Research › Search › Judgment

Manipur High Court · body

2019 DIGILAW 46 (MAN)

Sanjenbam Momon Singh v. Konthoujam Paka Singh

2019-07-31

M.V.MURALIDARAN

body2019
JUDGMENT : M.V. Muralidaran, J. 1. This appeal has been filed against the order dated 11.12.2018 passed in Judicial Miscellaneous Case No. 214 of 2018 on the File of Civil Judge, Senior Division, Imphal East. 2. The appellant is the petitioner/objector and the respondents are respondents in Judicial Miscellaneous Case No. 214 of 2018. 3. Judicial Miscellaneous Case No. 214 of 2018 has been filed by the petitioner under Order 21, Rule 58 of CPC seeking to release agricultural land under Patta No. 659 covered by Dag. No. 1002/1365 measuring 0.93 acre situated at No. 81, Moidangpok standing in the name of the appellant. 4. The main ground of objection pleaded by the appellant is that he had purchased the aforesaid land from the daughter of Ch. Meera Devi under agreement on 07.7.2012 after payment of Rs. 9,00,001/- and thereafter, his name was recorded in the revenue records. According to the appellant, since then he was in possession and enjoyment of the said land without any hindrance from any person and that the judgment debtor has no right upon the said land. By the order dated 11.12.2018, the learned Civil Judge dismissed the petition filed by the appellant. 5. Heard the learned counsel for the appellant and the learned counsel for the respondents. 6. Assailing the impugned order, the learned counsel for the appellant submitted that it is the contention of the respondents 1 and 2 that the land in question was purchased by the third respondent/judgment debtor in the name of his wife Ch. Meera Devi and it was purchased for the benefit of the judgment debtor. However, the said plea was not proved by the respondents 1 and 2, who are decree holders before the Court below. He would submit that the decree holders did not discharge their burden to prove that Ch. Meera Devi is not the real owner of the property in question, but is only a benami. 7. However, the said plea was not proved by the respondents 1 and 2, who are decree holders before the Court below. He would submit that the decree holders did not discharge their burden to prove that Ch. Meera Devi is not the real owner of the property in question, but is only a benami. 7. The learned counsel further submitted that even though the appellant who is a third person has no legally valid title over the land in question, after having purchased the land from the daughter of the owner under an agreement, there is no need to disturb his possession of the land since the decree holders are not able to prove that the land is a benami property of the judgment debtor, but recorded in the name of his wife Ch. Meera Devi. 8. The learned counsel then submitted that since the judgment debtor has no right over the land in question, no person except the real owner i.e., Ch. Meera Devi has right to disturb the possession of the land by the appellant even though he has no valid title over the land and he is only a mere pattadar. According to the learned counsel, so long as Ch. Meera Devi remains as real owner of the land, the judgment debtor has no right over the land and the Court below would have attached the land to disturb the possession of the appellant. Therefore, the impugned order suffers from infirmities and also not sustainable in the eye of law. In support, the learned counsel relied upon the decision of the Hon'ble Supreme Court in Maya Devi v. Lalta Prasad, reported in AIR 2014 SC 1356 . 9. On the other hand, the learned counsel for the respondents 1 and 2/decree holders submitted that the appellant claims that the transaction between the appellant and the daughter of the judgment debtor is a genuine transaction and further asserted that there is no basis to claim that it was a genuine transaction in relation to the property under attachment. He would submit that no legal value could be given to the so called agreement for sale dated 07.7.2012 between the appellant and the daughter of the judgment debtor since it is unregistered. There can be no transfer of any right, title or interest in any immovable property except by way of a registered document. 10. He would submit that no legal value could be given to the so called agreement for sale dated 07.7.2012 between the appellant and the daughter of the judgment debtor since it is unregistered. There can be no transfer of any right, title or interest in any immovable property except by way of a registered document. 10. The learned counsel further submitted that the agreement dated 07.7.2012 is a concocted one and the revenue record entries do not confer any title. Moreover, the mutation of revenue records are subsequent to the date of decree dated 08.9.2006. 11. The learned counsel then submitted that the attachment order dated 05.5.2018 has already taken note of all the facts and circumstances, which the present appellant is adverting to in his application for releasing the attachment before passing the said attachment order which attained finality. He would contend that the daughter of the judgment debtor has no title or right or interest in the attached property. In order to defeat the execution proceedings, mutation to the revenue records had taken place subsequently. The entry in his name in the record of rights is mere entry without any right, interest or title. According to the learned counsel, Ch. Meera Devi is a benamidar and the judgment debtor is the real owner of the land. 12. The learned counsel added that while passing the order dated 05.05.2018 by the learned Judge, the agreement dated 07.7.2012 was duly considered and in no way, the right, title or interest in respect of the attached property is created in favour of the appellant as revealed and found during the course of enquiry before attachment was ordered by the learned Judge. According to the learned counsel, the learned Judge, after analysing the evidences produced before him, rightly rejected the application filed by the appellant and there is no irregularity in the impugned order. 13. I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record. 14. Suit being O.S. No. 47 of 2002 on the file of the Additional District Judge (FTC), Manipur East has been filed by the respondents 1 and 2 against respondent No. 3 for recovery of money. By the decree and judgment dated 08.9.2006, the said suit came to be decreed directing the third respondent herein to pay a sum of Rs. Suit being O.S. No. 47 of 2002 on the file of the Additional District Judge (FTC), Manipur East has been filed by the respondents 1 and 2 against respondent No. 3 for recovery of money. By the decree and judgment dated 08.9.2006, the said suit came to be decreed directing the third respondent herein to pay a sum of Rs. 14.00 lakhs within a period of one year from the date of decree, in default, he should pay interest at the rate of 6% per annum from the date of the decree till the date of payment of the amount. Aggrieved by the same, the third respondent herein preferred appeal being RFA No. 13 of 2007 before the Gauhati High Court, Imphal Bench. By the judgment dated 29.07.2008, the appeal came to be dismissed and the decree and judgment passed in the suit attained finality. Since the third respondent failed to pay the decreed amount, the decree holders have preferred execution petition, in which attachment of the property was sought and the property was also attached by an order dated 05.05.2018 after a series of applications and objections. Thereafter, the appellant had filed petition under Order 21, Rule 58 praying to release the attachment of the property with regard to agricultural land under Patta No. 659 covered by Dag No. 1002/1365 having an area of 0.93 acre of Village No. 81-Moidangpok. 15. Now the point that arises for consideration is whether the Court below was right in rejecting the petition filed by the petitioner under Order 21, Rule 58 of C.P.C. 16. The Court below framed the following two questions to decide the instant petition: (i) What is the right of the appellant/objector over the landed property in question? (ii) Whether the appellant/objector has locus standi for setting up a defence/objection against the present execution proceeding? In addition, the Court below had also framed the following questions to resolve the controversy: (i) Is the property in question a benami property? (ii) Can the objector/appellant plead on behalf of and for the judgment debtor, his wife Mira Devi and Sujata Sengupta? 17. It appears that while answering the first question, the Court below held that the appellant has no rightful and legally enforceable title over the land in question. (ii) Can the objector/appellant plead on behalf of and for the judgment debtor, his wife Mira Devi and Sujata Sengupta? 17. It appears that while answering the first question, the Court below held that the appellant has no rightful and legally enforceable title over the land in question. Similarly, for the second question, the Court below held as under: "Had the objector purchased the land in question by executing a registered sale deed from the original pattadar namely Mira Devi herself or from Sujata Sengupta by following due process of law, the case of the objector would have been different. But it was not done so." 18. For additional question No. 1, the answer of the Court below is that the appellant cannot represent the said Meera Devi or her daughter Sojata Sengupta, nor can he plead on behalf of and for the said Meera Devi or her daughter Sujata Sengupta. As far as the second additional question is concerned, the Court below held that the land in question is a benami property of the judgment debtor, but recorded in the name of his wife Meera Devi. Proceeding one step further, the Court below framed another question that "Can benami property be attached?". While answering the said question, the Court below observed as under: "Moreover, the language of Section 60 and Order 21, Rule 13 of Code of Civil Procedure, 1908 is also quite vivid to the extent that it never used the words "property recorded in the name of the judgment debtor", but used the words "property belonging to the judgment debtor" meaning thereby that even the property recorded in the name of the benamidar or trustee can also be attached. It is also clarified that the Decree Holder can take the plea that the property in question is a benami property. As pleaded by the Ld. Counsel for the DH, the plea of benami can be raised by the D.Hs. even after 19.05.1988. In this regard, the decide case of the Hon'ble Apex Court in Smt. Rebti Devi v. Ram Dutt and Anr, (Date of Judgment: 19.11.1997, page 5) may be referred to. Even a person, like, the present D.Hs. can take the plea that the attached property belongs to JD. and recorded pattadar is only the Benamidar. even after 19.05.1988. In this regard, the decide case of the Hon'ble Apex Court in Smt. Rebti Devi v. Ram Dutt and Anr, (Date of Judgment: 19.11.1997, page 5) may be referred to. Even a person, like, the present D.Hs. can take the plea that the attached property belongs to JD. and recorded pattadar is only the Benamidar. The decided case of Hon'ble Madras High Court passed in C.S. No. 469 of 2008 and 847 of 2009 para 20, 21, 25 to 27 and also of the Hon'ble Supreme Court in Appeal (Civil) No. 8098 of 2004 may be relied upon in this regard. Again as stated above, in S.C. Mehta v. P.K. Wadhwa (2004) Tax Pub (DT) 1473 (Del-HC) case, the Hon'ble Delhi High Court held that the plea of attachment of a benami property being raised by the Decree Holder was not hit by Section 4 of the Benami Transactions (Prohibition) Act, 1988 for the reason that: (1) the decree holder is not claiming to be the real owner of the property in question as referred to in Clause (1) of Section 4, nor (2) was he raising any defence based on any right in respect of the property held benami as detailed in Sub-Section (2)." 19. It appears that the appellant has no legally enforceable right over the land in question and the land in question was recorded in the name of Meera Devi, who is the wife of the judgment debtor. Further, after passing decree in the suit being O.S. No. 47 of 2002 and dismissal of the appeal being RFA. No. 13 of 2007, the land in question has been allegedly transferred by Meera Devi to her daughter Sujata Sengupta without executing any valid document. Again, the said land has been allegedly transferred by Sujata Sengupta to the appellant on the basis of an unregistered agreement dated 07.7.2012. As held by the Court below, no legal value can be given to the agreement dated 07.7.2012 since it is unregistered. Thus, it is to be held that the transfer from Meera Devi to her daughter is not a valid transfer and is mere entry of the name. As held by the Court below, no legal value can be given to the agreement dated 07.7.2012 since it is unregistered. Thus, it is to be held that the transfer from Meera Devi to her daughter is not a valid transfer and is mere entry of the name. Further, the subsequent transfer of the property in question from Sujata Sengupta to the appellant was also done without following due process of law and was mere entry of names probably in collusion with the officials of the Revenue Department. Moreover, in the absence of any legally enforceable document and rightful title over the land in question, the appellant has no locus standi to file the petition seeking to raise the attachment. 20. As rightly held by the Court below, the factual matrix of the instant case and that of Maya Devi, supra, relied upon by the learned counsel for the appellant are quite different and cannot be applied to the present case. As stated supra, the so called transfer was made after the decree dated 08.9.2006 and dismissal of the appeal preferred against the judgment dated 08.9.2006 and also after filing of the Execution Petition by the respondents 1 and 2. Thus, it is clear that subsequent transactions were made with malafide intention in order to frustrate the execution of the decree. The appellant cannot take advantage taking a plea that he is in possession of the land in question. 21. In the absence of any objection from Meera Devi against the claim of the respondents 1 and 2, it will be presumed that Meera Devi had admitted the claim of the respondents 1 and 2 and the Court below, therefore, was right in holding that the land in question is a benami property of the third respondent/judgment debtor, but recorded in the name of Meera Devi. 22. It is pertinent to mention that after passing the impugned order, the respondents 1 and 2 have filed petition being Judicial Miscellaneous Case No. 117 of 2009 praying for sale of the attached property and also for allowing them to enjoy the fruits of the decree from the sale proceeds of the same. By an order dated 20.02.2019, the Court below passed the following order: "After considering all the factual aspects mentioned above, it is ordered and directed that immovable property/agricultural land under patta no. 659 covered by dag no. By an order dated 20.02.2019, the Court below passed the following order: "After considering all the factual aspects mentioned above, it is ordered and directed that immovable property/agricultural land under patta no. 659 covered by dag no. 1002/1365 having an area of 0.93 acre of village no. 81-Moidangpok which is now recorded in the name of one Sanjenbam Momon Singh and kept attached by this Court be sold/disposed of for recovery of Decretal amount of Rs. 14,00,000/- (Rupees Fourteen Lac) only together with interests at the rate of 6% per annum from the date of passing the judgment and decree till the date of payment of amount with cost of taking out the present execution. The Bailiff of the Court is to execute this order. The sale proceeds on the sale/disposal of the aforesaid landed property be deposited in the Court and after payment of the decretal amount, the remaining amount, if any, be given back to the Judgment Debtor. The whole exercise of attachment and disposal/sale of the aforesaid landed property is to be completed within 3 (three) months from the date of passing this order. It is further observed that if the sale proceeds of the immovable property falls short on payment of the decretal amount together with interest and cost of execution, the Decree Holder is at liberty to approach this Court for further proceedings. The Bailiff of the Court is directed to take full assistant of the O.C. Patsoi Police Station at the time of execution of the decree for maintaining peace and harmony and also to prevent any untoward incident during the exercise. The Bailiff has to submit a report soon after execution of this order. Let a copy of this Order may be sent to the O.C./Patsoi P.S. for information and compliance of the order at the time of attachment and disposal of the landed property mentioned above. The Decree Holder is to take steps. Let a copy of this order be made available to each of the parties for information. Place this order as part of record of the main Execution Case. This Jdl. Misc. Case is allowed. Register it as a Jdl. Misc. Case. Announced in open Court. " 23. The Decree Holder is to take steps. Let a copy of this order be made available to each of the parties for information. Place this order as part of record of the main Execution Case. This Jdl. Misc. Case is allowed. Register it as a Jdl. Misc. Case. Announced in open Court. " 23. Thus, from the above order, it is clear that after rejection of the petition filed by the appellant under Order 21, Rule 58 of C.P.C., further proceedings were taken place, which were not objected to by the appellant. Any order passed in this case would certainly have a bearing on the proceedings, referred supra, which are ongoing. 24. For the foregoing discussions, this Court is of the view that the Court below, after analysing the rival submissions of the learned counsel appearing on either side, rightly dismissed the petition filed by the appellant under Order 21, Rule 58 of C.P.C.. This Court finds no infirmities and/or irregularities in the order of the Court below impugned in this appeal and the appeal is liable to be dismissed. 25. In the result, the appeal is dismissed. No costs.