Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 2059 (RAJ)

Nagarpalika Mandal, Sri Dungargarh v. Bhanwarlal

2013-11-20

MAHENDRA MAHESHWARI

body2013
JUDGMENT Hon'ble MAHESHWARI, J.—Aggrieved by the judgment and decree dated 14.10.2005 passed by Additional District Judge No.2, Bikaner (for short "the Appellate Court" hereinafter) in Appeal Decree No. 01/2003 (Municipal Board, Sri Dungargarh vs. Bhanwarlal), appellant has preferred this second appeal u/Sec. 100 of the Civil Procedure Code, 1908, whereby the appeal filed by the appellant/defendant against judgment and decree dated 25.11.2002, passed by the Civil Judge (Jr.Div.), Sri Dungargarh (for short "the trial Court" hereinafter) in Regular Civil Original Case No. 16/2001 (Bhanwarlal vs. Municipal Board, Sri Dungargarh) has been dismissed and the judgment and decree passed by the trial Court in favour of the plaintiff, respondent has been affirmed. 2. In short, the facts of this appeal stated in the suit are that the plaintiff/ respondent filed a suit before the trial court for declaration and permanent, injunction against the defendant/appellant Municipal Board stating therein that the plaintiff and defendant No.2 are the legal heirs of late Shri Chimni Ram and during his life time, late Shri Chimni Ram purchased a plot from Municipal Board Sri Dungargarh on 26.11.1960 by way of auction and a sale deed in pursuance of the said auction proceedings was executed on 27.2.1961 which was got registered on 4.3.1961. Defendant/appellant Municipal Board had also handed over the actual physical position of the plot to Late Shri Chimni Ram, the father of the plaintiff. The plaintiff and the defendant No.2 are the successors of Late Shri Chimni Ram. Thus they are having, the common and joint right, title and interest over the said disputed plot. Late Shri Chimni Ram in his life time got constructed a Well on the said plot and provided water facility to the residents of the locality. Further, it is mentioned in the plaint that the said well was not being utilized, therefore, the plaintiff in the plaint stated that he planned to carve out the plots on the remaining part of the land to habitat the people. Further, it is mentioned in the plaint that the said well was not being utilized, therefore, the plaintiff in the plaint stated that he planned to carve out the plots on the remaining part of the land to habitat the people. However, when the plaintiff saw the original sale deed which was executed in the favour of his late father Chimni Ram, it came to his notice that the then Chairman Municipal Board made a note below the sale deed to the effect that "bl vkjkth dks fdlh 'k[l dks jgu c; djus dk vf/kdkj ugha gksxkA dq, ds vykok dke esa ysus dh lwjr esa e; fuekZ.k ds cksMZ dh laifÙk ekuh tkosxhA" 3. Further, it has been stated in the suit that the Chairman of Municipal board was having no power to impose such a condition in the sale deed, which was contrary to he basic provision of the law and further stated that the aforesaid condition imposed being contrary to he provision of Section 10 of the Transfer of Property Act is illegal and void. The plaintiff and defendant No.2 have absolute right to use, enjoy and transfer the said land. It is also stated in the suit that the Right to Property is a fundamental right as enshrined in the Constitution of India. The plaintiff requested to the defendant/appellant Municipal Board from time to time for removing the aforesaid condition but to no avail and thereafter, the plaintiff and defendant No.2 served a legal notice upon the defendant/appellant Municipal Board. After receiving the said notice, the Municipal Board has neither replied the notice nor removed the said condition imposed in the said sale-deed. In above factual position mentioned in the plaint, the plaintiff prayed that the sit may be decreed against the defendant No.1, Municipal Board and the condition imposed in the sale-deed dated 27.2.1961 (04.3.61) restraining the plaintiff to mortgage and sale the land in dispute, may be declared illegal and void and by way of the decree of permanent injunction, the defendant No.1/appellant Municipal Board may be restrained from interfering in sale of disputed land by carving out plots etc. by the plaintiff and defendant No.2. 4. by the plaintiff and defendant No.2. 4. Defendant No.1 Municipal Board by filing a written statement denied the facts alleged in the suit and submitted that the well is being utilized yet in present and the said condition imposed in the sale-deed is not contrary to the provisions of Transfer of Property Act. It was also stated that said land was left for the purpose of well and therefore, plaintiff is not entitled to mortgage/sale the disputed land. The defendant Municipal Board has also raised objection regarding deficit court fee and limitation. By way of the pleas in the written statement, it was stated that the condition imposed/mentioned in the said sale deed by the Municipal Board was justified and the disputed land could not be disposed off by the sale, purchase or mortgage by any person and if they sought to mortgage the same then the disputed land shall be deemed to be forfeited in the Municipal Board automatically and accordingly, in the end, it was prayed that the suit may be dismissed with cost. 5. After the completion of the pleading and on the basis of the averments made by the parties, the trial court formulated four issues as mentioned in the judgment and after recording of the evidence of both the parties and hearing the arguments, the learned trial court decreed the suit against the defendant No.1-Municipal Board/appellant vide judgment and decree dated 25.11.2002 and declared that the condition imposed in the said sale-deed that "no persons shall be entitled to mortgage/sale the disputed land and the land along with construction shall be deemed to be the Municipal Board's property, if it is used for any other purpose than Well", is illegal and void and the defendant No.1 Municipal Board was restrained from prohibiting the plaintiff's father or plaintiff to transfer/sale the disputed land purchased vide sale-deed dated 27.2.1961, in which the aforesaid condition was imposed. 6. The appellant defendant Municipal Board being aggrieved by the judgment and decree dated 25.11.2002 preferred an appeal before the Appellate Court, which as dismissed vide the judgment and decree impugned dated 14.10.2005 and the judgment and decree impugned dated 14.10.2005 and the judgment decree passed by the trial Court was affirmed. Hence, this Second Appeal under Section 100 of Code of Civil Procedure Code, 1908 has been filed. 7. Hence, this Second Appeal under Section 100 of Code of Civil Procedure Code, 1908 has been filed. 7. Vide order dated 4.12.2006 this Court while admitting the Second Appeal formulated the following substantial question of law: "whether the condition imposed at "A to B" on Ex.-1 violates under Section 10 of the Transfer of Properties Act." 8. I have heard learned counsel for both the parties on the aforesaid formulated question of law of the law and other legal aspect of the appeal. 9. Before arguing on the law point, which was formulated as above, learned counsel of the parties submitted before this Court that any property is given by executing sale-deed or lease deed, for any general or special purpose and the nature of the property and the document/deed issued/executed by the Municipal Board/body transferring the right, title and interest upon the property in favour of any person is also required to be considered to meet out the controversy and a distinction is required to be made between the property/matters, where initially the right, title and interest in the property, is not vested with the Body, but only the patta has been issued for the specified period in favour of a person by surrendering his property rights or where absolute ownership rights have been transferred in favour of any person/lease holder, and where the title of the property is vested initially with the Body/Municipal Board and the property has been given by the Municipal Board on lease/patta for a specific period and other hand where on account of the long possession or other factor, patta has been issued by way of the legal status, notification/circular of the Government for specific purpose and stipulated period. Learned counsel for the parties did not raise any other legal points/issues except raised above with the substantial question of the law is framed by this Court earlier and did not press the other issues regarding the Court Fees and Limitation raised in the appeal. 10. Learned counsel for the parties did not raise any other legal points/issues except raised above with the substantial question of the law is framed by this Court earlier and did not press the other issues regarding the Court Fees and Limitation raised in the appeal. 10. On behalf of the appellant, learned counsel has stated that indisputably, the land in question right from inception was vesting with the appellant Municipal Board and looking to the nature of the deed and the property, it can't be said that the property has been sold transferring the entire rights of the Board in favour of the purchaser and even if it is sold wholly, then also the property is considered to be given for a stipulated period for specific purpose by way of lease/sale deed. 11. In such a situation, the submission of the learned counsel for the appellant is that the provisions of the Section 10 of the Transfer of Property Act are not attracted and applied in the present case and therefore, both the courts below - the appellate Court as well as the trial Court have seriously erred in holding the condition imposed in the sale-deed (Exhibit 1) at "A to B" as illegal in the light of provisions of Section 10 of the said Act and further, directing the appellant not to interfere in the sale of disputed land by the plaintiff/respondent. In support of his contention, learned counsel for the appellant has relied upon a decision of the Hon'ble Supreme Court in the case of Raghuram Rao and other vs. Eric P. Mathias and others ((2002) WLC (Supreme Court) Civil 219). 12. Learned counsel for the respondent rebutting the arguments advanced by appellant's Advocate vehemently contended that the document executed between the parties regarding the disputed land is a sale deed in all respect inasmuch as on the said sale deed it has been mentioned that it is a "Benama" sale deed and no limitation can be prescribed for use and enjoyment of the same. In view of the above, it is also submitted that the condition as imposed in the sale deed Exhibit 1 at the bottom of the same is absolutely contrary to the provisions of Transfer of Property Act. In view of the above, it is also submitted that the condition as imposed in the sale deed Exhibit 1 at the bottom of the same is absolutely contrary to the provisions of Transfer of Property Act. It is further submitted that judgment of the Hon'ble Supreme Court relied upon by the counsel for the appellant in the case of Raghuram Rao (supra) has no application to the facts and circumstances of the present case inasmuch as the facts of the case relied upon above by the appellant and the case in hand are altogether different. According to learned counsel, in that case the title of the property was vesting with the body right from inception and it was given on lease for specific period. Learned counsel submitted that while imposing the condition in the aforesaid document, the Board was required to take into consideration whether such condition can be imposed looking to the intention of the Transfer of Property Act and in that regard document "Benama" executed between the parties and thus, the Board has failed to keep in mind the circumstances whether it can impose the condition or not while executing the document to the sale the property in favour of plaintiff/respondent's father or any other person. Accordingly, learned counsel for the respondent submitted that the appeal is required to be dismissed with cost. 13. I have considered the facts and circumstances of the case and the rival submissions made on behalf of the learned counsel for the parties and I have also gone through the decision of the Hon'ble Apex Court relied upon by the appellant in Raghuram Rao case (supra). 14. Admittedly, the plaintiff Bhanwar Lal preferred a suit before the learned trial Court stating that the father of the plaintiff Late Shri Chimni Ram purchased the disputed land situated in Ward No. 25, Kalu Bas, Sri Dungargarh by a registered sale deed dated 27.2.1961 from the Municipal Board in auction. After death of father of the plaintiff and defendant No.2, since the Well constructed by the plaintiff respondent's father on the disputed land was not being used, the plaintiff made a plan to carve out the plots on the said disputed land to habitat the people. After death of father of the plaintiff and defendant No.2, since the Well constructed by the plaintiff respondent's father on the disputed land was not being used, the plaintiff made a plan to carve out the plots on the said disputed land to habitat the people. However, on finding that the condition imposed in the sale deed Exhibit 1 "A to B" is not in accordance with law, the suit was filed by the plaintiff with the prayer to remove/delete the condition imposing restriction upon mortgage/sale of the land and further, to restrain the defendant Municipal Board from interfering in carving out the plot and sale of the disputed land by the plaintiff. The condition imposed in the sale deed Exhibit 1 reads as under : ^^bl vkjkth dks fdlh 'k[l dks jgu cS djus dk vf/kdkj ugha gksxk dqa, ds vykok dke esa ysus dh lwjr esa e; fuekZ.k ds cksMZ dh lEifÙk ekuh tkosxhA** 15. The learned trial Court as well as the first appellate court by their judgments and decrees impugned found that the aforesaid condition, which was imposed by the Municipal Board in Exhibit 1 is illegal and void in view of the provisions of Section 10 of the Transfer of Property Act. 16. The provisions of Section 10 of the Transfer of Properties Act reads as under: "Section-10. Condition restraining alienation.—Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lesser or those claiming under him: Provided that property may be transferred to or for the benefit of a women (not being a Hindu Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein." 17. The spirit of the provisions of the Sec.10 of the Act and a bare reading of the said provision it is abundantly clear that if any property is transferred with any condition or limitation with intend to absolutely restraining the transferee or any person claiming under him from parting with or disposing of his or her interest in the said property, the said condition is void. In other hand, if the property is transferred on lease, then such a condition can not be imposed. It is also provided by the proviso appended to the said section that if the property is transferred to or for the benefit of the women, such a condition can be imposed so that she shall not be having the power during her marriage to transfer or charge the same of her beneficial interest therein. 18. In the present case, admittedly, the transfer of the disputed property made by the sale deed Exhibit 1 is in favour of respondent/plaintiff father but not in favour of any women as provided in the proviso appended in Section 10 and nor does it appear from the sale deed/document Exhibit-1 that the property has been given on lease for the stipulated/specified period for specific purpose. From the perusal of the sale deed Exhibit 1, it is also clear that the land in dispute has been transferred in favour to the father of the plaintiff by way of auction held by the Municipal Board on 26.11.1960 on payment of the entire price of the land and accordingly, it is also mentioned that the father of the plaintiff shall be the absolute owner of the property. In this view of the matter, where the absolute ownership rights, title and interest have been transferred in favour of the plaintiff's father by executing the said sale deed, in such a peculiar situation, it is not justifiable to impose any condition treating the property as has been given on temporary basis on lease. 19. Coming to the legal issue raised at the opening the argument and during the course of the hearing by the learned counsel for the parties regarding the absolute sale/transfer of the any property and it being given on lease, for that purpose, it is essential that the nature of the document of transfer executed between the parties is to be seen. Where the ownership interest or other interest of any person are vesting in the property in question before issuance of the patta by the Board/Body and the said property is surrendered in Board, Body, Institution or Authority with the intention for issuing the patta and after getting the land use changed and thereafter the said property has been transferred by issuing patta by the concerned Body in favour of that person who surrendered his rights in the property, for a specified purpose, in that situation and in the present case where the disputed land has been transferred completely by executing sale deed without specifying any period for its use after receiving the entire price of the land, in either situations, in considered opinion of this Court, it is not justified to cancel the patta/sale deed on account of transfer/sale of the disputed land either in part of whole in any other way. A condition restricting the transfer/sale may be justified to be imposed only in the matters where the ownership rights are vesting in the Body/Board right from beginning or on account of long possession of any person over the land of the Government or Body and the said person is granted permission under any scheme to use and enjoy the property by issuing patta on certain conditions for specified period despite the fact that the said person was having no right in the property since beginning. 20. In Raghuram Rao case (supra) the Hon'ble Apex Court has propounded the legal position in clear terms that any property which is given on the lease cannot be transferred as a whole but there is no ban/restriction in transferring the part there of. Thus, the Apex Court in that case found that it is not a case of breach of any condition on account of part transfer of the property between the members of the family and accordingly, the suit filed in respect of breach of condition imposed in the document was dismissed by the Court while setting aside the judgments passed by the High Court and the court below. 21. 21. The case in hand is not a case where the sale deed has been cancelled on account of breach of any condition imposed in it by the Board, but facts of the present case are different where the suit has been filed for declaring the condition mentioned in the sale deed executed between the parties imposing absolute restriction upon the transfer of the land as illegal and void to the contrary of Section 10 of the Transfer of Property Act. In this view of the matter, the present case is only related to questioning the imposition of the condition in the sale deed by the Municipal Board, in the suit as also relating to the legality of the judgment passed by the Court below holding the condition imposed by the Board as illegal. Thus the facts of the present case are entirely different than in Raghuram Rao case (supra) and therefore it is of no help to the appellant and as held by the Hon'ble Apex Court in the aforesaid decision in respect of the sale deed or lease if the part property is transferred then it is also not considered as breach of condition. 22. In view of the aforesaid discussion, position of law and the decision of the Hon'ble Apex Court in Raghuram Rao case (supra), this court is of the considered opinion that both the courts below are justified in declaring the condition imposed in the sale deed (Exhibit 1) as illegal and void, decreeing the suit and dismissing the first appeal treating complete sale of the property looking to the intention of the parties, nature of property and the document executed in that respect. 23. Thus in the light of the substantial question of law framed by this Court on 4.12.2006 and also the legal question raised by the counsel for the parties at the opening of the argument during the course of hearing, the appeal filed by the appellant is not worth acceptance. 24. As per above discussion, the Second Appeal is dismissed. Consequently, the stay application is also rejected. Office is directed to proceed for returning the record of both the courts below.