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2012 DIGILAW 540 (PAT)

Sarjugia Devi v. Rajendra Rai

2012-03-29

RAVI RANJAN

body2012
JUDGMENT Heard learned counsel for the petitioner and the State. 2. As prayed, learned counsel for the petitioner is permitted to make necessary correction in this writ application with regard to provision of law. 3. Petitioner is aggrieved by the order dated 09.09.2005 passed by the Sub Judge I, Hajipur in Execution Case No. 2 of 1994 as contained in Annexure 3, whereby a petition filed under section 4(c) of the Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as “the Act”) seeking declaration that the execution case would abate, has been rejected. 4. Learned counsel for the petitioner submits that the concerned execution case has arisen out of Title Suit No. 20 of 1989 which was filed by the plaintiff-respondent no. 1 for enforcement of contract and has been decreed in favour of the respondent no. 1 and the petitioner had been directed to execute the sale deed in his favour failing which the same was to be executed through the process of the court. However, since the sale deed has already been executed in 1997 itself in favour of the respondent no. 1, as the Title Appeal filed by the petitioner was also dismissed, the issue that has remained pending in the Execution Case is only for delivery of possession of the lands that have been transferred through the concerned sale deed in favour of the decree-holder. However, during the pendency of the execution case, a petition had been filed on behalf of the judgment-debtor-petitioner with a prayer to declare that the case would abate in view of the provisions as contained in Section 4(c) of the Act. However, the aforesaid application has been dismissed by the court concerned vide impugned order dated 09.09.2005. Learned counsel further submits that in view of the fact that there has already been notification under section 3 of the Act declaring the intention of the State Government to make scheme for consolidation of holdings and there has not been any notification as yet under Section 26-A declaring closure of the consolidation operation, the execution case would not be maintainable and should have been declared to have abated. Learned counsel for the petitioner has also contended that apart from above that the sale deed executed in favour of the respondent no. Learned counsel for the petitioner has also contended that apart from above that the sale deed executed in favour of the respondent no. 1 is itself a void document in view of the fact that the same has been executed without the sanction of the consolidation authority and, thus, delivery of possession cannot be effected in favour of the decree-holder on the strength of the aforesaid void document. It is lastly urged that in view of the language of the Section 4(c) the execution cases would also come under its ambit and thus, would abate. 5. Learned counsel for the State submits that the execution case was maintainable as the same would not abate in view of the fact that the lis between the parties has already been decided in the Title Suit and nothing remained to be adjudicated as, admittedly, the Title Appeal filed against the judgment and decree has also been dismissed. Therefore, there is no reason why the delivery of possession could not be ordered to be effected in the concerned execution case. From the pleadings as well as submissions made on behalf of the parties the chief issues emerging for determination are as under:- (i) Whether in view of the provisions as contained in section 4(c) of the Act the concerned execution case would abate ? (ii) Whether delivery of possession could not be effected in the execution case in view of the claim of the petitioner that no permission was obtained from the concerned Chakbandi authority as per the requirement under the provisions as contained in section 5 of the Act and, thus, the sale deed itself was void? Issue No. (i): 6. From the application under Section 4(c) of the Act filed before the court below that has been appended as Annexure 1 to this application, the details of the notification under section 3 of the Act do not appear to have been disclosed. However, even assuming that, at the time of execution of the sale deed or consideration of the execution case concerned, there was already a notification under section 3 of the Act, the question would arise as to whether even then the execution case would abate or not. For better appreciation, it would be appropriate to reproduce the relevant provision of section 4(c) of the Act as under:- “S. 4. For better appreciation, it would be appropriate to reproduce the relevant provision of section 4(c) of the Act as under:- “S. 4. xx xxx xxx (a) xx xx xxx (b) xx xx xxx (c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance of appeal, reference or revision, shall on any other being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated: xx xxx xxx” 7. From the perusal of the aforesaid provision, it appears that every proceeding for correction of records and every suit and proceeding with respect to declaration of right or interest in any land lying in the concerned area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act and which are pending before any court or authority whether of the first instance or of appeal, reference or revision would abate upon such order having been passed by the court below. 8. Coming to the case in hand, admittedly, Title Suit No. 20 of 1989 was filed by the plaintiff-respondent no. 1 for enforcement of contract for sale. The suit was decreed and Execution Case No. 2 of 1994 has been filed for execution of the decree. During the pendency of the execution case certain orders were passed on 25.04.1997, 23.05.21997 and 30.05.1997 which were challenged in Miscellaneous Case No. 9 of 1997. The aforesaid miscellaneous case was dismissed by a judgment dated 11.03.2005, a copy of which has been produced by the petitioner for perusal of this Court at the time of hearing of this application. From the impugned order it appears that when the petitioner did not turn up to execute the sale deed the same has been executed in favour of the decree-holder through the process of the court on 13.06.1997. From the impugned order it appears that when the petitioner did not turn up to execute the sale deed the same has been executed in favour of the decree-holder through the process of the court on 13.06.1997. From perusal of the provisions as contained in section 4(c) of the Act, it is apparent that only the proceeding for adjudication of right or interest pending either at the first instance or appeal or reference or revision would abate. In the case in hand, lis between the parties has already been finally decided in the concerned Title Suit and the execution case has been filed merely for execution of the decree that has also been upheld in appeal. Thus, no issue regarding right or interest remains to be decided in the execution case. It is also not the case of the petitioner that issue of abatement was raised either in the concerned title suit or even in the appeal preferred against the decree. 9. As stated above, the Title Suit concerned was filed for enforcement of contract for sale. Then another question would arise as to whether such suit itself would come within the mischief of section 4(c) of the Act. Such issue has been considered by a Division Bench of this Court in Sukhi Lal Sah v. Angrahit Jha, 1979 BBCJ, 566. After considering the relevant provision of the Act as well as section 54 of the Transfer of Property Act, the Division Bench has held that the suit would not abate. Section 54 of the Transfer of Property Act clearly lays down that a contract for the sale of immovable property is a contract that a sale of such property and shall take place on terms settled between the parties. It does not, of itself, create any interest in or change on such property. Thus, it has been held that since such suit does not relate to any right or interest in land, that would not abate. This Court is in respectful agreement with the aforesaid view of the Division Bench and, thus, this question is answered in negative. Having held so it can further be held that, in view of the fact that suit concerned itself would not have abated, there would be question of abatement of the execution case filed for execution of the decree passed in such suit. 10. Having held so it can further be held that, in view of the fact that suit concerned itself would not have abated, there would be question of abatement of the execution case filed for execution of the decree passed in such suit. 10. That apart, from the language of the provisions of section 4(c) of the Act also it would be apparent that the execution proceedings have been excluded from the ambit of the provisions as the same would clearly be applicable in suits or proceedings which have been filed at the first instance either for correction of records or for declaration of right or interest or adjudication of the right or interest inter se between the parties or of appeal or reference or revision. A Division Bench of this Court in Ramdhari Lath & anr. V. Kishan Lal Agrawal and ors. , 1985 Bihar Bar Council Journal, 256, has examined the issue and has held that the provision of section 4(c) of the Act would not apply to the execution proceedings as a suit is instituted or presentation of plaint and comes to an end when a decree is passed. Similar view has been taken by a Full Bench of this Court in Hari Mohan Thakur and others v. Mahendra Narain Chand and others, 1987 Patna Law Journal Reports, 88. Though the issue for determination was as to whether the proceeding of final decree in a partition suit would abate or not, the Full Bench of this Court has taken a view that the preliminary decree if not altered or modified or set aside on being challenged by any of the parties and, thus, has attained finality then the proceeding for preparation of final decree would be nothing but in nature of an execution of the said preliminary decree in order to effectuate its finality. It has further been held that once it is so held then the well settled principle that section 4(c) of the Act would not apply to execution proceeding would also be applicable in that case and, thus, the proceeding for preparation of final decree would also not abate. The relevant passage of the aforesaid decision of the Full Bench in Hari Mohan Thakur and others(supra) is reproduced as under:- “18. The relevant passage of the aforesaid decision of the Full Bench in Hari Mohan Thakur and others(supra) is reproduced as under:- “18. To conclude, on principle and precedent and on the language of the statute, it has to be held that in a suit for partition the proceeding subsequent to the preliminary decree (which has achieved finality in pursuance thereof for the preparation of the final decree are in the nature of execution proceeding and would, therefore, not be hit by section 4(c) of the Act and consequently they would not abate.” 11. Thus, from the aforesaid authoritative pronouncements, it is clear that the issue is no longer res integra and this Court would also be in respectful agreement with the views taken by the Division Bench in Ramdhari Lath & anr. (supra ) and the Full Bench in Hari Mohan Thakur and others (supra) and would hold that the concerned execution proceeding would not abate under section 4(c) of the Act. 12. Accordingly, the issue no (i) is answered in negative. Issue No. (ii) : 13. Learned counsel for the petitioner submitted that the sale deed concerned having been executed during the pendency of the consolidation operations and as the requirement of permission of the consolidation authority under section 5 of the Act has not been fulfilled that would be void and as a result, the delivery of possession on the strength of a void sale deed cannot be effectuated. 14. I do not find any force in the aforesaid submission raised on behalf of the petitioner also. Firstly, due to the reason that the petitioner is not sure about the fact that at the time of execution of the sale deed whether the consolidation operations were going on or not as it is not clear either from the averments made in the writ application or from the application that was filed before the court below (Annexure-1) as to what was the date of the notification under section 3 of the Act. Even assuming that the consolidation operations were going on during that period, in the opinion of this Court, the provisions of section 5 of the Act would not be attracted in this case. For better appreciation the relevant provision under Section 5 of the Act are quoted as under: “Section 5. No transfer without sanction. Even assuming that the consolidation operations were going on during that period, in the opinion of this Court, the provisions of section 5 of the Act would not be attracted in this case. For better appreciation the relevant provision under Section 5 of the Act are quoted as under: “Section 5. No transfer without sanction. – (1) After the date of publication of preparation of register of lands and statement of principles under sub-section (1) of section 10 no person shall transfer any land in the notified area by way of sale, gift, exchange or partition without the previous sanction of the Consolidation Officer and if the sanction is granted, such transfer or partition, as the case may be, shall be, subject to the rights and liabilities attached to the land under the scheme of consolidation prepared with respect to that area. (2) The provision of sub-section (1) shall take effect from the date of the notification under sub-section (1) of section 3 has been issued.” 15. From the language of section 5 of the Act itself it would appear that the provisions prohibit any person from transferring the land by way of sale deed or exchange or partition without previous sanction of the consolidation authority. However, this is not the situation in the case in hand. In the present case, there has been a decree under the Specific Relief Act directing the defendant to execute a sale deed in view of the decision rendered in favour of the decree-holder and that the decree is sought to be executed in the concerned execution case. The concerned sale deed has already been executed not by the defendant-petitioner but through the process of the court. Thereafter, the issue that has remained pending in the execution case is regarding the delivery of possession of the land in question. In Srimati Sunania Devi and another v. The Additional Member, Board of Revenue, Patna and others, 1981 Patna Law Journal Reports, 136, it has been held that even the power of the Collector to direct the concerned person to execute a sale deed in favour of the pre-emptor under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 would not be abrogated by the provisions as contained in section 5 of the Act. Thus, in my view, the power of a Civil Court of competent jurisdiction to direct in delivery of possession in favour of the decree-holder after execution of sale deed sale deed through the process of the court in compliance of a decree would also not be abrogated by the provisions of section 5 of the Act. I would reach to the similar conclusion also in view of the fact that I have already held that a suit for enforcing contract for sale or the execution proceeding would not come within the mischief of section 4(c) of the Act and that would mean that such suits would not abate and would only be decided by a civil court of competent jurisdiction ousting the jurisdiction of the consolidation authority. If the suit concerned could only be decided by a Civil Court then it would be difficult to hold that for execution of a sale deed in a proceeding for execution of a decree passed in such suits, permission of such ousted authority has to be taken by such court. That apart, from the judgment delivered in Miscellaneous Case No. 9 of 1997 which was produced by the learned counsel for the petitioner for perusal of this Court at the time of hearing of this application, it appears that the issue of sale deed to be executed was in question at that point of time, however, the petitioner has not raised this issue that the sale deed cannot be executed without getting permission from the consolidation authority. Subsequently, after the decision in the aforesaid Miscellaneous Case the concerned sale deed was executed through the process of court. In view of the aforesaid discussion, in my opinion, the word “person” expressed in the Section 5 of the Act would not be inclusive of the Court when such court would be entitled and empowered to proceed with the trial of such suits that would not fall within the mischief of Section 4 (c) of the Act. 16. Accordingly, I hold that the concerned sale deed executed through the process of court cannot be held to be void even in the absence of any permission sought and granted under Section 5 of the Act as the same was not required to be done by the executing court. 16. Accordingly, I hold that the concerned sale deed executed through the process of court cannot be held to be void even in the absence of any permission sought and granted under Section 5 of the Act as the same was not required to be done by the executing court. The provisions of section 5 do not abrogate the authority of the court to execute a decree passed in such suits that would not fall within the ambit of section 4(c) of the Act. Thus, this issues is also decided against the petitioner. 17. Having held so, I do not find any merit in this writ application and as such, the same is dismissed. However, there would be no order as to costs.