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2016 DIGILAW 469 (CAL)

Gurmail Singh v. Lakhbinder Sing

2016-06-08

ASHOKE KUMAR DASADHIKARI

body2016
JUDGMENT : Ashoke Kumar Dasadhikari, J. All three contempt applications being C.P.A.N. 765 of 2014, C.P.A.N. 770 of 2014 and C.P.A.N. 771 of 2014 were filed by two petitioners namely, Gurmail Singh in C.RC. 01 of 2016 and Mahinder Singh in C.R.C. 02 of 2016 and C.RC. 03 of 2016 for alleged violation of interim order of status quo as on May 5, 2005 to be maintained by the alleged contemnor i.e. Lakhbinder Singh. 2. It is alleged that on two revisional applications filed by the alleged contemnor, Lakhvinder Singh, this Hon'ble Court on May 5, 2005 passed the following order :- "Put up this revisional application as 'for orders' in the monthly combined list of cases for the month of June, 2005. The parties are directed to maintain status quo, as of today, in respect of the suit property till the disposal of the revisional application". 3. It is alleged that the alleged contemnor viz., Lakhvinder Singh even in spite of getting an interim order of status quo as on May 5, 2005 in the aforementioned two revisional applications sold out some properties which are involved in the partition suit and in revisional applications in clear violation of the aforementioned order and therefore, committed contempt of this Hon'ble Court. 4. It is alleged that as per regulation governing the maintenance of land records in Punjab, there is periodical change of plot number and Khatauni numbers. The allegation was made that even in spite of pendency of the aforementioned two revisional applications before this Court and also continuance of the interim order dated May 5, 2005 the alleged contemnor by five registered sale deeds, of which the petitioners came to know very recently, have sold out some lands under present Khawab No.1006, 1006/1684 and 1179 under Khatauni No.1648. The petitioners have come to know that at least five sale deeds were executed by the alleged contemnor and sold some properties under the aforementioned Khawab and Khalallni which are part of the properties involved in the partition suit. 5. It was submitted that the alleged contemnor, Lakhvinder Singh, who himself is the revisionist before this Court obtained the interim order and he has full knowledge about the order he has obtained from this Court and its continuation till date. 5. It was submitted that the alleged contemnor, Lakhvinder Singh, who himself is the revisionist before this Court obtained the interim order and he has full knowledge about the order he has obtained from this Court and its continuation till date. It was further alleged that even in spite of having knowledge of the interim order passed by this Court in the aforementioned two revisional cases the alleged contemnor viz., Lakhvinder Singh deliberately and intentionally sold out the properties involved in the partition suit. Accordingly, a prayer was made for cancellation of the alleged deeds executed by the alleged contemnor and for awarding punishment for such wilful violation. 6. Mr. Roychowdhury, learned Senior Counsel appearing for the petitioners submitted that Mahinder Singh being the plaintiff in the partition suit obtained a preliminary decree in his favour wherein Lakhvinder Singh was the defendant. Lakhvinder Singh did not contest the suit although he has filed written statement. After preliminary decree was passed a prayer was made for passing final decree and final decree was also passed without any contest by the alleged contemnor, Lakhvinder Singh. Against that final decree, an application for setting aside the decree was moved by Lakhvinder Singh under Order 9 Rule 13 of the Code of Civil Procedure. The application was allowed by the learned Trial Court. Against the order passed by the learned Trial Court an appeal was preferred by the petitioner before the learned Appellate Court and the learned Appellate Court after hearing both sides reversed the order passed by the learned Judge allowing the application under Order 9 Rule 13 of the Code of Civil Procedure. Against that the alleged contemnor, Lakhvinder Singh moved two revisional applications and obtained interim order. 7. Mr. Roychowdhury submitted in view of the Land Reforms Rules prevailing in the State of Punjab, plot number and khatian number which is Khawab number and Khatazmi number in the State are likely to be changed at some interval and the present Khatauni number is 1006. 8. Mr. Roychowdhury submitted that the alleged contemnor himself obtained the interim order of status quo to be maintained by both parties till the disposal of the revisional application and the alleged contemnor being the revisionist has full knowledge about the order. 9. Mr. Roychowdhury submitted that deliberately and intentionally the alleged contemnor sold out some properties under Khawab Nos.1006, 1006/1648 and 1179. 9. Mr. Roychowdhury submitted that deliberately and intentionally the alleged contemnor sold out some properties under Khawab Nos.1006, 1006/1648 and 1179. He submitted that there may be other sale deeds selling out some properties involved in the partition suit but at present the petitioner could find out those five sale deeds by which the lands under the aforementioned Khawab was sold out. 10. Mr. Roychowdhury submitted that the alleged contemnor being the petitioner before this Court having full knowledge about the order ought not to have sold out the properties in wilful disobedience and violation of the order passed by this Court. 11. Mr. Roychowdhury submitted that this violation is intentional. He has drawn attention of this Court about the change of plot number against Khatauni number in the State of Punjab and submitted there is no controversy about the fact that the alleged contemnor sold out some lands under Khawab No. 1006 and others. 12. Mr. Roychowdhury submitted that a contempt rule was issued by this Court and the alleged contemnor was granted opportunity to file his reply to the rule issued by this Court. 13. Mr. Roychowdhury submitted that selling of the properties was never denied by the alleged contemnor. He submitted a claim was made that the property was transferred by way of a Will executed by the mother of the alleged contemnor and therefore, he has every right to sell the property. 14. Mr. Roychowdhury submitted that selling of the property is admitted by the alleged contemnor. He has said that he had no knowledge about the interim order passed by this Court on his revisional application. 15. Mr. Roychowdhury therefore, submitted that the alleged contemnor should be suitably punished and aforementioned five deeds being Sale Deed No.698 dated May 28, 2010, Sale Deed No.860 dated June 8, 2010, Sale Deed No.861 dated June 8, 2016, Sale Deed No.1176 dated June 30, 2010, Sale Deed no.1161 dated September 15, 2009 be declared void. 16. Mr. Roychowdhury also submitted that in a Punjab suit the alleged contemnor himself admitted that he has sold out 45 bighas of land out of the suit property. He submitted, therefore, the allegations made in the contempt application are really admitted by the alleged contemnor. He submitted that the sale and/or assignment was made in defiance of the Court's order. 17. Mr. He submitted, therefore, the allegations made in the contempt application are really admitted by the alleged contemnor. He submitted that the sale and/or assignment was made in defiance of the Court's order. 17. Mr. Roychowdhury submitted that this Hon'ble Court have enough power to punish the contemnor and to restore the illegally derived benefit to the persons defrauded so that the contemnor may not be able to retain the fruits of such violation. 18. Mr. Roychowdhury further submitted that the Hon'ble Apex Court have clearly laid down the principle that in case of acts done violating the injunction or stay, it would be the duty of the Court to set the wrong right in exercise of its inherent powers. 19. Mr. Roychowdhury also submitted that the Hon'ble Apex Court is also very specific and clear on the point, if a transfer is made in violation of an order of injunction, the transferee do not acquire any title and the transfer is to be treated as non-existent. 20. Mr. Roychowdhury cited three decisions in support of his submissions, one is reported in (1996) 4 S.C.C. 622 {Delhi Development Authority vs. Skipper Construction Co. (P) Ltd. and anr.), the second one is reported in (1995) 6 S.C.C. 50 (Surjit Singh and ors. vs. Harbans Singh & ors.) and the third decision of this Court is reported in 1999(II) C.H.N. 704 (Smt. Bijali Naskar vs. Shri Amalendu Saha). 21. Mr. Roychowdhury concluded that the sale deed executed by the alleged contemnor should be declared 'as void and it also be recorded that no title passed to any of the transferee on the basis of the sale deed registered by the alleged contemnor. 22. Mr. Gopal Ch. Ghosh, learned Counsel appearing for the petitioner in contempt proceeding being C.RC. 01 of 2016 adopted the submissions of Mr. Roychowdhury and he submitted that it was admitted by the alleged contemnor that he has sold out 45 bighas of land out of suit property. 23. Mr. Ghosh also submitted that the statement is made by the alleged contemnor in Title Suit No.480 of 2009. According to Mr. Ghosh, the deed so executed should be declared void and it should also be declared no title passed to the transferee in view of the said sale deeds. 24. On the other hand, Mr. 23. Mr. Ghosh also submitted that the statement is made by the alleged contemnor in Title Suit No.480 of 2009. According to Mr. Ghosh, the deed so executed should be declared void and it should also be declared no title passed to the transferee in view of the said sale deeds. 24. On the other hand, Mr. Basu, learned Senior Counsel submitted that although there is some confusion on plot numbers but he will take instruction from the learned Advocate who was representing the alleged contemnor in Punjab proceeding. He took time before summer vacation. after summer vacation he clearly conceded that the properties were transferred by way of Will by the mother of the alleged contemnor. The alleged contemnor is the absolute owner of that property. However, some properties involved in the partition suit were sold by the alleged contemnor. He submitted since the decree passed in the partition suit is under challenge and petitioner has filed revisional application against the order passed by the learned Appellate Court, at this juncture it would be too hard to accept the finality of the proceeding and/or judgment and decree passed in the partition suit. He submitted if ultimately both the preliminary decree and final decree is recalled and/or set aside, in that event, the partition suit would be heard and decided afresh. Keeping in mind the possibility of such event which may occur in future and keeping in mind that the alleged contemnor is the co-owner of the property, this Court should not cancel and/or declare the sale deeds as void rather the sale deed so executed should be made subject to the result of the revisional application. 25. Mr. Basu submitted even his client is agreeable to involve the property which he has purchased by selling out the aforementioned 45 bighas of land by execution of several deeds. The purchased properties are much more valuable properties than that the properties sold out by the alleged contemnor. 26. In reply, both Mr. Roychowdhury and Mr. Ghosh submitted that the law is clear and specific. There is no scope to involve the other property which might have been purchased by the alleged contemnor later on. But it is fact that the alleged contemnor himself moved two revisional applications before this Court and obtained interim order of status quo to be maintained by both sides till the disposal of the revisional application. There is no scope to involve the other property which might have been purchased by the alleged contemnor later on. But it is fact that the alleged contemnor himself moved two revisional applications before this Court and obtained interim order of status quo to be maintained by both sides till the disposal of the revisional application. He has full knowledge about it. Therefore, under no circumstances he himself would violate "the order by selling out the properties involved in the partition suit. 27. Heard the learned Counsel appearing for the respective parties and considered the materials available on record. It is on record that the alleged contemnor himself moved two revisional applications being the defendant in the partition suit and obtained an interim order as quoted hereinbefore. The order of status quo passed by this Court was in full knowledge of the contemnor. He himself is not only bound by the interim order passed but on his prayer this Court also made the applicants bound by that order. Even in spite of such order obtained by the contemnor and having full knowledge about it, the contemnor himself sold out 45 bighas of land involved in the partition suit. The plea of transfer of the property or getting the property by way of a Will from the mother of the contemnor is of no consequence. Since the properties are involved in the partition suit and the decree of partition was passed on both stages i.e. on preliminary stage and also on final stage, so long the decree is not upset by any higher Court the decree so passed have binding effect upon all the parties. The contemnor cannot deny binding effect of the decree passed by a competent Civil Court. The contention of Mr. Basu that the violation is not willful or deliberate is also not acceptable. It is clear from the affidavit filed by the contemnor that he has never denied selling of the property. He has never contended that the property was not involved in the partition suit. He has never denied that he has no knowledge about the order passed by this Court. Therefore, it is clear that the contemnor deliberately and intentionally sold out the property for his own benefit in clear violation of the order passed by this Court on his asking on the two revisional applications filed by him. He has never denied that he has no knowledge about the order passed by this Court. Therefore, it is clear that the contemnor deliberately and intentionally sold out the property for his own benefit in clear violation of the order passed by this Court on his asking on the two revisional applications filed by him. In such a situation the Hon'ble High Court and the Hon'ble Supreme Court are clear and specific on its conclusion and/or decision. In such situation, the Hon'ble High Court in the case of (Smt. Bijali Naskar) (supra) held that any alienation and/or transfer in violation of order of injunction as non est and the Hon'ble Apex Court have refused to recognise the right of such transferee. Therefore, according to law as it stands today, a transferee by virtue of a so called transfer in violation of order of injunction acquires no title and such transfer is to be treated as non-existent. Such transfer, the Apex Court comments, would defeat the ends of justice and the prevalent public policy. Learned Single Judge of this Court has followed the Hon'ble Apex Court's judgment referred in the case of (Surjit Singh & ors.) (supra). 28. Therefore, this Court is of the view that the alleged deeds of transfer in violation of order of injunction do not pass any title and the transfer is treated as non-existent. Therefore, this Court declare that the deeds executed by the alleged contemnor is void and would be treated as non-existent. 29. However, since the alleged contemnor has admitted that the property was transferred by him, this Court is not willing to impose stringent punishment upon him, he has imposed with a fine of Rs.100/- in each contempt petition which is to be paid to the petitioner within one month from date. 30. The aforementioned three contempt applications are disposed of accordingly. 31. However, since the deed is cancelled declaring void by this Court, the alleged contemnor would be at liberty to make application for refund of the stamp duty paid to the registering authority and the registering authority would decide the same in accordance with law.