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2010 DIGILAW 481 (PNJ)

Harpal Singh v. State Of Punjab

2010-01-20

L.N.MITTAL

body2010
Judgment L.N.MITTAL, J. 1. Harpal Singh has approached this Court by way of instant second appeal having been unsuccessful in both the courts below. The plaintiff filed suit alleging that he is owner in possession of the suit house measuring 10 marlas, having purchased it from defendant no.3 Jarnail Singh, vide registered sale deed dated 16.05.2001, for Rs.2,00,000/-. Defendants no.1 and 2 (State of punjab and Collector-cum- Deputy Excise and Taxation Commissioner) got this property attached vide Report No.484 dated 18.07.2001 i. e. after purchase of the house by the plaintiff and therefore the said attachment is null and void. The plaintiff sought declaration that he is owner in possession of the suit house and the attachment is null and void. The plaintiff also sought permanent injunction restraining the defendants from auctioning the suit house. Defendants no.1 and 2, in their written statement, inter alia pleaded that defendant no.3 was a liquor contractor and a sum of Rs.48,53,650/- was due from defendant no.3 to defendants no.1 and 2 as on 31.03.2002 and at the time of filing of written statement, a sum of Rs.47,61,400/- was due from defendant no.3. After declaring defendant no.3 to be defaulter, his property including the suit house was attached according to law for recovering the due amount as arrears of land revenue. Sale deed dated 16.05.2001 was executed by defendant no.3 in collusion with the plaintiff to avoid payment of the due amount. The said sale deed is illegal and null and void. 2. Learned Civil Judge (Senior Division), Muktsar, vide judgment dated 29.09.2005, dismissed the suit of the plaintiff. First appeal preferred by the plaintiff has also been dismissed by learned Additional District Judge, Muktsar, vide judgment and decree dated 16.09.2006. Feeling still aggrieved, the plaintiff has approached this Court by way of instant second appeal. 3. I have heard learned counsel for the parties and perused the case file. 4. First appeal preferred by the plaintiff has also been dismissed by learned Additional District Judge, Muktsar, vide judgment and decree dated 16.09.2006. Feeling still aggrieved, the plaintiff has approached this Court by way of instant second appeal. 3. I have heard learned counsel for the parties and perused the case file. 4. Learned counsel for the appellant vehemently contended that plaintiff is bona fide purchaser of the suit house for consideration as the plaintiff purchased it from defendant no.3 vide sale deed dated 16.05.2001, when it was free from any encumbrance and the subsequent attachment of the property vide Report dated 18.07.2001 at the instance of defendants no.1 and 2 is null and void and cannot effect the rights of the plaintiff because the amount due to defendants no.1 and 2 is recoverable from defendant no.3. 5. The aforesaid contention, although apparently very attractive, cannot be accepted. Defendants no.1 and 2 have specifically pleaded collusion between plaintiff and defendant no.3 to avoid payment of amount due from defendant no.3 to defendants no.1 and 2. Collusion by its very nature is a secret arrangement and direct evidence for the same is rarely available. Collusion has to be inferred from circumstances. In the instant case, the plaintiff claims himself to be bona fide purchaser of the suit property for consideration of rs.2,00,000/-. However, perusal of the sale deed dated 16.05.2001 in favour of the plaintiff reveals that the suit house was allegedly sold to the plaintiff for Rs.2,00,000/-, out of which Rs.50,000/- had already been paid by the plaintiff to defendant no.3, as per recital in the sale deed, whereas the balance sale consideration of Rs.1,50,000/- was to be paid by plaintiff to defendant no.3 at the time of registration of the sale deed. Admittedly however, not a single penny was paid by the plaintiff to defendant no.3 at the time of registration of sale deed. It thus emerges that although the house was allegedly sold for Rs.2,00,000/-, but the plaintiff, even as per his own version, and even as per recital in the sale deed, paid Rs.50,000/- only to defendant no.3. Admittedly however, not a single penny was paid by the plaintiff to defendant no.3 at the time of registration of sale deed. It thus emerges that although the house was allegedly sold for Rs.2,00,000/-, but the plaintiff, even as per his own version, and even as per recital in the sale deed, paid Rs.50,000/- only to defendant no.3. The very fact that Rs.1,50,000/-, being 3/4th of the sale price, was not paid at all, would lead to the irresistible conclusion that the sale deed in question is a sham transaction entered into by defendant no.3 in collusion with plaintiff to evade payment of the amount due from defendant no.3 to defendants no.1 and 2. This inference of collusion between plaintiff and defendant no.3 gets strength from the fact that defendants no.1 and 2 had written several letters to the revenue authorities prior to sale deed dated 16.05.2001 for attachment of property of defendant no.3 including the suit house. It is thus apparent that defendant no.3 was aware that the suit house was to be attached and sold for recovery of amount due from him to defendants no.1 and 2 and consequently, defendant no.3 managed to execute sale deed in favour of the plaintiff before entry of attachment was made in the revenue record. In view of the aforesaid, I have no hesitation in concluding that plaintiff is not bona fide purchaser of the suit house for consideration. On the other hand, sale deed dated 16.05.2001 in favour of the plaintiff is a result of collusion between plaintiff and defendant no.3 and the said sale is a sham transaction. The finding of both the courts below to this effect does not suffer from any illegality. 6. Learned counsel for the appellant contended that procedure provided for recovery of arrears under Sec.36 of the Punjab Excise Act, 1914 has not been complied with. It was also argued that this is the only residential house of plaintiff and therefore, the same cannot be attached in view of Sec.60 of the Code of Civil Procedure. It was also contended that auction notice relates to plot and not to house constructed thereon. It was also argued that this is the only residential house of plaintiff and therefore, the same cannot be attached in view of Sec.60 of the Code of Civil Procedure. It was also contended that auction notice relates to plot and not to house constructed thereon. Attention of the Court was also invited to Sections 67 to 75 of the Punjab Land Revenue Act and it was contended that without attachment of the house, the same cannot be sold and the house has not been attached as only plot has been attached. Reliance has been placed on a Division Bench judgment of this Court in the case of Mohinder Singh vs. The Estate Officer, Chandigarh and others reported as Vol. LXXIV 1972 The punjab Law Reporter 1009, wherein it was held that sale of property without attachment is without jurisdiction. It was also contended that there are various modes of recovery of arrears of land revenue under the Punjab Land Revenue Act and attachment and sale of immovable property should be the last resort. 7. I have carefully considered the aforesaid contentions, but the same lack any merit. Firstly, the said contentions are without the foundation of pleadings. Admittedly, no such plea has been raised in the plaint by the plaintiff and therefore these contentions cannot be raised for the first time in second appeal. Secondly, these contentions cannot be advanced at the hands of plaintiff because only defendant no.3, from whom the amount is recoverable, can raise such pleas. 8. In view of the aforesaid discussion, I find no merit in the instant second appeal, which is accordingly dismissed.