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2019 DIGILAW 2845 (RAJ)

Deep Singh v. Gurmej Singh

2019-11-15

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - This Writ Petition has been preferred challenging the order dated 08.05.2019, passed by the Board of Revenue, Ajmer (hereinafter referred to as "the Board"), in a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as "the Act of 1955"), whereby the order dated 14.09.2017, passed by the Revenue Appellate Authority has been set aside and the order of the learned Sub-Divisional Officer, Raisinghnagar dated 22.03.2017 has been restored. 2. Facts relevant for the present case are that the respondent filed a suit under Section 88 of the Act of 1955, alongwith a stay petition under Section 212 of the Act, before the Sub-Divisional Officer, Raisinghnagar. The Trial Court decided the stay application on 09.10.2000 and restrained the defendant-present petitioner from transferring 12 Bighas land of Murrabba No.39 of the Chak 39 in any manner. 3. The petitioner, however, took a loan and created security interest upon the land in question on 16.02.2008. 4. Being aware of the factum of mortgaging the disputed land, the respondents moved an application under Order XXXIX Rule 2A of the Code of Civil Procedure, before the learned Sub-Divisional Officer. 5. The Sub-Divisional Officer found the present petitioner guilty of violation of ad-interim injunction granted by it and attached the land admeasuring 3.036 Hectare (including the land in dispute belonging to petitioner) and appointed Tehsildar 'Muklava' as a Receiver. 6. Feeling aggrieved of the above referred order dated 22.03.2017, passed by the Sub-Divisional Officer, the petitioner preferred an appeal before the Revenue Appellate Authority, who allowed the same by way of order vide dated 14.09.2017, while observing that since the appellant-present petitioner was prepared to deposit the entire loan amount and produce "no dues certificate", the extreme action of appointing receiver was not warranted. 7. With a view to challenge the order dated 14.09.2017, the respondent preferred a revision petition before the Board of Revenue, Ajmer under Section 230 of the Act of 1955, which came to be allowed by the Board, vide its order dated 08.05.2019. While setting aside the order dated 14.09.2017, passed by the Revenue Appellate Authority, learned member of the Board, restored the order dated 22.03.2017, passed by the SDO. 8. While setting aside the order dated 14.09.2017, passed by the Revenue Appellate Authority, learned member of the Board, restored the order dated 22.03.2017, passed by the SDO. 8. The petitioner is before this Court, under its supervisory jurisdiction, vested under Articles 226 and 227 of the Constitution of India, in a bid to get the order dated 08.05.2019, passed by the Board and the order dated 22.03.2017, passed by the SubDivisional Officer set aside/reversed. 9. Mr. D.S. Thind, learned counsel for the petitioner at the outset submitted that after filing the present writ petition, the petitioner has deposited the entire loan amount, which he had taken while creating security interest on the contentious land. A "no dues certificate" has also been placed on record, he added. 10. Challenging the order impugned passed by the Board, learned counsel for the petitioner argued that the petitioner had taken a loan and mortgaged the land in question under bonafide impression that the same did not amount to transfer and, thus, would not be in conflict with the order of injunction dated 09.10.2000, passed by the learned SDO. 11. It was also argued that even if it is assumed that taking of loan against the land in question was a breach of the interim order, the SDO ought not to have passed the extreme order of attachment of his land. He submitted that as a result of attachment of the land, petitioner's sole source of livelihood has been snatched. 12. Pointing out that the attachment in question was made on 22.03.2017 and the same is continuing even till today, he argued that in no case the attachment can continue beyond the period of one year, as provided in Sub-Rule (2) of Rule 2A of Order XXXIX of the Code. 13. Mr. B.S. Sandhu, learned counsel for the respondents, per contra, argued that the fact that disputed land has been mortgaged is not in dispute and, as such, the same is a violation of the order dated 09.10.2000, passed by the learned SDO. 14. Inviting Court's attention towards provisions contained in Section 58 of the Transfer of Property Act, he emphasized that mortgage is a mode of transfer. Learned counsel for the respondents also argued that such transfer was intentional, with the motive to defraud the plaintiffs. 15. 14. Inviting Court's attention towards provisions contained in Section 58 of the Transfer of Property Act, he emphasized that mortgage is a mode of transfer. Learned counsel for the respondents also argued that such transfer was intentional, with the motive to defraud the plaintiffs. 15. In response to the argument with respect to continuation of attachment beyond the period of one year, he submitted that period of one year prescribed in Sub-Rule (2) has to be read in context of the facts obtaining. Until the petitioner cleared the dues i.e. 19th June, 2019, the breach continued and, as such, order of attachment is required to continue for a period of one year from such date, when the breach terminated. 16. Heard learned counsel, and considered rival submissions. 17. Creation of security interest and the act of mortgaging the land definitely amounted to transfer and the same has been rightly held to be a violation of the interim order dated 09.10.2000, passed by the learned SDO, which injuncted the petitioner from alienating or transfering the disputed land. 18. But, then, the act of creation of security interest is a one time act or omission, when the petitioner mortgaged the property i.e. on 16.02.2008. Transfer by itself is an incident and cannot be said to be a recurring breach. It is the effect of act of taking loan and creation of security interest, which continues it cannot be said that petitioner has committed breach each day, during the period when the loan remained unpaid. It is a case of breach of the interim order and not that of disobedience. As such, in the considered opinion of this Court breach of the interim order passed by the SDO had taken place on 16.02.2008. 19. As such, even if the order of the SDO dated 22.03.2017 is affirmed on merit, the attachment could have continued only for a period of one year commencing from the date of attachment and appointment of Receiver. 20. This Court does not approve the arguments of Mr. Sandhu that since the loan amount has been cleared on 19.06.2019, the breach continued till 18.06.2019 and that the punishment/attachment should continue for a year from the date when the non compliance came to an end i.e. the date the mortgage was got discharged. 21. 20. This Court does not approve the arguments of Mr. Sandhu that since the loan amount has been cleared on 19.06.2019, the breach continued till 18.06.2019 and that the punishment/attachment should continue for a year from the date when the non compliance came to an end i.e. the date the mortgage was got discharged. 21. In view of the aforesaid discussion, this Court is of the firm view that the order dated 22.03.2017, passed by the SDO has out lived the statutory provisions and, thus, the order of attachment, so also the appointment of Receiver, cannot continue. 22. That apart, indisputably petitioner had offered to clear the loan before the Revenue Appellate Authority and as a matter of fact he has cleared the dues, the question of violation, no more continues at least after depositing the amount on 19.06.2019. 23. In this view of the matter, the writ petition is allowed. The attachment and appointment of Receiver shall stand withdrawn forthwith. 24. It was informed by Mr. Sandhu that after attachment, the land in question has been given for cultivation by way of auction to one Gurmeet Singh for the year 2019-2020, which period will end on 15.04.2020. 25. Though, this Court has held that appointment of Receiver cannot continue for a period of more than one year, however, since third party rights have been created and in furtherance of the order dated 22.03.2017, Gurmeet Singh has been given the land in question for cultivation, the Tehsildar concerned will handover possession of the land to the petitioner soon after the period of such contract of cultivation ends i.e. on or before 15.04.2020. 26. The learned Sub-Divisional Officer shall decide the rights of rival parties with respect to the amount received on auction of cultivation rights during the period when the land in question remained under attachment. 27. The stay petition also stands disposed of accordingly.