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2020 DIGILAW 642 (ALL)

Bachai Since Deceased v. Ram Nain

2020-02-28

SIDDHARTHA VARMA

body2020
JUDGMENT : 1. A suit for specific performance of an agreement was filed by the respondent-Ram Nayan. It was stated that Samujh, the predecessor in interest of the defendant had agreed to sell his share of the property in favour of the plaintiff on 25.1.1969 for a consideration of Rs.8,000/-. Through the agreement it was agreed that that defendant would execute the sale deed in favour of the plaintiff and get the entire consideration at the time when the sale would be registered before the Sub-Registrar. It was further agreed that sale would be possible only after Samujh got a bhumidhari certificate of his share. To get the property converted from Sirdari to Bhumidhari, an application was also moved before the Tehsildar by Samujh on 2.5.1969. Even though there was no right to transfer the land, Samujh executed a registered sale deed in favour of the plaintiff Ram Nayan and had also received Rs.8,000/-. Samujh, the brother of the defendant-Bachai, died on 2.10.1969 and, therefore, when the defendant did not execute the sale deed in favour of the plaintiff, the suit was filed. At the trial stage, the suit was decreed in favour of the plaintiff only to the extent that he could recover Rs.8,000/-from the defendant. However, the remaining claim was rejected. This gave rise to two First Appeals, one being First Appeal No.32 of 1980 by which the defendant prayed that the portion of the decree by which the Trial Court had directed for return of Rs.8,000/-be set-aside and another being First Appeal No.349 of 1980 by which the plaintiff desired the decreeing of the suit in toto. 2. First Appeal No.32 of 1980 filed by the defendant was dismissed while the First Appeal No.349 of 1980 filed by the plaintiff and others was allowed and the suit was decreed in toto. The defendant-Bachai filed a Second Appeal being Second Appeal No.3123 of 1981 but this Second Appeal was confined to the decree which was passed in First Appeal No.32 of 1980. The Second Appeal did not challenge the decree as was passed in First Appeal No.349 of 1980. Second Appeal No.3123 of 1981 was admitted on 16.12.1981 but was dismissed for want of prosecution on 15.9.2006. The Second Appeal did not challenge the decree as was passed in First Appeal No.349 of 1980. Second Appeal No.3123 of 1981 was admitted on 16.12.1981 but was dismissed for want of prosecution on 15.9.2006. A Restoration Application for recalling the order dated 15.9.2006 was filed which was again dismissed on 8.11.2006 with the following order : "This second appeal was dismissed for want of prosecution on 24.3.2003. It was, however, restored on 22.8.2003 on the condition that the appeal shall be argued immediately after 15 days and was directed to be listed. The appeal was on the list for final hearing, thereafter. On 28.10.2005 it was directed to be listed in the next cause list. On 28.11.2005 a prayer was made by Shri Mahesh Narain Singh that the matter be passed over. It was again passed over on the request of appellant on 30.3.2006, 5.5.2006 and then on 19.5.2006 it was directed to be listed peremptorily on 18.7.2006. On 18.7.2006 once again a request was made to adjourn the case on which learned Judge hearing the matter released the appeal. It was then nominated to this Court. On 01.9.2006 on the request of learned counsel for the appellant it was directed to be listed in the next cause list. On 15.9.2006 no one appeared and the second appeal was dismissed. The order sheets now clearly establish that the appellants do not want the second appeal of 1981 to be heard by the Court. Today once again when the Court asked whether the learned counsel for the parties are ready to argue, the appellants have again requested for adjournment. Shri Y.S. Saxena pointed out that the appeal has been filed against the civil judge's decision on a Civil Appeal No.32 of 1980, which was infact dismissed in favour of the appellant. The appellant should have been aggrieved by the decision of civil judge on appeal No.349 of 1980, which was partly allowed. The memo of appeal shows that the appellants have not preferred the appeal against the judgment in first appeal No.349 of 1980. In this manner the appeal is also defective. The second restoration application is accordingly rejected for want of prosecution with costs." 3. There was one more Restoration Application filed for recalling the order dated 8.11.2006 which was again rejected on 1.10.2007. In this manner the appeal is also defective. The second restoration application is accordingly rejected for want of prosecution with costs." 3. There was one more Restoration Application filed for recalling the order dated 8.11.2006 which was again rejected on 1.10.2007. Another application for correcting the order dated 1.10.2007 along with a Modification Application was filed which was rejected on 23.10.2009. Thereafter, the instant Second Appeal being Second Appeal Defective No.381 of 2010 was filed. Initially notices were issued to the respondents. However, on 11.11.2011, this Court condoned the delay of almost 28 years and allowed the Delay Condonation Application. The Second Appeal was thereafter numbered as 68 of 2012. Subsequently, the appeal was admitted on 30.4.2012 and the following substantial question of law was formulated : "Whether lower appellate court was legally justified in treating the sale deed dated 02.05.1969 executed by late Sri Ram Samujh in favour of original plaintiffs respondents Ram Nayan and others as an agreement for sale on the ground that on the date of execution of the sale deed, Ram Samujh was only sirdar of the agricultural land in dispute and application for grant of bhoomidhari sanad filed on the same date was afterwards rejected on the ground of death of Ram Samujh who died on 02.09.1969? " 4. Since there were other respondents also, notices were issued on 30.4.2012 itself. The Court on the Stay Application while issuing notices made note of the fact that the decree for specific performance had already been executed in favour the plaintiff-respondents. It also directed that the appellants would not interfere in the possession of the plaintiff-respondents. The plaintiff-respondents were also restrained from alienating the property in dispute. The order dated 30.4.2012 which was passed on the Stay Application is being reproduced here as under : "Issue notice. Steps to serve unrepresented respondents shall be taken both ways i.e. through ordinary process as well as registered post. Sale deed pursuant to the impugned decree for specific performance has been executed by the executing court in August, 2010 in favour of the plaintiffs respondents. Accordingly, it is directed that until further order appellants shall not interfere in the possession of the plaintiffs respondents. Simultaneously, plaintiffs respondents are also restrained from alienating the property in dispute." 5. Sale deed pursuant to the impugned decree for specific performance has been executed by the executing court in August, 2010 in favour of the plaintiffs respondents. Accordingly, it is directed that until further order appellants shall not interfere in the possession of the plaintiffs respondents. Simultaneously, plaintiffs respondents are also restrained from alienating the property in dispute." 5. Learned counsel for the defendant/appellant submitted that Samujh, the brother of the defendant-Bachai had never agreed to sell the land and the sale deed which was executed despite the fact that there was no bhumidhari sanad in favour of the defendant was absolutely a waste paper. 6. Learned counsel for the defendant-appellant further submitted that the application filed by Samujh for the grant of bhumidhari sanad was rejected by the Assistant, First Class on 5.8.1970. The plaintiff had assailed the order dated 5.8.1970 but the Revisional Court i.e. the Court of Additional Commissioner, Gorakhpur Division, Gorakhpur had dismissed the Revision and the Board of Revenue also did not grant the bhumidhari sanad on the ground that the person who had applied had died. The plaintiff had filed a writ petition before this Court being Writ Petition No.997 of 1973 which was also dismissed on 12.9.1973 and he, therefore, submitted that Samujh never got the bhumidhari sanad. Learned counsel for the defendant-appellant further submitted that even the U.P. Laws (Amendment) Act, 1977, would not bring any relief to plaintiff as the enactment had not made the deceased brother of the defendant a bhumidhar. Learned counsel for the defendant also raised the question of limitation with regard to the filing of the suit itself. 7. Learned counsel appearing for the plaintiff-respondent, however, in reply submitted that the appellant was an extremely mischievous person. When the earlier second appeal being Second Appeal No.3123 of 1981 was dismissed in default on 15.9.2006 and when on 8.11.2006 the High Court had specifically pointed out that as the second appeal was filed only against the judgment and decree passed by the Civil Judge in Civil Appeal No.32 of 1980 and no second appeal was filed against the judgment and decree passed in Civil Appeal No.349 of 1980, the appellant in that Second Appeal would get no relief, yet the appellant waited for good four years thereafter to file the subsequent Second Appeal in the year 2010. He submitted that the Second Appeal was wrongly entertained after the condonation of delay. 8. Learned counsel for the plaintiff-respondent opposed the Second Appeal on the following grounds :- (i) When the earlier Second Appeal was dismissed on 15.9.2006 and the fact that thereafter while deciding the Restoration application the High Court had on 8.11.2006 observed that no substantial relief could be granted to the appellant in the Second Appeal No.3123 of 1981, then there was absolutely no reason why the appellant should have waited for four full years to file the instant Second Appeal. Learned counsel for the respondent, therefore, submitted that the filing of the Appeal would be termed as initiating a vexatious litigation and the Supreme Court, he submitted, in a case reported in (1977) 4 SCC 467 : T. Arivandandam vs. T.V. Satyapal & Anr. had decried the initiation of any vexatious litigation. He submitted that the Second Appeal, therefore, ought to have been dismissed at the very initial stage itself. (ii) Learned counsel for the respondent submitted that when the appeal was admitted, all the respondents were not represented and in fact for one respondent Jogender, Vakalatnama was filed on 28.7.2014 and, therefore, the other respondents whom the present counsel was representing, could, as per law laid down in AIR 1917 PC. 179 : Krishnasami Panikondar vs. Ramasami Chettiar & Ors., once again assail the condonation of delay. Learned counsel submitted that delay could not have been condoned after 28 years of the passing of the decree. He submitted that in a period of 20 years a generation had grown from childhood to adulthood and in fact the decree for specific performance had also been executed by the Executing Court on 4.9.2010. Rights had accrued to the plaintiff and their legal heirs which could not be now snatched away on account of the fact that the appellant had slept for good 28 years. He submitted that in the Revenue Law as also in the common laws possession had given a right to the plaintiffs. Even if the appellant had filed the Second Appeal against a wrong decree, then also the delay could not be condoned as after 2006 he waited for good four years to file the instant Second Appeal and, therefore, he submitted that if the Second Appeal was allowed, it would result in an irreversible injury and damage to the plaintiff-respondent. Even if the appellant had filed the Second Appeal against a wrong decree, then also the delay could not be condoned as after 2006 he waited for good four years to file the instant Second Appeal and, therefore, he submitted that if the Second Appeal was allowed, it would result in an irreversible injury and damage to the plaintiff-respondent. (iii) Learned counsel for the respondent submitted that as per Explanation-4 of Section 11 of the Code of Civil Procedure, the instant Second Appeal was also barred by principles of constructive res-judicata as when the earlier appeal was filed and when it was held that it was not maintainable, then the subsequent Second Appeal could not have been filed on fresh grounds. (iv) Learned counsel for the plaintiff-respondent further submitted that even on merits, the Second Appeal was to be dismissed as the First Appellate Court had clearly held that there was an agreement to sell the land and this agreement, the defendant had to honour, specially when the defendant had by operation of law become a bhumidhar with transferable rights and, therefore, he submitted that the substantial question of law also if is answered would go against the defendant-appellant. 9. Having heard learned counsel for the defendant-appellant and the learned counsel for the plaintiff-respondent, I am of the view that even though the Second Appeal had been entertained after condoning the delay, I feel that no substantial relief can be granted to the appellant. The Second Appeal was entertained after 28 years of the passing of the decree in First Appeal No.349 of 1980. A generation had grown since the decree in the First Appeal was passed. The decree had also been executed. Even though the respondent no.1 was represented on the date when the Appeal was admitted, for the other respondents notices were issued and in fact one respondent had also filed Vakalatnama in the year 2014 and, therefore, as per AIR 1917 PC 179 , the question of limitation could be looked into at the time of hearing also. This Court upon going through the affidavit in support of the delay condonation application finds that there was absolutely no ground for the condonation of delay. 10. However, since the appeal was admitted, it was also, therefore, heard on merits. This Court upon going through the affidavit in support of the delay condonation application finds that there was absolutely no ground for the condonation of delay. 10. However, since the appeal was admitted, it was also, therefore, heard on merits. I find that the finding of fact regarding the agreement to sell was such a finding of fact which could not be now assailed at the second appellate stage as the agreement was writ large in the actions of the deceased Samujh. Even the registered sale deed dated 2.5.1969 was an indication of the fact that he intended to honour the agreement. Therefore, the question of law as was framed is also answered against the appellant. There is absolutely no merit in the Second Appeal. However, since on 19.1.2012, the counsel appearing for the respondent no.1 had agreed that if the appeal was dismissed, he would pay some more amount to the appellant, it is directed that a further amount of Rs.2,00,000/- be paid to the appellants. 11. With these observations, the Second Appeal is dismissed.