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2019 DIGILAW 2088 (RAJ)

Chhatraveer Singh v. Colonel Bhawani Singh

2019-07-31

SANGEET LODHA, VINIT KUMAR MATHUR

body2019
JUDGMENT Sangeet Lodha,J. - This intra court appeal is directed against order dated 24.11.17 passed by the learned Single Judge of this court, dismissing the writ petition preferred by the appellant against the order dated 4.10.17 passed by the Divisional Commissioner, rejecting an application filed by him for impleading him as party to the proceedings. The appellant has also challenged the legality of the order dated 30.10.17 passed by the Divisional Commissioner, whereby the appeal preferred by the first respondent, questioning the legality of the patta of the disputed land issued in favour of late Shri Ramsingh represented by his legal representative Smt. Kailash Kanwar, proforma respondent herein, has been allowed. 2. Precisely, the case set out by the appellant before the learned Single Judge was that the appellant had purchased disputed plot no.189-ZSB vide registered sale deed from late Shri Ramsingh and thus, being bonafide purchaser for value he ought to have been impleaded as party to the proceedings pending before the Divisional Commissioner, wherein the legality of the patta issued in favour of the appellant's predecessor in title was questioned. According to the appellant, the patta of the disputed plot was admittedly issued by Jodhpur Development Authority in favour of late Shri Ramsingh and thus, the appellant claiming the title over the disputed land on the strength of the sale deed executed in his favour, duly registered, could not have been denied an opportunity of hearing. 3. A perusal of the impugned order reveals that the learned Single Judge while noticing the startling fact of the case, where the patta of the disputed plot was obtained by the appellant's predecessor in title by committing fraud, keeping in view the fact that the appeal was allowed by the Divisional Commissioner, extended an opportunity of hearing to the appellant to canvas his arguments on the merits of the case. 4. The appellant raised an objection before the learned Single Judge regarding appeal for cancellation of patta being filed before the Divisional Commissioner with delay. The learned Single Judge opined that the equity cannot come to rescue of those who are in any manner benefited by fraud. The court found that the patta on the basis of which the appellant is claiming right was apparently got issued on the strength of a forged receipt, which did not belong to disputed plot. The learned Single Judge opined that the equity cannot come to rescue of those who are in any manner benefited by fraud. The court found that the patta on the basis of which the appellant is claiming right was apparently got issued on the strength of a forged receipt, which did not belong to disputed plot. The court found that the receipt in regard to the plot in question was issued by the society, the respondent no.3, in favour of one Smt. Gyani Devi for a different plot. The learned Single Judge also noticed that the appellant so as to come out of the criminal case registered against him, made a statement before the police that he has nothing to do with the patta issued and he has received the money back which was paid as sale consideration to Shri Ramsingh. The court observed that the first respondent who was wronged by late Shri Ramsingh on the strength of forgery cannot be compelled to go to the Civil Court for getting the sale deed cancelled, particularly when, he claims to be in possession of the disputed plot. The court observed that the very basis of the sale deed executed in favour of the appellant having ceased to exist, the same would carry no value and therefore, there is no compulsion for the first respondent to approach Civil Court to get it set aside. Accordingly, the writ petition has been dismissed by the learned Single Judge while giving liberty to the appellant to avail the remedy as may be open to him in law before the court of competent jurisdiction. 5. Learned counsel appearing for the appellant contended that the application preferred by the appellant for impleading him as party respondent has been rejected by the Divisional Commissioner in arbitrary and cursory manner. Learned counsel submitted that the statement made by the appellant during the police investigation under Section 161 Cr.P.C. is not admissible in evidence and thus, the learned Single Judge has seriously erred in relying upon the same while arriving at the finding that the patta was obtained by the appellant's predecessor in title by committing fraud. Learned counsel submitted that the statement made by the appellant during the police investigation under Section 161 Cr.P.C. is not admissible in evidence and thus, the learned Single Judge has seriously erred in relying upon the same while arriving at the finding that the patta was obtained by the appellant's predecessor in title by committing fraud. Learned counsel submitted that the appellant purchased the disputed plot by way of registered sale deed on the strength of the patta issued in favour of late Shri Ramsingh and thus, cancellation thereof without extending an opportunity of hearing to him, is ex facie violative of principle of natural justice. Learned counsel submitted that had the opportunity been extended to the appellant, he would have submitted the relevant record before the Divisional Commissioner in support of his claim. The opportunity extended by the learned Single Judge cannot be a substitute for the appellant's entitlement for opportunity of hearing before the Divisional Commissioner and therefore, the order impugned deserves to be set aside. 6. On the other hand, the counsel appearing for the respondent submitted that late Ramsingh, the appellant's predecessor in title, obtained the patta of the disputed plot from Jodhpur Development Authority on the strength of the forged receipt. In this regard, the first respondent had lodged an FIR with the Police Station, Mahamandir for offences under Sections 420, 120B, 467, 468, 471 & 474 IPC. The appellant was interrogated by the police and his statement under Section 161 Cr.P.C. were recorded wherein he categorically stated that he has received the sale consideration back and he has nothing to do with the patta issued in favoaur of Ramsingh on the strength of the forged document. He stated that neither he nor any witness to the sale deed was aware about the forgery committed by Shri Ramsingh. Learned counsel submitted that taking note of the fact that the appellant was bonafide purchaser for value and taking his statement in this regard as correct, no charge sheet was filed by the police against him and now, he having come out of the criminal case as aforesaid, made an attempt to defend the proceedings initiated for cancellation of patta. Learned counsel submitted that taking note of the fact that the appellant was bonafide purchaser for value and taking his statement in this regard as correct, no charge sheet was filed by the police against him and now, he having come out of the criminal case as aforesaid, made an attempt to defend the proceedings initiated for cancellation of patta. Learned counsel submitted that on the facts and in the circumstances of the case, when the patta obtained by fraud has been cancelled by the competent authority, the learned Single Judge has committed no error in relegating the appellant to appropriate remedy available under the law. 7. Mr. Suniel Purohit, learned counsel appearing for the Jodhpur Development Authority has supported the order passed by the Divisional Commissioner. 8. We have considered the submissions of the learned counsel for the parties and perused the material on record. 9. Indisputably, on the fraud being committed by Ramsingh in obtaining patta of the disputed plot from JDA Jodhur, the first respondent lodged an FIR in the Police Station, Mahamandir and thereupon, a case for offences under Sections 420, 120B, 467, 468, 471, 474 IPC was registered and the investigation commenced. As per the record of Brigadier Zabar Singh Educational Society, the receipt produced by Shri Ramsingh does not relate to the disputed plot, which as a matter of fact was issued to Smt. Gyani Devi w/o Shri Purandas for a different plot. The disputed plot was allotted to the first respondent vide receipt no.2278/14.4.82 and not to Shri Ramsingh. It has come on record that the appellant while submitting the original sale deed before the Investigating Officer, stated that he was not aware about the fraud committed and thus, considering him to be a bonafide purchaser, no charge sheet was proposed against him though, it has come on record that while claiming patta from JDA on the basis of forged receipt he was accompanying Ramsingh. Be that as it may, on the facts and in the circumstances of the case, the order impugned passed by the Divisional Commissioner cancelling the patta issued in favour of late Shri Ramsingh does not warrant any interference by this court in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India and thus, the learned Single Judge has committed no error in declining to interfere with the order impugned passed by the Divisional Commissioner while giving liberty to the appellant to avail the remedy available under the law before the court of competent jurisdiction. 10. No case for interference by us in intra court appeal jurisdiction is made out. 11. The intra court appeal is therefore, dismissed. No order as to costs.