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2022 DIGILAW 867 (PAT)

Bharti Dalmiya v. Raghvendra Kumar Daruka

2022-10-14

PARTHA SARTHY

body2022
ORDER Re. I.A. no. 1 of 2022 and I.A no. 3 of 2022 Heard learned counsel for the appellant and learned senior counsel for the respondents. 2. I.A. no. 1 of 2022 has been filed on behalf of the appellant praying for staying further proceedings of Execution Case no. 5 of 2020 and/or to stay the dispossession of the appellant in Execution Case no. 5 of 2020 pending in the Court of learned Sub-Judge I, Aurangabad. I.A. no. 3 of 2022 has been filed on behalf of respondent nos. 1, 2 and 12 praying that the stay granted of the proceeding of Execution Case no. 5 of 2020 by order dated 21.7.2022 passed in I.A. no. 1 of 2022, be vacated. 3. It is submitted by learned counsel appearing for the appellant that while against the preliminary decree dated 30.7.2018 passed in Partition Suit no. 180 of 2010 by the learned Sub-Judge II, Aurangabad, F.A. no. 127 of 2018 has been preferred, the instant appeal has been preferred against the final decree dated 16.10.2019 passed in Partition Suit no. 180 of 2010 by the learned Sub-Judge I, Civil Court, Aurangabad. 4. On merits it is submitted by learned counsel for the appellant that the appellant was appearing in the learned Court below till 4.9.2018. By order dated 24.9.2018 a Survey Knowing Pleader Commissioner was appointed and he submitted his report on 7.3.2019. Without giving any notice to the appellant, by order dated 5.7.2019 the final decree proceedings were transferred from the Court of learned Sub- Judge IV to the Court of learned Sub-Judge I, Aurangabad. It is submitted that the appellant has merit in his appeal in so far as no notice was given to the appellant on transfer of the final decree proceedings to the Court of learned Sub-Judge I, Aurangabad, no information/notice was given to the appellant on the Survey Knowing Pleader Commissioner going for inspection of the suit property and from perusal of the order dated 16.10.2019 accepting the report of the Survey Knowing Pleader Commissioner and which is under challenge in the instant appeal, it would transpire that the same has been accepted by the learned Court below by a non speaking order devoid of any reasons. With respect to the defects, it is submitted that they have been removed pursuant to the order dated 20.7.2022 expect for one clerical defect in the certified copy of the decree. There is no impediment in grant of stay. 5. On the prayer of stay made in the interlocutory application it is submitted by learned counsel appearing for the appellant that it is not in dispute that the subject matter of the property in the case is a residential house of the appellant and in the event of dispossession, the appellant will suffer irreparable injury and loss. It is submitted that out of the total area measuring 34¼ decimal, the appellant by virtue of four sale deeds has sold a total area of only 24 decimal of land and is still owning and possessing the remaining 10¼ decimal of land with a residential house therein. While she is residing in part of the suit house, there are tenants residing in a portion of the same. She has no other alternative accommodation in the city. It s further submitted that with respect to the address given in her Aadhar Card, the appellant also owns and possesses some property at Patna where the property of her husband is situated. After suffering serious illness, her husband died on 22.2.2019. As such it is submitted that it is incorrect on part of the respondents to submit that in view of the fact that the address of the appellant in her Aadhar Card is of Patna, she does not reside in the residential house at Aurangabad. Further in support of his submissions learned counsel for the appellant relies on the judgment in the case of Smt. Tej Rani Devi vs. Smt. Indira Devi [2001 (1) PLJR 661], Atma Ram Properties (P) Ltd. vs. Federal Motors Pvt. Ltd. [2005(1) PLJR 320 (SC)] and Rajaram Prasad Gupta and Anr vs. Ramchandra Prasad and others [ (2008) 10 SCC 796 ]. 6. In reply, it is submitted by learned counsel appearing for the respondent nos. 1, 2 and 12 that by filing the application, the appellant has tried to mislead this Court by suppressing the real facts. The appellant happens to be the only daughter of Late Arun Daruka who executed the sale deeds in favour of respondent nos. 6. In reply, it is submitted by learned counsel appearing for the respondent nos. 1, 2 and 12 that by filing the application, the appellant has tried to mislead this Court by suppressing the real facts. The appellant happens to be the only daughter of Late Arun Daruka who executed the sale deeds in favour of respondent nos. 15, 16, 17 and 18 who are presently residing in the dwelling house which is also the subject matter of the instant appeal. The appellant being the married daughter, is residing at Patna in her sasural which would be evident from the contents of the memo of appeal as also the address on her Aadhar Card. It is respondent nos. 15, 16, 17 and 18 who are residing in the dwelling house and as such there is no question of dispossession of the appellant from the dwelling house situated over plot no. 196. The appellant has tried to mislead this Court by making a false statement in the interlocutory application. It is submitted that prior to the instant appeal, the appellant has filed F.A. no. 127 of 2018 challenging the judgment and preliminary decree of Partition Suit no. 108 of 2010 and the same is still pending. The learned Court below has followed the procedure and has thereafter proceeded in the Execution Case no. 5 of 2020 in accordance with law. The respondent nos. 1, 2 and 12 and the purchasers i.e. respondent nos. 15, 16, 17 and 18 are residing in the dwelling house over plot no. 196. The respondent nos. 15 to 18 are creating disturbance and are disturbing respondent nos. 1, 2 and 12 for which they have filed several applications before the district administration. In view of the submissions made above, no question of dispossession of the appellant from the dwelling house arise. 7. With respect to the judgment in the case of Tej Rani Devi (supra) it is submitted that the facts of the case being different, the same would not be applicable in the instant case. With respect to the judgments in the case of Atma Ram Properties (supra) and Rajaram Prasad Gupta (supra) it is submitted that so far as the facts of the instant case is concerned, the appellant is not residing in the suit premises, the ratio of the two judgments would be of no assistance to the appellant herein. With respect to the judgments in the case of Atma Ram Properties (supra) and Rajaram Prasad Gupta (supra) it is submitted that so far as the facts of the instant case is concerned, the appellant is not residing in the suit premises, the ratio of the two judgments would be of no assistance to the appellant herein. It is further submitted that infact the appellant here is fighting a proxy litigation on behalf of her vendees. Heard learned counsel for the parties. 8. The facts giving rise to the instant application are that Partition Suit no. 180/2010 was preferred by the plaintiffs praying therein for a preliminary decree for partition, appointment of a Survey Knowing Pleader Commissioner to carve out a separate taktha of the plaintiff’s share and thereafter the plaintiff be put in possession of the same through the process of the Court. Against the judgment dated 30.07.2018 and the decree dated 10.08.2018 the defendant no. 2-appellant preferred F.A. no. 127 of 2018 in this Court. Subsequently, the final decree was drawn up in Partition Suit no. 180 of 2010 against which the defendant no. 2- appellant preferred the instant appeal (F.A. 2 of 2022). 9. So far as the question of possession of the suit property is concerned, from perusal of the judgment dated 30.07.2018 passed in Partition Suit no. 180 of 2010, it would transpire that the plaintiff besides praying for a preliminary decree of partition to the extent of the plaintiff’s share, for appointment of a Survey Knowing Pleader Commissioner and carving out a separate taktha also prayed that the plaintiff be put in possession of the same through the process of the Court. It is also the categorical case of the appellant that being a married lady, her husband and in-laws have a residence in Patna. Her husband after suffering from serious illness for a long time, died on 22.1.2019. Besides Patna she is also residing in her residential house situated on plot no 196 in district Aurangabad. It further transpires that the appellant’s grand-father Mahabir Daruka allotted an area of 34¼ decimal land to the appellant’s father Babulal Daruka and at the same time also allotted another property in the same plot no. 196 to the appellant’s uncle. The appellant executed four sale deeds and sold 24 decimal out of the total of 34¼ decimal in plot no. 196 to respondent nos. 196 to the appellant’s uncle. The appellant executed four sale deeds and sold 24 decimal out of the total of 34¼ decimal in plot no. 196 to respondent nos. 15 to 18. With respect to respondent nos. 15 to 18 residing in the dwelling house situated on plot no. 196, the same is accepted by the respondent nos. 1, 2 and 12 in paragraph no. 8 of the reply filed on their behalf to I.A. no. 1 of 2022. Further contention of the appellant is to the effect that after sale of 24 decimal of land with part of building to respondent nos. 15 to 18, the appellant is still owning and possessing the remaining 10¼ decimal of land with house and is residing in the part of the house. Even otherwise, even if the appellant has sold part of her share, she has right to defend the same. At this stage it would be relevant to refer to the Division Bench judgment of this Court in the case of Smt. Tej Rani Devi (supra) wherein the Court held as follows:— “5. learned counsel then contended that although the execution proceeding is with respect to a residential house, but the appellants are not residing in that house and therefore, the execution proceeding is not maintainable. On the other hand, learned counsel pointed out that in the plaint itself as well as the petition for execution filed on behalf of the respondents, it was already admitted that the appellants are in possession of the house in question. In the circumstance, the decree is being executed in the execution proceeding with respect to residential house and having regard to the well settled views of this Court, we feel inclined that the execution proceeding should remain stayed with respect to the house in question.” 10. In the case of Atma Ram Properties (P) Ltd. (supra) the Hon’ble Supreme Court held as follows:— “8….Still the question which the Court dealing with a prayer for the grant of stay asks to itself is: Why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted.” 11. In the case of Rajaram Prasad Gupta (supra) the Hon’ble Supreme Court held as follows:— “4. In the case of Rajaram Prasad Gupta (supra) the Hon’ble Supreme Court held as follows:— “4. Undisputedly, the suit property is a residential house in which the appellants are residing. It is well settled that in cases where the subject of suit is residential premises and the judgement-debtor is residing in it, prayer for stay is ordinarily granted. Of course, for special reasons, it may be refused. In the present case, no special reason has been assigned by the High Court for declining the appellants' prayer for stay. This being the position, we are of the view that the High Court was not justified in refusing to grant stay.” 12. In the case of Sharadamma vs. Mohd. Pyrejan (dead) through Legal Representatives and Anr. [ (2016) 1 SCC 730 ] the Hon’ble Supreme Court held as follows:— “5. A bare reading of the provisions of Order XXII Rule 10 makes it clear that the legislature has not envisaged the penalty of dismissal of the suit or appeal on account of failure of the assignee to move an application for impleadment and to continue the proceedings. Thus, there cannot be dismissal of the suit or appeal, as the case may be, on account of failure of assignee to file an application to continue the proceedings. It would be open to the assignor to continue the proceedings notwithstanding the fact that he ceased to have any interest in the subject-matter of dispute. He can continue the proceedings for the benefit of assignee.” 13. In the case of Jai Singh vs. Gurmej Singh [2009(4) PLJR 197 (SC)] the Hon’ble Supreme Court held as follows:— “8. It is thus evident that when a co-sharer is in exclusive possession of some portion of the joint holding he is in possession thereof as a co-sharer and is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned. Vendor cannot sell any property with better rights than himself. As a necessary corollary when a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession what he transfers is his right as a co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all cosharers. 9. 9. Sale of subsequent portion of the land out of the joint holding by one of the coowners is nothing but a sale of a share out of the joint holding and is pre-emptible under Section 15(1)(b) of the Act. It is to be noted that the judgment in Bhartu's case (supra) had the seal of approval of this Court in Pokhar (dead) by Lrs. and Ors. vs. Ram Singh (Civil Appeal No. 4418 of 1986 disposed of on August 14, 2001).” 14. Thus, from the facts stated herein above, what transpires is that indisputably it was the defendant no. 2 herein who was in possession of the dwelling house over plot no. 196 over an area of 34¼ decimal which originally belonged to her father. By virtue of four sale deeds, 24 decimal out of 34¼ decimal were sold along with part of the building to respondent nos. 15 to 18 and their residing in the dwelling house on plot no. 196 has also been accepted by respondent nos. 1, 2 and 12. The categorical case of the defendant no. 2 appellant is that she is residing in part of the residential house along with 10¼ decimal of land which she has not sold. The respondent nos. 1, 2 and 12 are admittedly not in possession of the said dwelling house and thus are proceeding with the execution case filed for execution of final decree dated 12.12.2019 in Partition Suit no. 180 of 2010. Whether it is as a result of the defendant no. 2-appellant herself residing and/or her vendees ie. respondent nos. 15 to 18 residing in the dwelling house on plot no. 196 in the district of Aurangabad, in view of the ratio of the judgments of the Hon’ble Supreme Court cited herein above, specially in the case of Rajaram Prasad Gupta (supra) and Sharadamma (supra), in the opinion of the Court, the appellant has made out a case for grant of stay of the proceedings of Execution Case no. 5 of 2020. 15. Thus it is ordered that during pendency of this appeal further proceedings of Execution Case no. 5 of 2020 pending in the Court of learned Sub-Judge I, Aurangabad filed for execution of final decree dated 12.12.2019 passed in Partition Suit no. 180 of 2010 shall remain stayed. 16. I.A no. 1 of 2022 stands allowed and I.A. no. 3 of 2022 is rejected.