Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 945 (RAJ)

Kalicharan v. Roomali

2022-03-23

PRAKASH GUPTA

body2022
JUDGMENT : Prakash Gupta, J. 1. This revision petition has been filed by the petitioners-Non applicants (for short, 'the Non Applicants') against the order dated 16.3.2017 passed by Addl. District Judge No. 4, Bharatpur (for short, 'the Executing Court') in Misc. Application No. 2/2015, whereby the application filed by the objectors-applicants (for short, 'the applicants') under Section 47 read with Order 21 Rule 97 and 101 CPC has been allowed and the judgment and decree dated 13.1.2004 has been declared in executable and resultantly the execution petition no. 112/2014 titled Kalicharan v. Hari Singh has been dismissed. 2. Facts of the case are that about 2½-3 years ago from 20.1.1990, an oral agreement to sell was alleged to be entered into by Mauli Ram with Kali Charan in relation to 1 bigha and 3 biswa of land situated in khasra no. 828, kasba Bharatpur Chak No. 1, Tehsil & Distt. Bharatpur in a sale consideration of Rs. 64,400/-, out of which Rs. 60,000/- in cash were said to be given by Kali Charan to Mauli Ram at that time and possession of the land in question was handed over to Kali Charan. Subsequently on 20.1.1990, agreement to sell was executed and the balance sale consideration of Rs. 4400/- in cash were received by Mauli Ram. Since the land in question was under acquisition by UIT, Bharatpur, it was agreed that whenever the said land would be released from UIT, Bharatpur, Mauli Ram would execute the sale deed in favour of the purchaser or the person nominated by Kali Charan. It was further mentioned that if the said land is not released and if compensation is given by UIT, Bharatpur, then the purchaser would be entitled to get compensation of the land in question. 3. Subsequently Mauli Ram expired. Kali Charan filed the suit for specific performance of the agreement against the sons of Mauli Ram and UIT, Bharatpur. A compromise was arrived at and on that basis, on 13.1.2004 a compromise decree came to be passed. An execution petition was filed. In the said execution petition, Rumali wife of Mauli Ram and Leelawati, daughter of Mauli Ram filed objections under Section 47 read with Order 21 Rule 97 and 101 CPC, which were replied by the non applicants. A compromise was arrived at and on that basis, on 13.1.2004 a compromise decree came to be passed. An execution petition was filed. In the said execution petition, Rumali wife of Mauli Ram and Leelawati, daughter of Mauli Ram filed objections under Section 47 read with Order 21 Rule 97 and 101 CPC, which were replied by the non applicants. After hearing the arguments, the executing Court vide its order dated 16.3.2017 allowed the objections, declared the judgment and decree dated 13.1.2004 in executable and dismissed the execution petition no. 112/2014. Hence, this revision petition has been filed. 4. Learned counsel for the non applicants submits that after the death of Mauli Ram, land in question was entered in the name of his sons namely Hari Singh and Charan Singh in revenue records. At that time, Hindu Succession Act, 2005 was not in force, therefore, the names of applicants were not entered in the revenue record. He further submits that the non applicants are having possession of the land in question much prior to the agreement to sell dated 20.1.1990 and after issuance of the Notification under Section 4 of the Land Acquisition Act on 9.7.1987 and Notification under Section 6 on 30.8.1988, possession of the land has not been taken from them. He further submits that even otherwise, after issuance of the aforesaid Notifications, the non applicants are entitled to compensation. However, the learned executing court has utterly failed to consider this aspect of the matter and committed material illegality. On this count, the impugned order is liable to be quashed and set-aside. 5. On the other hand, learned counsel for the respondents submits that the purported agreement to sell was executed on 20.1.1990, whereas much prior to the said agreement to sell, Notification under Section 4 of the Land Acquisition Act, 1894 (for short, 'the Act of 1894') was issued on 9.7.1987 and Notification under Section 6 was issued on 30.8.1988. Since no objections were filed, land in question was acquired by UIT, Bharatpur and award was passed on 28.7.1990. The said award dated 28.7.1990 was challenged by some persons by filing writ petitions (S.B. Civil Writ Petition No. 5434/1990, S.B. Civil Writ Petition No. 1839/1991 and other connected cases) before this Court, which were allowed vide order dated 8.12.1993. Since no objections were filed, land in question was acquired by UIT, Bharatpur and award was passed on 28.7.1990. The said award dated 28.7.1990 was challenged by some persons by filing writ petitions (S.B. Civil Writ Petition No. 5434/1990, S.B. Civil Writ Petition No. 1839/1991 and other connected cases) before this Court, which were allowed vide order dated 8.12.1993. Thereafter D.B. Civil Special Appeal (Writ) No. 164/1994 came to be filed by UIT, Bharatpur challenging the order dated 8.12.1993 passed by the learned Single Judge of this Court, which was allowed vide judgment dated 18.4.1996 and the order dated 8.12.1993 passed by the learned Single Judge was reversed and set-aside and resultantly the writ petitions were rejected. Thereafter, possession of the land in question was taken over on 13.8.1996, land was vested in UIT, Bharatpur and compensation was paid on 10.8.1998. It was further submitted that on the basis of purported agreement to sell dated 20.1.1990, the suit was filed on 7.2.1999, which was time barred, but without its decision on merits, a collusive decree was obtained on the basis of compromise. It was further submitted that the land in question was ancestral property and the applicants were also having their share in the land in question, despite that they were not impleaded as a party in the suit and obtained the fraudulent decree. 6. They further submit that Notification under Section 4 of the Act of 1894 was issued on 9.7.1987 and the Notification under Section 6 was issued on 30.8.1988 i.e. much prior to the purported agreement to sell dated 20.1.1990. On the basis of the said agreement to sell dated 20.1.1990, the non applicants, who are stepping under the shoes of the original khatedar, can claim compensation only. In support of their case, they have relied upon the following judgments: i) The Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Cooperative Housing Society Jaipur & Ors. reported in AIR 2013 Supreme Court 1226 ii) Meera Sahni v. Lt. Governor of Delhi & Ors. reported in 2008 VIII AD (S.C.) 596 iii) Smt. Sneh Prabha v. State of U.P. & Another reported in AIR 1996 SC 540 iv) U.P. Jal Nigam, Lucknow through its Chariman and another v. M/s. Kalra Properties (P) ltd. Lucknow and others reported in AIR 1996 Supreme Court 1170 Heard. Considered. 7. Governor of Delhi & Ors. reported in 2008 VIII AD (S.C.) 596 iii) Smt. Sneh Prabha v. State of U.P. & Another reported in AIR 1996 SC 540 iv) U.P. Jal Nigam, Lucknow through its Chariman and another v. M/s. Kalra Properties (P) ltd. Lucknow and others reported in AIR 1996 Supreme Court 1170 Heard. Considered. 7. In the case of the Rajasthan State Industrial Development and Investment Corporation (supra), it has been held by the Hon'ble Apex Court:- "7. There can be no quarrel with respect to the settled legal proposition that a purchaser, subsequent to the issuance of a Section 4 Notification in respect of the land, cannot challenge the acquisition proceedings, and can only claim compensation as the sale transaction in such a situation is void qua the Government." 8. In the case of U.P. Jal Nigam, Lucknow (supra), it has been held by the Hon'ble Apex Court: "4. ..though the respondent acquired no title to the land, at best he would be entitled to step into the shoes of the owner and claim payment of the compensation." 9. In the case of Smt. Sneh Prabha (supra), it has been held by the Hon'ble Apex Court: "5. .. Therefore, any alienation of he land after the publication of the notification under Section 4 (1) does not bind the Government or the beneficiary under the acquisition. On taking possession of the land, all rights, titles and interests in land stands vested in the State, under Section 16 of the Act, free from all encumbrances and thereby absolute title in the land is acquired thereunder." 10. From a perusal of the material on record, it is evident that the civil suit no. 186/2003 titled Kali Charan v. Hari Singh was decreed by the Trial Court on the basis of compromise and a compromise decree dated 13.1.2004 came to be passed. Thereafter the decree holder filed an execution petition, in which he did not pray for execution of the whole decree and only prayed for registration of the sale deed. 186/2003 titled Kali Charan v. Hari Singh was decreed by the Trial Court on the basis of compromise and a compromise decree dated 13.1.2004 came to be passed. Thereafter the decree holder filed an execution petition, in which he did not pray for execution of the whole decree and only prayed for registration of the sale deed. In this regard, the Executing Court while dismissing the execution petition, rightly observed as under: ^^bl izdkj ls mDr foospu ls ;g Li"V gS fd U;k;ky; esa fMØhnkj dkyhpj.k dh vksj ls] tks btjk; izkFkZuki= izLrqr fd;k x;k gS] mlesa fMØhnkj dkyhpj.k dh vksj ls dsoy ek= o;ukek iathd`r djkus dk gh vuqrks"k pkgk x;k gS] tcfd jkthukek ls nkok fMØh Qjek;k x;k gSA fMØh dh iw.kZ vuqikyuk djkus ds fy;s ;g fu"iknu izkFkZuk i= izLrqr ugh fd;k x;k gSA fMØhnkj dkyhpj.k dh vksj ls lEiw.kZ fMØh dh ikyuk djus ds fy;s ;g btjk; izkFkZuki= is'k ugh fd;k x;k gS] tcfd fMØh esa jkthukek gh 'krZ;qDr Fkk] ftlesa Li"V vafdr gS fd ^^uxj lq/kkj U;kl] Hkjriqj ls vokfIr dh jkf'k feyus ij mDr vokfIr dh jkf'k en;wu }kjk fMØhnkj@oknh dks nh tk;sxhA ;fn mDr Hkwfe vokfIr ugha gksrh gS rks jftLVªh en;wuku }kjk fMØhnkj@oknh ds gd esa djkbZ tk;sxhA^^ 11. Further, a perusal of the purported agreement to sell dated 20.1.1990 also makes it clear that the non applicants were already knowing the fact that the land in question had been acquired by UIT. Since the Notification under Section 4 of the Act of 1894 was issued on 9.7.1987 and the Notification under Section 6 was issued on 30.8.1988 i.e. much prior to the purported agreement to sell dated 20.1.1990 and thereafter land was acquired of UIT, Bharatpur, which was upheld by the Division Bench of this Court vide its judgment dated 18th April, 1996 in D.B. Civil Special Appeal (Writ) No. 164/1994. On passing the award, taking over the possession of the acquired land on 13.8.1996 and vesting the land in UIT, the agreement to sell dated 20.1.1990 had no legal sanctity and the same is void in the eye of law. Therefore, the Executing Court rightly allowed the objections filed by the applicants under Section 47 read with Order 21 Rule 97 and 101 CPC and held the decree in executable. 12. The finding arrived at by the executing court is just and proper, with which I fully concur. Therefore, the Executing Court rightly allowed the objections filed by the applicants under Section 47 read with Order 21 Rule 97 and 101 CPC and held the decree in executable. 12. The finding arrived at by the executing court is just and proper, with which I fully concur. There is no illegality, perversity or jurisdictional error in the impugned order passed by the executing court. 13. For the aforesaid reasons, I find no force in this revision petition and the same being bereft of any merit is liable to be dismissed, which stands dismissed accordingly. However, the non applicants, if advised, can seek appropriate legal remedy to get compensation.