS\ 6- vuqrks’k 7- D;k fnukad 22-9-85 dks izfroknh uañ 1 dk dfFkr n[ky fn;s tkus ds fnu izfroknh la[;k 2 dk lEifÙk en c ij dCtk Fkk tslk fd okni= esa vfHkdfFkr gS\ ;fn ugha rks izHkko\ 8- D;k n[ky fnukad 22-9-85 fof/k fo#) o viw.kZ gS tSlk fd okni= esa vfHkdfFkr gS\ ;fn ,slk gS rks bldk izHkko\ 9- D;k fnukad 22-9-85 dks tks fookfnr lEifÙk ds [kñ uañ 535 esa izfrokn 1 us n[ky djuk vfHkdfFkr fd;k gS] og ekSds ij dkfcys “kuk[r ugha gS\ ;fn gk¡ rks izHkko\ 12. While deciding Issue No. 2 as to whether Execution Case No. 11 of 1980 on the basis of auction dated 25.1.1984 is illegal, a finding was recorded by the trial Court that the property was mortgaged with Punjab National Bank, therefore, the auction proceedings were wholly null and void. On 30.11.1984, Sanad Neelam was permitted, which was registered before the Sub Registrar on 3.1.1985. A finding has also been recorded by the trial Court that after obtaining the permission from the defendant no. 2 on 6.2.1984 (Paper No. 44-Ga) the plaintiff was granted the permission to sell the property only on the condition that the amount shall not be released from sale proceedings and shall be deposited in bank and the defendant no.2 has deposited the sale proceeds and these facts have not been brought to the notice of the authority concerned. 2 on 6.2.1984 (Paper No. 44-Ga) the plaintiff was granted the permission to sell the property only on the condition that the amount shall not be released from sale proceedings and shall be deposited in bank and the defendant no.2 has deposited the sale proceeds and these facts have not been brought to the notice of the authority concerned. A finding to that effect quoted below: ßiatkc uS”kuy cSad dk izfroknh la[;k 2 ij iSlk cdk;k FkkA izfroknh la[;k 2 us iatkc uS”kuy cSad ds gd esa fookfnr lEifÙk dh ckcr ,d iathÑr jguukek fnukad 28-8-79 lc jftLVªkj :M+dh ds ;gk¡ iathÑr djk;k D;ksafd iatkc uS”kuy cSad dk izfroknh lañ 2 ij :i;k cdk;k FkkA blfy;s iatkc uS”kuy csad izfroknh lañ 2 dh fookfnr lEifÙk dks cspuk pkgrk FkkA izfroknh la[;k us rglhynkj :M+dh ds ;gk¡ ,d izkFkZuk i= fnukad 6-2-84 dkxt la[;k 44 x fn;k] ftlds vk/kkj ij ;g izkFkZuk dh x;h fd fookfnr lEifÙk dks izfroknh la[;k 2 dks O;fDrxr :i ls cspus dh vuqefr nh tk;s] ftlls vPNh dher fey ldsA rglhynkj us 6-2-84 dks fookfnr lEifÙk dks izfroknh la[;k 2 }kjk O;fDrxr :i ls cspus dh vuqefr nhA ftlds vk/kkj ij oknuh us fookfnr lEifÙk dks [kjhnk vkSj cSukesa ds fnu ls gh mldk fookfnr lEifÙk ij dCtk gSA bl ckr dh iqf’V oknuh ds tujy ikoj vVksjuh mlds iq= v[kys”k pUæ xqIrk us vius c;ku ls fl) fd;k gS rFkk oknuh dh rjQ ls dgk x;k gS fd D;ksafd fookfnr lEifÙk iatkc uS”kuy cSad ds ikl iathÑr jgu Fkh] blfy, izfroknh la[;k 1 dks uhykeh esa fookfnr lEifÙk dks ysus dk dksbZ vf/kdkj ugha Fkk D;ksafd ;g iathÑr jgu Fkh tks fd ,d ifCyd uksfVl gS ftlds lEcU/k esa izfroknh la[;k 1 lc jftLVªkj dk;kZy; tkdj mldk irk yxk ldrk FkkA D;ksafd ;g jgu fookfnr lEifÙk dh ckcr Fkk ftl fookfnr lEifÙk dks oknuh us [kjhnk mldk iSlk izfroknh la[;k 2 dks vnk dj fn;kA iathÑr jguukek ds gksrs gq, izfroknh la[;k 1 dks fnukad 25-1-84 ds uhyke esa dksbZ gd gkfly ugha gqvkA izfroknh la[;k 1 dk ;g drZO; Fkk fd og bl jguukes ds ckjs esa U;k;ky; dks crkrk ijUrq ,slk izfroknh la[;k 1 dh vksj ls ugha fd;k x;kA cfYd ;g ckr izfroknh la[;k 1 }kjk fNik;h x;h gSA ;fn bl ckr dk U;k;ky; dks irk py tkrk rks fnukad 25-1-84 fookfnr lEifÙk dh uhykeh ugha gqbZ gksrh gSA blds foi{k esa izfroknh la[;k 1 us vius mÙkj i= esa dgk gS fd fookfnr lEifÙk 8-12-81 dks dqdZ gqbZ vkSj 25-1-84 dks uhyke gqbZ vkSj ;g uhyke 25-2-84 dks iq’V gqvk vkSj 30-11-84 dks lun uhyke rS;kj fd;k x;k ftldh jftLVªh 3-1-85 dks jftLVªkj dk;kZy; esa gqbZ rFkk dgk fd QnZ dqdhZ ij veh:Yyk ds gLrk{kj crkSj xokg gq,A ul:Yyk us edln fMØh dks Qksr djus dh xjt ls oknuh ds gd esa dfFkr QthZ cSukek fd;kA uhykeh dh ckcr izfroknh la[;k 2 o 3 rFkk oknh dks irk Fkk okn /kkjk 52 lEifÙk gLrkUrj.k vf/kfu;e ls ckfèkr gS rFkk oknuh ds gd esa fd;k x;k cSukek voS/k “kwU; gS ftlls oknuh dks dksbZ vf/kdkj izkIr ugha gq,A tc ul:Yyk us fookfnr lEifÙk dks oknuh dks cspk rks mldks cspus dk dksbZ vfèkdkj izkIr ugha FkkA dqdhZ dh dk;Zokgh gLc ea”kk dkuwu b”rgkj gqbZA oknuh dk ;g dguk fd uhyke dkuwu ds vuqlkj ugha gqvk xyr gS rFkk rglhynkj egksn; us fnukad 6-2-84 dks cSad dks Hkwfe cspus dh tks vuqefr nh] og fcYdqy xyr gS D;ksafd lEifÙk 1981 esa flfoy tt ds ;gk¡ ls dqdZ gks pqdh FkhA rglhynkj dks ,slk dksbZ vf/kdkj ugha Fkk ftlds leFkZu esa izfroknh la[;k 1 us vius c;ku crkSj Mh-MCyw- 2 djk;k rFkk vius c;ku }kjk mDr dh iqf’V djuh pkghAÞ 13. Further finding has been recorded that there was an order i.e. first Khasra No. 157 has to be sold and if the decree is not fulfilled then Khasra No. 535 can be sold, but amin has failed to abide by the order and he has sold both the plots collectively. 14. So far as Issue No. 3 with regard to auction proceedings whether the same is barred by Section 52 of the Transfer of Property Act is concerned, a finding was recorded that the property in dispute was given to the Punjab National Bank by way of registered mortgage deed and this fact was in the knowledge of the defendant no. 1 that the property is in charge of the Punjab National Bank and on 6.2.1984, permission was obtained by the defendant no. 2 from Tehsildar, Roorkee and issue was decided in favour of the plaintiff on the ground that the sale proceedings were not barred by Section 52 of the Transfer of Property Act. 15. Other Issues (Issues No. 1, 6, 7, 8 and 9) have also been decided in favour of the plaintiff. 16. In view of the aforesaid, the suit of the plaintiff was decreed on 24.11.1993. 17. The defendant, who was the auction purchaser went in Appeal. The appeal was registered as Civil Appeal No. 1 of 1994. The appellate Court has also dismissed the Appeal. Relevant portion of the findings recorded by the appellate Court is quoted below: ßtgk¡ rd okn cSad ds fopkjk/khu gksus ds fl)kUr dk mYys[k fd;k x;k gS okn ewy :i ls fookfnr lEifÙk ds fo’k; esa ugha Fkk dsoy mls xksiky nkl ds _.k ds lEcU/k esa fu’iknu esa “kkfey fd;k x;k Fkk vkSj rc bu ifjfLFkfr;ksa esa pwafd okn fookfnr lEifÙk ds fo’k; esa ugha Fkk lEifÙk vUrj.k vf/kfu;e dh /kkjk 52 ds izkfo/kku iz;qDr gksuk ugha ekuk tk ldrk gSA orZeku ekeys dh ifjfLFkfr;ksa esa flñizñlañ dh /kkjk 64 ,oa 65 ds izkfo/kku iz;qDr gksuk ugha ekuk tk ldrk gS D;ksafd tks uhykeh vihykFkhZ ds i{k esa gqbZ og fcuk mfpr dqdhZ ds vkns”k ds FkhAÞ 19. Counsel for the appellant has submitted that in view of Sections 64 and 65 of the Code of Civil Procedure, the private alienation of property after attachment was void. Sections 64 and 65 of the Code of Civil Procedure are quoted below: “64. Counsel for the appellant has submitted that in view of Sections 64 and 65 of the Code of Civil Procedure, the private alienation of property after attachment was void. Sections 64 and 65 of the Code of Civil Procedure are quoted below: “64. Private alienation of property after attachment to be void- Where an attachment has been made, any private transfer or delivery of the property attached or of any interest there in and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. Explanation - For the purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets. 65. Purchaser’s title – Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. 20. Aforesaid section 64 is not applicable in the present case as the plaintiff has sought the permission from Tehsildar on 6.2.1984 and the amount was deposited with the Bank and once the permission has been granted it is well known maxim that an act of the court shall prejudice no man. 21. Relying upon Raj Kumar Dey v. Tarapada Dey (supra) and Gulsharan Singh v. New Delhi Municipal Committee (supra) in Mohammed Gazi v. State of M.P. (2000) 4 SCC 342, the Apex Court has observed as under: “7. In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit – an act of the court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia – the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does it its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The law itself and its administration is understood to disclaim as it does it its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey (1987) 4 SCC 398 and Gulsharan Singh v. New Delhi Municipal Committee (1996) 2 SCC 459.” 22. Relying upon the aforesaid three judgment in Rajesh Darbar and others Vs. Narasingrao Krishnaji Kulkarni and others (2003) 7 SCC 219, it has been observed as under: “There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the court. There is a well-recognized maxim of equity, namely, actus curiae neminem gravabit which means an act of the court shall prejudice no man. This maxim is founded upon justice and goods sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit and impossibilia i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey (1987) 4 SCC 398, Gulsharan Singh v. New Delhi Municipal Committee (1996) 2 SCC 459 and Mohd. Gazi v. State of M.P. (2000) 4 SCC 342. 23. In view of the findings that the permission was obtained from Tehsildar and the sale proceeds in favour of the plaintiff was fully valid, I find no infirmity in the judgment and decree passed by the two courts below and no substantial question of law arises so as to interfere under Section 100 of the Code of Civil Procedure Code. 24. In view of the above, the appeal is dismissed. No order as to costs.