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2023 DIGILAW 174 (RAJ)

Devi Singh v. Chhitar Mal Bunkar

2023-01-13

NARENDRA SINGH DHADDHA

body2023
ORDER : 1. This Civil First Appeal under section 96 of CPC against the judgment and decree dated 30.01.2018 passed by learned ADJ No. 2, Jaipur District, Jaipur in Civil Suit No. 67/2017(35/2008), whereby the suit for specific performance of contract and permanent injunction has been decreed in favour of respondent No. 1-plaintiff (for short 'the plaintiff'). 2. Learned counsel for the appellants submits that appellants had filed an appeal as well as application under Section 96 read with 151 CPC for seeking leave to appeal against the judgment and decree dated 30.01.2018. Learned counsel for the appellants submits that appellants are bona fide purchasers. They had purchased the rights of the khatedar by way of sale deed dated 31.12.2014. Learned counsel for the appellants submits that plaintiff had filed a suit for specific performance of the agreement dated 24.03.2007 and permanent injunction against the respondent No. 2-Ramkaran (for short 'the defendant No. 1') in the year 2008 in which plaintiff had clearly stated that as per the agreement, possession of the disputed land was handed over to him and registry of the suit property was to be done. Learned counsel for the appellants also submits that after service notice on defendant No. 1, he did not attend the court, therefore, ex-parte proceedings were drawn against him and suit was decreed vide order dated 04.08.2011 in favour of plaintiff. After that, defendant No. 1-Ramkaran had filed an application under Order 9, Rule 13 before the trial court which was allowed by the trial court vide order dated 27.01.2016 and ex-parte decree was set aside. After that, defendant No. 1-Ramkaran filed reply in which he stated that he had sold the disputed land to respondent No. 3-Hasti Devi (for short 'the defendant No. 2') vide sale deed dated 04.10.2007. After that, plaintiff filed an application under Order 1, Rule 10 CPC before the trial court for impleading the defendant No. 2 as a party in the suit. The said application was allowed and notice was sent to the defendant No. 2 but service of defendant No. 2 could not be affected. So, trial court directed for substituted service of notice on defendant No. 2. After publication of notice, defendant No. 2 did not attend the court. Defendant No. 1 was also absent before the trial court. The said application was allowed and notice was sent to the defendant No. 2 but service of defendant No. 2 could not be affected. So, trial court directed for substituted service of notice on defendant No. 2. After publication of notice, defendant No. 2 did not attend the court. Defendant No. 1 was also absent before the trial court. So, trial court decreed the suit ex-parte against the defendants vide judgment dated 30.01.2018 and cancelled the sale deed executed in favour of defendant No. 2 by the defendant No. 1 on 04.10.2007. Learned counsel for the appellants also submits that appellants were not aware of the said judgment and disputed land was acquired by the Urban Development Department in the year 2009. Defendant No. 2-Hasti Devi died on 08.05.2017 much prior to the paper publication of the notices on 29.05.2017. Learned counsel for the appellants also submits that legal heirs of Hasti Devi were not brought on record. Decree passed against Hasti Devi is null and void on account of having been passed against a dead person. Learned counsel for the appellants also submits that appellants had purchased Khatedari rights from Hasti Devi. Land in question was transferred by sale deed dated 04.10.2007 in favour of Hasti Devi and mutation was in her name. Hasti Devi did not have any knowledge of earlier agreement to sale dated 24.03.2007. When appellants enquired, then they knew about the present judgment and decree. Learned counsel for the appellants also submits that rights of the appellants are affected by the judgment and decree dated 30.01.2018. So, leave to appeal be granted in favour of the appellants for contesting the appeal filed by the appellants. 3. Learned counsel for the appellants has placed reliance upon the following judgments : (1) Amit Kumar Shaw & Ors. v. Farida Khatoon & Ors. in Civil Appeal No. 2592/2005 decided on 13.04.2005; (2) Dhurandhar Prasad Singh v. Jai Prakash University & Ors. in Appeal (Civil) No. 4481/2001 decided on 24.07.2001; (3) Dhurandhar Prasad Singh v. Jai Prakash University & Ors. reported in (2001) 6 SCC 534 ; (4) Amit Kumar Shaaw & Anr. v. Farida Khatoon & Anr. reported in (2005) 11 SCC 403 and (5) Sharadamma v. Mohammed Pyrejan reported in (2016) 1 SCC 730 . 4. in Appeal (Civil) No. 4481/2001 decided on 24.07.2001; (3) Dhurandhar Prasad Singh v. Jai Prakash University & Ors. reported in (2001) 6 SCC 534 ; (4) Amit Kumar Shaaw & Anr. v. Farida Khatoon & Anr. reported in (2005) 11 SCC 403 and (5) Sharadamma v. Mohammed Pyrejan reported in (2016) 1 SCC 730 . 4. Learned counsel for the plaintiff has opposed the arguments advanced by learned counsel for the appellants and submitted that trial court rightly passed the decree in favour of plaintiff because defendants had not contested the suit before the trial court. Learned counsel for the plaintiff also submits that defendants had conspired with each other for frustrating the agreement executed in favour of the plaintiff. Learned counsel for the plaintiff also submitted that there is no ground to allow the application filed by the appellants for seeking leave to appeal. So, application as well as appeal be dismissed. 5. I have considered the arguments advanced by learned counsel for the appellants as well as plaintiff. 6. It is an admitted position that defendant No. 1 had executed an agreement dated 24.03.2007 in favour of the plaintiff. After that, he got registered the sale deed in favour of defendant No. 2. The plaintiff had filed a suit for specific performance against defendant No. 1. The said suit was ex-parte decreed on account of absence of defendant No. 1 in favour of plaintiff on 04.08.2011. After that, on the application of defendant No. 1 ex-parte decree was set aside in 2016 and defendant No. 2 was impleaded as a party on account of subsequent sale but defendants had not contested the case. So, trial court proceeded ex-parte against them and cancelled the sale deed dated 04.10.2007 executed in favour of defendant No. 2 by defendant No. 1 and directed the specific performance of agreement. So, in my considered opinion, there is no ground to grant leave to appeal to the appellants. So, application filed by the present appellants seeking leave to appeal being devoid of merit is liable to be dismissed which stands dismissed accordingly. 7. Consequently, the appeal filed by the appellants also stands dismissed. 8. All the pending applications also stand dismissed.