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2008 DIGILAW 754 (MP)

Dharampal v. Hari Chandra @ Harish Chandra

2008-06-24

S.K.GANGELE

body2008
ORDER Gangele, J. -- 1. Petitioners-plaintiffs filed this petition challenging the order Annexure P-11 dated 24.11.2000, whereby the application filed by the plaintiffs under Order 38 rule 5 of CPC has been rejected. 2. The plaintiffs filed a civil suit for declaration, injunction, recovery of possession and mesne profits with regard to land situated at Gwalior named as Tekam Bagh (in brevity "suit property"). It has a long history of persons who got the ownership and also litigation. Initially it was a property of Jagir managed by Madhav Rao who had two sons namely Bapu Saheb and Yashwant Rao, Yashwant Rao was the elder son, hence he became owner of the Jagir property and thereafter when he died in the year 1924 his wife Janki Bai became owner of the property. She executed a sale-deed of the suit property in favour of Dharmawati Bai on 10.1.1963. Thereafter Dharmawati sold it to Purendra Kumar by another sale-deed on 27.12.1968. Then Purendra Kumar sold it to Dharampal and Rajendra Syal by two sale-deeds dated 13.7.1981 and 20.7.1981. The present petitioners-plaintiffs got the property by way of aforesaid sale-deeds. One Babu Saheb filed a suit in the year 1961 which was registered as Civil Suit No.25-A/1962 claiming himself to be landlord for recovery of rent and that suit was dismissed. 3. Thereafter one Shiv Singh Temak also filed a suit for the property which was registered as Civil Suit No.5-A/1964. It was decreed on 14.9.1974. Thereafter first appeal was filed before the High Court which was registered as FA No.1/1975. During pendency of the appeal the plaintiffs of the present suit were impleaded as appellants in place of Dharampal because they purchased the property by registered sale-deeds. Harichand was also permitted as conductor of the suit in place of Shiv Singh. The appeal was allowed and suit filed by Shiv Singh was dismissed. Thereafter LPA No.55/1989 was filed which was also dismissed on 2.9.2005. Thereafter SLP was filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court granted leave and it was registered as Civil Appeal No.4361/2007. The Hon'ble Supreme Court dismissed the appeal by holding that Janki Bai was the owner of the suit property and Shiv Singh had no right in the suit property. 4. Shiv Singh executed an agreement in the year 1967 to sell the property in favour of Harichand. The Hon'ble Supreme Court dismissed the appeal by holding that Janki Bai was the owner of the suit property and Shiv Singh had no right in the suit property. 4. Shiv Singh executed an agreement in the year 1967 to sell the property in favour of Harichand. When he failed to perform his act then Harichand filed a suit for specific performance of contract, which was registered as 15-A/1975. The trial Court decreed the suit, no appeal had been filed against the judgment of the trial Court. In the aforesaid civil suit Harichand was the plaintiff and Shiv Singh was the defendant. 5. The petitioners-plaintiffs filed the present suit in the year 1998 for declaration, possession and mesne profits. It is also an admitted fact that the plaintiffs are not in possession over the suit property and the defendants are in possession over the suit property. The petitioners-plaintiffs also filed an application before the trial Court under Order 38 rule 5 of CPC that the defendants published an advertisement for sale of some other property which was of the ownership of the defendants and the property be attached because the plaintiffs have strong case for mesne profits. That application has been dismissed by the trial Court vide impugned order dated 24.11.2000. The plaintiffs claimed mesne profits at the rate of Rs.30,000/- per month. 6. The learned counsel for the petitioners-plaintiffs has submitted that the plaintiffs have become owner of the suit property in accordance with the judgment of the Hon'ble Supreme Court, hence they have a strong case for mesne profits. The defendants are trying to sell the property which is other property of their ownership. Even if a decree be passed by the trial Court then the plaintiffs would not be entitled to execute the decree. Hence, the property of the defendants has to be attached. Contrary to this learned counsel for the defendants submitted that they have been in possession of other suit property since 1967. The plaintiffs have no prima facie case, they have not paid the proper court fee and the trial Court has ordered to deposit the proper court fee to the plaintiffs. The mesne profit have not been determined even though the suit is for declaration of title. It is barred by limitation. In such circumstances, the trial Court has rightly rejected the application of the petitioners as stated above. 7. The mesne profit have not been determined even though the suit is for declaration of title. It is barred by limitation. In such circumstances, the trial Court has rightly rejected the application of the petitioners as stated above. 7. It is clear from the facts that the litigation went upto the Hon'ble Supreme Court. The Hon'ble Supreme Court in Civil Appeal No.4361/2007, reported in (2007)8 SCC 493 (Harichand v. Dharampal Singh Baba and others), has held that Janki Bai was the owners of the suit property. It has further held by the Hon'ble Supreme Court that Shiv Singh had no right in the suit property relevant findings of the Hon'ble Supreme Court are as under : "7. So far as the present suit is concerned, this was wholly misconceived and engineered by the plaintiff on the basis of a so-called family settlement. In fact, the rights of the parties having matured in Civil Suit No.25 of 1962 wherein the High Court took the view in second appeal that the position of Bapu Saheb Temak was nothing but of the manger and in that connection they relied on the regency order dated 17.11.1931 and indicated that Bapu Saheb Temak was never appointed as a Manager and, therefore, so far as the right of Smt. Janki Bai was concerned, the same stood affirmed. The subsequent suit brought by Shiv Singh was totally misconceived as on the basis of the so-called family settlement once the rights of the parties have matured by operation of the decision of the High Court, there was no occasion for the present suit being filed on the basis of the so-called family settlement. When the land did not belong to Bapu Saheb Temak or his son, Shiv Singh, there was no occasion for the so-called family settlement. Family settlement could only be if one has lawful right over that property and then alone family settlement could be executed. When there was no lawful right of the parties over the property, there was no occasion for the suit being filed on that basis. Therefore, in our opinion, the view taken by the High Court appears to be correct that Janki Bai was the owner of the property. When there was no lawful right of the parties over the property, there was no occasion for the suit being filed on that basis. Therefore, in our opinion, the view taken by the High Court appears to be correct that Janki Bai was the owner of the property. When Bapu Saheb Temak was only the manger of the property and the real owner was Janki Bai, the suit filed by Shiv Singh was rightly dismissed in first appeal by the High Court setting aside the judgment and decree passed by the trial Court." In the aforesaid proceedings in the first appeal before the High Court, Harichand was permitted as conductor of the case. He contested the case upto the Supreme Court. The same Harichand is the defendant in the present case. He is said to get the right in the property on the basis of agreement which is said to be executed by Shiv Singh when the Hon'ble Supreme Court has already held that Shiv Singh had no right in the suit property then certainly prima facie in my opinion, the petitioners have right of ownership in the suit property. Admittedly defendants are in possession over the suit property. It is a land of 36,000 sqft. having two rooms house. It is situated at Gwalior. Hence prima facie it cannot be said that the petitioners-plaintiff have no case for mesne profit. The respondents have been enjoying the benefit of possession for a number of years. 8. The Hon'ble Supreme Court reported in 2008(1) MPHT 426 (SC) (Raman Tech. and Process Engineering Co. and another v. Solanki Traders), has held as under with regard to exercising of powers under Order 38 rule 5 of the CPC : "5. The power under Order 38 rule 5, CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the rule. The purpose of Order 38 rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. It should be used sparingly and strictly in accordance with the rule. The purpose of Order 38 rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realized by unscrupulous plaintiffs, by obtaining orders of attachment before judgment and forcing the defendants for out of Court settlements, under threat of attachment. 6. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. Shifting of business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the Court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him, before power is exercised under Order 38 rule 5, CPC. Courts should also keep in view the principles relating to grant of attachment before the judgment." As per the principle of law laid down by the Hon'ble Supreme Court, in my opinion petitioners-plaintiffs have proved that they have substantive right in their favour and prima facie defendants are enjoying the benefits of the suit property. The defendants further published an advertisement with regard to sale of other land, which is of the ownership of the defendants. Copy of the advertisement has been filed as Annexure P-7. In such circumstances, it is necessary to attach some property of the defendant or he may furnish some security to the satisfaction of the trial Court. Looking to the facts and circumstances of the case it would be just and proper that defendants be directed to furnish a security of Rs.10 lacs before the trial Court. Petition is disposed of with the following directions: (i) The impugned order passed by the trial Court Annexure P-11 dated 24.11.2000 is hereby quashed. Looking to the facts and circumstances of the case it would be just and proper that defendants be directed to furnish a security of Rs.10 lacs before the trial Court. Petition is disposed of with the following directions: (i) The impugned order passed by the trial Court Annexure P-11 dated 24.11.2000 is hereby quashed. (ii) The application filed by the petitioners-plaintiffs under Order 38 rules 9 and 5 of CPC is hereby allowed with the direction that the legal representatives of defendants-respondents furnish security of Rs.10 lacs to the satisfaction of the trial Court within a period of three months from today. (iii) Looking to the facts of the case that the litigation is pending for a long period, the trial Court is directed to complete the trial of the suit within a period of one year from the receipt of the copy of the order. It is hereby clarified that the observations made by this Court in the order are prima facie and the learned trial Judge shall decide the case finally on the merits and evidence of the case without influencing the observation made in this order. No order as to cost.