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2014 DIGILAW 111 (CHH)

Banshi v. Sukhdas

2014-03-07

P.SAM KOSHY

body2014
JUDGMENT P. Sam Koshy, J. 1. By way of instant second appeal, the appellant has challenged the judgment and decree dated 27.1.2007 passed by Additional District Judge, Mungeli (hereinafter referred to as "first appellate Court"), in Civil Appeal No. 24-A/2006. By the said judgment dated 27.1.2007, the first appellate Court reversing the judgment and decree dated 2.3.2006 passed in Civil Suit No. 60-A/2002, by Civil Judge, Class-I, Mungeli, (hereinafter referred to as "trial Court"), has allowed the first appeal preferred by the plaintiff-Sukhdas. 2. Facts leading to the instant second appeal are that respondent No. 1 -plaintiff had filed a civil suit for declaration of title and permanent injunction against the appellant. Claim of the plaintiff was on the basis that he had come in possession over the suit land situated in Khasra No. 279/3, Rakba 0.57 acre, in village Charnitola by way of a registered sale deed dated 27.5.1999 from one Awadh Ram. As per the plaintiff, immediately after the purchase of the said suit land, he got the same mutated in his name in revenue records. However, the appellant-defendant No. 1 subsequently interfered with the possession of the plaintiff that led to filing of the civil suit. 3. The defendants in turn after receiving notice from the trial Court filed their written statement denying the contentions put forth by the plaintiff, and stating therein that in fact appellant-defendant No. 1 (Banshi) was the actual owner of the said suit land. According to defendant No. 1, the land originally belonged to one Ramadheen, who, in turn, sold the said land to him and Kundan and also given possession but, before the sale deed could be registered, Ramadheen had died. In between, the wife of Ramadheen, namely Jethiya Bai, filed a civil suit bearing No. 62-A/1987 seeking relief of possession against Banshi, and vide order dated 4.3.2002 (Ex. D-1), the said suit was decreed by way of a compromise. In between, the son of Ramadheen, namely Tularam, sold the suit property to Awadhram vide Ex. P-8 dated 8.6.1998, who, in turn, sold the said property to the plaintiff-Sukhdas vide Ex. P-7 dated 27.5.1999. According to appellant-defendant No. 1, he had perfected a right over the said property on account of the agreement of sale that was entered into by the original land owner Ramadheen who had sold the said land in his favour. P-8 dated 8.6.1998, who, in turn, sold the said property to the plaintiff-Sukhdas vide Ex. P-7 dated 27.5.1999. According to appellant-defendant No. 1, he had perfected a right over the said property on account of the agreement of sale that was entered into by the original land owner Ramadheen who had sold the said land in his favour. Further case of the appellant was that the compromise decree that was passed on 4.3.2002 wherein it was ordered that the appellant (Banshi) would get the title and possession over the said property subject to legal heirs of Ramadheen executing a registered sale deed in favour of the appellant (Banshi) within a period of 30 days from the date of passing of the compromise decree. It was also contended by the appellant that on account of the fact the subsequent transaction on the basis of which the respondent No. 1/plaintiff is claiming title over the said property is not binding upon him on account of the fact that the same is hit by the provisions of Section 52 of the Transfer of Property Act, 1882 (hereinafter referred to as "the Act of 1882"). 4. The trial Court after the pleadings were completed, vide its judgment and decree dated 2.3.2006, dismissed/rejected the suit filed by the plaintiff-Respondent No. 1. The reason for dismissal of the suit by the trial Court was for the reason that according to the trial Court the case of the plaintiff was hit by the doctrine of lis pendens inasmuch as there was an agreement to sale between Ramadheen and the appellant (Banshi) and for which the appellant had also allegedly paid money to Ramadheen, but, before the sale deed could be executed, Ramadheen expired, but possession of the suit land was handed over to the appellant Banshi. Subsequently the legal heirs of Ramadheen, i.e. his wife Jethiya Bai and his two sons namely Tularam and Hinchharam, had filed a civil suit claiming possession of the suit land and that it was during the pendency of the said suit, the plaintiff purchased the suit land from one Awadhram, who, in turn, had received the same from Tularam, one of the sons of Ramadheen. Therefore, according to the trial Court such a transfer is not permissible as per the provisions of Section 52 of the Act of 1882. 5. Therefore, according to the trial Court such a transfer is not permissible as per the provisions of Section 52 of the Act of 1882. 5. The said judgment dated 2.3.2006 rejecting the suit of the plaintiff, was challenged by the plaintiff (Sukhdas) in the first appeal (Civil Appeal No. 24-A/2006), under Section 96 of CPC, before the first appellate Court. 6. The first appellate Court, however, after considering the total evidence on record and on due appreciation of the evidence, reached to the conclusion that the plaintiff (Sukhdas) was in fact a bona fide purchaser of the suit property inasmuch as the sale deed which was executed by Tularam, son of original owner Ramadheen, had sold the said property vide Ex. P-8 to one Awadhram on 8.6.1998. It is this Awadhram who had subsequently sold the suit land to respondent No. 1-plaintiff vide Ex. P-7 dated 27.5.1999, and even at the time of execution of the sale deed on 27.5.1999, neither the plaintiff (Sukhdas) nor Awadhram, the seller of the suit land to the plaintiff, was informed about any sale that has taken place between Tularam's father Ramadheen and the defendant (Banshi), the appellant in the instant Second Appeal. Therefore, the plaintiff admittedly was a bona fide purchaser. Moreover, even when the plaintiff had purchased the property from Awadhram and when the sale deed was registered on 27.5.1999, no sale deed was executed between Banshi, the present appellant, and either Ramadheen or his legal heirs. Therefore, Section 52 of the Act of 1882 would not come to the rescue of the appellant. Accordingly, the first appellate Court, vide its judgment dated 27.1.2007 reversed the finding of the trial Court and allowing the first appeal preferred by the plaintiff (Sukhdas), passed a judgment in favor of the plaintiff declaring that it is the plaintiff who is in possession and also the owner of the suit property in Khasra No. 279/3 area 0.57 acres, and the first appellate Court passed an order of permanent injunction in favor of the plaintiff and against the present appellant from interfering with the ownership and possession of the suit property. 7. It is this judgment and decree dated 27.01.2007 which has been assailed by the appellant-defendant No. 1 (Banshi) by way of instant Second Appeal. 8. 7. It is this judgment and decree dated 27.01.2007 which has been assailed by the appellant-defendant No. 1 (Banshi) by way of instant Second Appeal. 8. This Court while admitting the present Second Appeal, framed the following substantial question of law, vide order dated 24.08.2009: "Whether the finding of lower appellate Court relating to the ownership and possession of the respondent No. 1 is perverse?" 9. For the said substantial question of law framed, learned counsel for the appellant submits that the sale deed which has been executed by Awadhram in favour of Sukhdas (respondent No. 1 herein), would not be binding upon the appellant (Banshi) applying the doctrine of lis pendens under the provisions of Section 52 of the Act of 1882. Learned counsel for the appellant further submits that the finding arrived at by the trial Court was in fact proper, legal and justified and there was no necessity for the first appellate Court to have reversed the said finding. 10. Learned counsel for respondent No. 1-plaintiff has contended that the appellant had not been able to prove his case before the Court below and the finding arrived at by the first appellate Court was purely on the basis of the evidence which has been adduced by both the parties. In addition, learned counsel for respondent No. 1 contended that the sale deed by which the plaintiff has got the title over the suit property, i.e. Ex. P-7 dated 27.5.1999, is a registered document duly incorporated. Further, there is no agreement or agreement of sale or any document to establish the transaction between Ramadheen and Banshi. It was also submitted by the learned counsel for respondent No. 1 that the finding arrived at by the first appellate Court was on the basis of the fact that there was no valid title over the suit property in favour of the appellant nor has there been any proof before the Court below to establish the possession of the appellant over the suit property. In view of the same, the submissions made by the learned counsel for respondent No. 1 was that the second appeal being devoid of merits, the substantial question of law framed by this Court should be answered in the negative and the appeal deserves to be dismissed/rejected. 11. In view of the same, the submissions made by the learned counsel for respondent No. 1 was that the second appeal being devoid of merits, the substantial question of law framed by this Court should be answered in the negative and the appeal deserves to be dismissed/rejected. 11. Considering the rival contentions put forth by the counsel appearing for either side, the fact which has come before this Court is that it is alleged that Banshi had purchased the suit land from the father of Tularam, namely Ramadheen, and it is said that he had taken possession of the said suit land before execution of the sale deed and that before the sale deed could be executed, Ramadheen died, and his wife Jethiya Bai and the two sons of Ramadheen, namely Tularam and Hinchharam, had filed Civil Suit No. 62-A/1987 for declaration of title and possession over the suit land against appellant (Banshi), but before the said suit could be decided, one of the sons of Ramadheen, namely Tularam, with a clear no objection received from his mother Jethiya Bai and brother Hinchharam, on 8.6.1998 sold the suit land to Awadhram. It is this Awadhram who had subsequently sold the suit land to plaintiff-respondent No. 1 (Sukhdas) on 27.5.1999. In spite of Tularam having sold the property to Awadhram on 8.6.1998 with no objection of his mother Jethiya Bai and his brother Hinchharam, yet Jethiya Bai and her two sons continued with the civil suit and ultimately entered into a compromise decree without Awadhram and Sukhdas being made a party though they were fully aware of the fact that the property had already been sold to Awadhram and subsequently by Awadhram to the plaintiff. Thus, on the date when Sukhdas had in fact purchased the property he was not aware about any proceedings pending anywhere in respect of the suit property and he can safely be called to be a bona fide purchaser. 12. Another aspect, which has to be seen is that Tularam and his brother Hinchharam alongwith their mother Jethiya Bai had jointly with the full consent, had sold the property to Awadhram. This fact was not brought by these persons to the notice of the Court even when the compromise decree was passed and for this reason also the compromise decree so entered into passed by the Court below would not be binding upon plaintiff-respondent No. 1. This fact was not brought by these persons to the notice of the Court even when the compromise decree was passed and for this reason also the compromise decree so entered into passed by the Court below would not be binding upon plaintiff-respondent No. 1. Further, immediately after respondent No. 1 had purchased the suit land, he had got the suit land mutated in his name in revenue records and since the date of purchase, plaintiff-respondent No. 1 was in full possession of the suit property, and it is only when the appellant (Banshi) had tried to interfere with the possession over the suit property that forced the plaintiff to file a suit i.e. Civil Suit No. 60-A/2002. 13. As regards the possession and title of the plaintiff over the suit property, he had produced revenue records in respect of the suit property alongwith "no objection certificate" given by legal heirs of Ramadheen. 14. Taking all these facts and circumstances of the case into consideration, I am of the opinion that the findings given by first appellate Court, relating to the ownership and possession of plaintiff-respondent No. 1 over the suit property, cannot be said to be perverse finding. If we see the finding arrived at by the Court below, the Court has specifically given the reasons as to how it came to the conclusion that plaintiff-respondent No. 1 was in fact a bona fide purchaser and that there is no illegality or error of law having been committed in the course of passing of the impugned judgment. Further, if we see the impugned judgment, it is evidently clear that whatever submission raised in the instant Second Appeal have in fact already been considered by the Court below and all these aspects have been duly considered and decided. 15. Thus, the substantial question of law framed is answered in the negative holding that the finding arrived at by the first appellate Court is not perverse finding and that the finding arrived at is in fact on legally sound principles and does not warrant for any interference and the instant second appeal deserves to be dismissed. 16. Accordingly, the Second Appeal being devoid of merit is dismissed. 17. No order as to costs. Decree be drawn up accordingly. Appeal dismissed.