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2015 DIGILAW 19 (RAJ)

Karnail Singh v. State of Rajasthan

2015-01-05

ARUN BHANSALI

body2015
JUDGMENT : Hon'ble BHANSALI, J.—These writ petitions are directed against the judgment dated 30.6.2014 passed by the Board of Revenue, Ajmer (`Board'), whereby while the appeal filed by the petitioner against the judgment dated 30.4.2013 passed by the Revenue Appellate Authority, Sriganganagar (`RAA') has been dismissed, the appeal filed by the respondent No. 4 Hardutt Singh against the same has been accepted. 2. The facts in brief as indicated by the petitioner in the writ petitions are that respondent No. 5 Narendra Kumar was recorded khatedar of land ad-measuring 13Bigha 15 Biswa situated at Village 2-E, Chhoti, Sriganganagar. Narendra Kumar entered into an agreement to sale dated 16.2.2010 favouring petitioner and respondent No. 4 Hardutt Singh for land admeasuring 2 Bigha 12 Biswa, Narendra Kumar executed a sale deed dated 7.5.2010 in favour of Hardutt Singh for land admeasuring 1 Bigha 6 Biswa from out of land comprised in agreement to sale dated 16.2.2010. Whereafter, Hardutt Singh filed a suit No. 55/2011 under Sections 53 & 88 of the Rajasthan Tenancy Act, 1955 (`the Act') before Sub-Divisional Officer (`S.D.O.') against Narendra Kumar and the State seeking partition based on possession. 3. The petitioner Karnail Singh filed an application under Order 1, Rule 10 CPC, which application was rejected by the S.D.O. On 23.7.2012 and the suit was decreed on 14.9.2012. Whereafter, registered sale deed was also executed by Narendra Kumar in favour of the petitioner for remaining 1 Bigha 6 Biswa land pursuant to the agreement dated 16.2.2010. The petitioner filed appeal before the RAA questioning the rejection of his application under Order 1, Rule 10 CPC and the decree passed by the S.D.O. in favour of Hardutt Singh. 4. The appeal was allowed by the RAA vide its judgment dated 30.4.2013, whereby the application filed by the petitioner seeking permission to file appeal was accepted, the judgment dated 14.9.2012 passed by the S.D.O. was set-aside and matter was remanded back to the S.D.O. with a direction to implead the petitioner as party and decide the suit afresh. 5. Feeling aggrieved, the petitioner as well as respondent No. 4 Hardutt Singh filed appeals before the Board and the Board by its impugned judgment dated 30.6.2014 decided the appeals as indicated hereinbefore. 6. It is submitted by learned counsel for the petitioner that the Board committed grave error of law in passing the judgment impugned. 5. Feeling aggrieved, the petitioner as well as respondent No. 4 Hardutt Singh filed appeals before the Board and the Board by its impugned judgment dated 30.6.2014 decided the appeals as indicated hereinbefore. 6. It is submitted by learned counsel for the petitioner that the Board committed grave error of law in passing the judgment impugned. It was submitted that the finding by the Board that on account of agreement to sale executed by Narendra Kumar, Karnail Singh does not get any right or title in the disputed land is baseless. 7. It was also submitted that the present is a case of fraud having been committed by Narendra Kumar and Hardutt Singh, inasmuch as, while the agreement to sale dated 16.2.2010 was executed by Narendra Singh with the petitioner and Hardutt Singh Jointly for land ad-measuring 2 Bigha 12 Biswa and in the agreement, it was specifically indicated that the total consideration had been paid. However, out of the land effected by the agreement dated 16.2.2012, sale deed was executed by Narendra Kumar in favour of Hardutt Singh on 7.5.2010 for an alleged consideration of Rs. 4 lacs without any reference to the agreement to sale dated 16.2.2010. Whereafter, the suit was filed by the purchaser-Hardutt Singh seeking decree for partition of specific portion of the land, wherein Narendra Kumar admitted the averments made in the plaint except for the para relating to the cause of action and the suit was decreed for the specific portion without any reference to the agreement to sale and in absence of the petitioner, which clearly indicates the fraud having been committed by Narendra Kumar and Hardutt Singh. The S.D.O. wrongly rejected the application filed by the petitioner under Order 1, Rule 10 CPC by merely indicating that the agreement to sale does not create/confer any right. 8. The RAA was justified in accepting the necessity of impleading the petitioner as party to the suit and that the suit could not have been decided in absence of the petitioner and therefore, the judgment impugned passed by the Board deserves to be set-aside. 9. 8. The RAA was justified in accepting the necessity of impleading the petitioner as party to the suit and that the suit could not have been decided in absence of the petitioner and therefore, the judgment impugned passed by the Board deserves to be set-aside. 9. It was submitted that the petitioner has got right in view of provisions of Section 53A of the Transfer of Property Act, 1882 (`Act of 1882') and in any case in view of the subsequent event i.e. the sale deed having been executed by Narendra Kumar qua the half portion as comprised in the agreement to sale dated 16.2.2010, it cannot be said that the petitioner has no right in the land in question. 10. Reliance was placed on A.V. Papayya Sastry & Ors. vs. Govt. of A.P. & Ors.: (2007) 4 SCC 221 ; Hamzabi & Ors. vs. Syed Karimuddin & Ors.: (2001) 1 SCC 414 ; Mahesh Kanwar & Anr. vs. State of Rajasthan & Ors. : 2003 RRD 115; Ratan Kumar Tandon & Ors. vs. State of U.P.: (1997) 2 SCC 161 . 11. Opposing submissions made on behalf of the petitioner, learned counsel for the respondent No.4 submitted that after dismissal of the application under Order 1 Rule 10 CPC, the petitioner choose not to question the rejection of the application and the suit came to be decreed by the S.D.O. The petitioner has already filed a civil suit before the District Judge, Sriganganagar, wherein the registered sale deed executed in favour of the petitioner has been challenged. Once, the petitioner has availed the remedy of seeking cancellation of the sale deed, he cannot maintain the present writ petition seeking parallel remedy from this Court. It was further submitted that the entire case is based on the agreement to sale, which by itself does not create any right in favour of the parties and therefore, the Board was justified in passing the impugned judgment and the same does not call for any interference. 12. Reliance was placed on Suraj Lamp & Industries Private Limited vs. State of Haryana & Anr. (2012) 1 SCC 656 and Jetha & Anr. vs. State & Ors.: 2010(1) RRT 433. 13. I have considered the rival submissions made by learned counsel for the parties. 14. 12. Reliance was placed on Suraj Lamp & Industries Private Limited vs. State of Haryana & Anr. (2012) 1 SCC 656 and Jetha & Anr. vs. State & Ors.: 2010(1) RRT 433. 13. I have considered the rival submissions made by learned counsel for the parties. 14. The dispute in the present writ petitions pertain to as to whether the petitioner Karnail Singh was a necessary party in the suit filed by Hardutt Singh seeking partition based on the sale deed dated 7.5.2010 executed in his favour by Narendra Kumar. The petitioner claims to be necessary party based on an agreement to sale dated 16.2.2010 executed by Narendra Kumar in his favour alongwith Hardutt Singh qua the land in dispute. The agreement to sale dated 16.2.2010 pertains to 2 Bigha 12 Biswa land and the sale deed dated 7.5.2010 in favour of Hardutt Singh pertains to 1 Bigha 6 Biswa i.e. half portion of what was agreed to be sold under agreement dated 16.2.2010 to Hardutt Singh and Karnail Singh. 15. The application filed by the petitioner was rejected by the S.D.O., in the appeal filed before the Board, the Board accepted the appeal on the ground that the petitioner was a necessary party to the suit, which judgment came to be set-aside by the Board. 16. The sequence of events needs to be noticed for determining the validity of the judgment passed by the Board. The sale deed was executed by Narendra Kumar in favour of Hardutt Singh on 7.5.2010, whereafter the suit was filed on 11.4.2011 based on possession seeking partition. The petitioner filed application under Order 1, Rule 10 CPC on 13.7.2012, which application was replied to on 16.7.2012 and was rejected by S.D.O. on 23.7.2012. The petitioner did not question the rejection of his application under Order 1 Rule 10 CPC before any forum. Whereafter, the suit was decreed on 14.9.2012 by the S.D.O. and interestingly thereafter on 18.9.2012, the sale deed for the half portion of the land agreed to be sold vide agreement dated 16.2.2010 was executed by Narendra Kumar in favour of Karnail Singh and in the sale deed a specific reference to the sale having been executed in favour of Hardutt was made (Annexure-6 Pg. 37). 17. 37). 17. The decree dated 14.9.2012 passed by the S.D.O. specifically indicated that portion of the land which fell in share of Hardutt Singh and he was declared khatedar of a specific portion thereof and it is only subsequent thereto that the sale deed dated 18.9.2012 was executed between Narendra Kumar and the petitioner. The petitioner was well aware of the decree passed by the S.D.O. and the fact that the specific portion had been decreed in favour of Hardutt, Whereafter, the appeal was filed by him before the RAA seeking setting aside the order rejected his application under Order 1, Rule 10 CPC and the decree passed by the S.D.O. 18. Having once agreeing to purchase 1 Bigha 6 Biswa land post decree dated 14.9.2012, whether any right was left with the petitioner to challenge the decree dated 14.9.2012 passed by the S.D.O. is quite questionable, inasmuch as, once the fact of sale in favour of Hardutt Singh and the decree dated 14.9.2012 was well within the knowledge of the petitioner and he purchased the land vide sale deed dated 18.9.2012 with open eyes, the act of purchasing the land on his part would operate as estoppal against him and that also in view of the fact that petitioner's application for impleadment had already been rejected and the rejection of the application under Order 1, Rule 10 CPC by the S.D.O. on 23.7.2012 was not questioned by him appropriately. 19. The above aspect and finding is confined to the issue as to in the suit filed for partition and declaration by Hardutt Singh, whether the petitioner was a necessary party. 20. So far as the allegations made by the petitioner regarding the fraud etc. having been committed by Narendra Kumar and Hardutt Singh are concerned, the said aspect would have to be examined by the Civil Court independent of the present proceedings in the suit filed by the petitioner seeking setting aside of sale deed dated 7.5.2010 said to be pending before the District Judge, Sriganganagar. 21. having been committed by Narendra Kumar and Hardutt Singh are concerned, the said aspect would have to be examined by the Civil Court independent of the present proceedings in the suit filed by the petitioner seeking setting aside of sale deed dated 7.5.2010 said to be pending before the District Judge, Sriganganagar. 21. So far as the various pleas raised by the petitioner based on Section 53A of the Act of 1882 and sale deed executed in his favour on 18.9.2012 and countered by counsel for the respondents based on provisions of Section 54 of the Act of 1882 regarding maintainability of the proceedings based on agreement to sale are concerned, the same looses significance in view of the subsequent conduct of the petitioner on account of execution of sale deed dated 18.9.2012 and filing of the suit seeking cancellation of sale deed dated 7.5.2010 and therefore, the same does not require any determination in the present proceedings. Consequently, there is no substance in the writ petitions, the same are, therefore, dismissed. No costs.