Allahabad High Court
Smt Sushila Devi And 6 Others vs Smt Baby Rani And 6 Others on 21 March, 2025
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. 2025:AHC:41671
Court No. - 9
Case :- MATTERS UNDER ARTICLE 227 No. - 14383 of 2024
Petitioner :- Smt Sushila Devi And 6 Others
Respondent :- Smt Baby Rani And 6 Others
Counsel for Petitioner :- Krishna Mohan Garg
Counsel for Respondent :- Devesh Kumar Verma,Madhulika Mishra,Rajeev Sawhney,Suresh Chandra Verma
with
Case :- MATTERS UNDER ARTICLE 227 No. - 13951 of 2024
Petitioner :- Dinesh Kumar And Another
Respondent :- Smt. Baby Rani And 8 Others
Counsel for Petitioner :- S.K. Mishra
Counsel for Respondent :- Devesh Kumar Verma,Krishna Mohan Garg,Madhulika Mishra,Rajeev Sawhney
Hon'ble Rohit Ranjan Agarwal,J.
1. These two writ petitions filed under Article 227 of Constitution of India arise out of judgment and order dated 31.07.2024 passed in Civil Misc. No. 214 of 2017 allowing the application filed by appellant, present respondent no. 1, under Section 5 and 14 of Limitation Act with a cost of Rs.10,000/-, as well as the order dated 04.09.2024 passed in Misc. Civil Case No. 97 of 2024 admitting the appeal and directing for its registration.
2. The case has a chequered history. One Late Arun Kumar had purchased one house measuring 96 square meter through a registered sale-deed dated 23.07.1997. He also purchased a part of the said house measuring 102 square meter through a registered sale-deed on 24.07.1997 in the name of his wife, present respondent no. 1, Baby Rani. Unfortunately, Arun Kumar died on 26.08.1998. As revealed from the documents, Baby Rani started living at Etah and during her stay at Etah, an Original Suit No. 523 of 2002 was filed by one Sushila Devi, mother-in-law of respondent no. 1. In the said suit, it was alleged that property purchased by her son Arun Kumar in his name and in the name of Baby Rani was a benami transaction. In para no. 5 of the plaint, it was alleged that oral partition had taken place between the parties. Further, in para no. 6, it was alleged that the defendant in the suit, Baby Rani had taken money from plaintiff and a family settlement has been arrived between them and plaintiff has become the owner in possession of the property. The relief claimed in the suit was for declaration, declaring her to be owner in possession of the property in dispute. The plaint dated 11.11.2002 is extracted hereasunder:-
"ब अदालत सिविल जज (सीनियर डिवीजन) फर्रुखाबाद।
मूल वाद संख्या 523 सन् 2002
श्रीमती सुशीला देवी आयु 78 साल पत्नी श्री चन्द्र प्रकाश निवासिनी सेठ गली हुकुम चन्द्र, फर्रुखाबाद परगना पहाड़ा। ....... वादिनी
प्रति
श्रीमती बेबी रानी पत्नी स्व० श्री अरूण कुमार वर्तमान निवासिनी द्वारा श्री राकेश कुमार मेनगंज जनपद एटा। ........प्रतिवादिनी
उपरोक्त वादिनी निम्नलिखित करती हैः-
1- यह कि वादिनी के पुत्र अरुण कुमार पुत्र श्री चन्द्र प्रकाश निवासी गली सेठ हुकुम चन्द्र फर्रुखाबाद ने अचल सम्पत्ति स्थित गली सेठ हुकुम चन्द्र फर्रुखाबाद जिसका पूर्ण विवरण इस वाद पत्र के अन्त में दिया गया है, स्वंय एवं अपनी पत्नी प्रतिवादिनी श्रीमती देवी रानी के बाम से बेनामी क्रय की थी।
2- यह कि दुर्भाग्यवश वादिनी के पुत्र अरुण कुमार की दिनांक 26.08.1998 को गंगानदी से डूब जाने से नृत्यु हो गयी।
3- यह कि अरूण कुमार की मृत्यु के उपरान्त वादिनी एवं प्रतिवादिनी उपरोक्त सम्पत्ति के मालिकान हुए तथा अरूण कुमार ने अपने जीवनकाल में तथा वादिनी ने अरूण कुमार की मृत्यु के पश्चात उपरोक्त सम्पत्ति में निर्माण कार्य किये है।
4- यह कि प्रतिवादिनी श्री अरुण कुमार की मृत्यु के पश्चात से स्थायी रूप से एटा में निवास कर रही है।
5- यह कि उपरोक्त सम्पत्ति के संयुक्त स्वामित्व में रहने से प्रायः वादिनी एवं प्रतिवादी के मध्य विवाद रहता था अतः उभयपक्ष ने उपरोक्त सम्पत्ति का आपसी मौखिक विभाजन कर लिया।
6- यह कि उपरोक्त सम्पत्ति की वर्तमान इमारत की प्रकृति को देखते हुए उसको दो भागों में विभाजन करना सम्भव नहीं था अतः प्रतिवादिनी ने अपने हिस्से के एवज में वादिनी से नकद धनराशि प्राप्त करना स्वीकार कर लिया। तथा अब वादिनी उपरोक्त सम्पत्ति की अनन्य स्वामी अध्यासिन है तथा प्रतिवादिनी को उपरोक्त सम्पत्ति पर वादिली के स्वामित्व एवं अध्यासन में हस्तक्षेप करने का कोई विधिक अधिकार नहीं है।
7- यह कि दिनांक 06.10.2002 को प्रतिवादी ने उपरोक्त सम्पत्ति पर वादिनी के स्वामित्व एवं अध्यासन में हस्तक्षेप करने तथा कब्जा करने की धमकी दी अतः वादिनी यह वाद संस्थित कर रही है।
8- यह कि वाद का कारण दिनांक 06.10.2002 को जबकि प्रतिवादी ने विवादित सम्पत्ति पर वादिनी के अनन्य स्वामित्व व अध्यासन में हस्तक्षेप करने की धमकी दी स्थान फर्रुखाबाद उत्पन्न हुआ एवं माननीय न्यायालय को यह वाद श्रवण करने की अधिकारिता प्राप्त है।
9- यह कि वाद का मूल्यांकन वास्ते अधिकारिता विवादित सम्पत्ति के बाजारू मूल्य16 लाख रूपये पर किया गया तथा निर्धारित न्याय शुल्क अनुतोष 'अ' अदा किया गया।
10- यह कि वादिनी प्रार्थना करती है:-
अ- यह कि घोषणात्मक आज्ञप्ति वादिनी के हक में प्रतिवादिनी के विरूद्ध पारित कर दी जावे कि वह (वादिनी) इस वाद पत्र के अन्त में वर्णित सम्पत्ति के अनन्य स्वामिनी अध्यासीन है।
ब- यह कि शाश्वत व्यादेश की डिग्री के द्वारा प्रतिवादिनी को विवादित सम्पत्ति पर वादिनी के अनन्य स्वामित्व व अध्यासन में हस्तक्षेप करने से निषिद्ध कर दिया जावे।
स- वाद व्यय एवं अनय अनुतोष जो वाद की परिस्थितियों में वादिनी के हित में हो प्रतिवादिनी से दिलाया जाये।
विवादित सम्पत्ति का विवरण
मकान स्थित गली सेठ कुकुम चन्द्र फर्रुखाबाद परगना पहाड़ा जिसकी सीमायें निम्नलिखित है:-
पूर्व - खण्डहल मोती बाबू अग्रवाल
पश्चिम - गली
उत्तर - मकान अवतार सिंह जिसके वर्तमान स्वामी जगदीश भट्टा वाले
दक्षिण - सड़क
मैं इस वाद पत्र की पैरा संख्या 1 लगायत लगायत10 का कथन अपनी निजी ज्ञान के आधारपर सच व सही होना सत्यापित करती हूँ। यह सत्यापन आज दिनांक 11.11.2002 को स्थान फतेहगढ़ किया गया।
ह0 अ0
वादिनी"
3. According to plaintiffs/petitioners, Baby Rani contested the suit and filed her written statement on 20.11.2003. In para no. 5 of written statement, she had denied the oral partition having taken place. Further, in para no. 6, the receiving of consideration from the plaintiff was also denied. The alleged written statement is extracted hereasunder:-
"ब अदालत सिविल जज (सी० डि०) फर्रुखाबाद।
मूल वाद संख्या 523 सन् 2002
श्रीमती सुशीला देवी
प्रति
श्रीमती बेबी रानी
प्रतिवादी की ओर से प्रतिवाद-पत्र
1- यह कि वाद पत्र की पैरा संख्या 1 स्वीकार है।
2- यह कि वाद पत्र की पैरा संख्या 2 स्वीकार है।
3- यह कि वाद पत्र की पैरा संख्या 3 स्वीकार है।
4- यह कि वाद पत्र की पैरा संख्या 4 स्वीकार है।
5- यह कि वाद पत्र की पैरा संख्या 5 अस्वीकार है।
6- यह कि वाद पत्र का पैरा संख्या 6 में जिस प्रकार अभिकथन है, अस्वीकार है।
7- यह कि वाद पत्र की पैरा संख्या 7 अस्वीकार है।
8- यह कि वाद पत्र की पैरा संख्या 8 अस्वीकार है।
9- यह कि वाद की पैरा संख्या 9 विधिक है, अतः उत्तर की आवश्यकता नहीं है।
10- यह कि वाद पत्र की पैरा संख्या 10 अस्वीकार है।
अतिरिक्त कथन
11- यह कि वादी को प्रतिवादी के विरूद्ध कोई कारण वाद उत्पन्न नहीं
12- यह कि पारिवारिक प्रबन्ध के अनुसार वादी ने प्रतिवादी को धनराशि अदा नहीं की है।
13- यह कि जब वादी प्रतिवादी को उसके हिस्से की बावत पारिवारिक प्रबन्ध के अनुसार धनराशि अदा नहीं कर देती तब तक पारिवारिक प्रबन्ध प्रभावी नहीं हो सकता है।
14- यह कि वाद निरस्त किये जाने योग्य है।
- ::सत्यापन::-
मैं इस प्रतिवाद पत्र के पैरा संख्या 1 लगायत 14 का कथन अपने निजी ज्ञान के अनुसार सच होना सत्यापित करती हूँ यह सत्यापन आज दिनांक 20.11.2003 स्थान फतेहगढ़ किया गया।
प्रतिवादी
ह०अ०
(बेबी रानी)"
4. Thereafter, the plaintiff was examined as PW-1 wherein she had stated that property purchased by her son was a benami transaction.
5. According to plaintiffs, defendant-Baby Rani, on 04.12.2003, appeared before the trial court and gave her oral testimony, in which she had accepted that she was paid the amount by her mother-in-law which was the consideration for the property in her name. In cross-examination, she had accepted that family settlement has taken place and she has been given the due consideration. The trial court, thereafter, framed the following issues:-
"1- क्या वादानुसार वादिनी विवादित सम्पति की मालिक काविज है,
2- अनुतोष ?"
6. On the very next day i.e. 05.12.2003, the trial court proceeded to decree the suit and declared the plaintiff, Sushila Devi, as owner in possession of the property in dispute.
7. An application under Order IX Rule 13 CPC was moved by respondent no. 1, Baby Rani on 17.08.2004 for recalling the ex-parte decree. The application was dismissed for want of prosecution on 18.07.2005. Thereafter, a restoration application was moved on 23.07.2005 which was also dismissed on 10.03.2006. Thereafter, another restoration application was filed on 30.03.2006 which was finally allowed on 26.08.2009. The application under Order IX Rule 13 was decided by trial court and finally dismissed on 12.12.2013. Against the dismissal of the said application, respondent preferred misc. appeal under Order XLIII Rule 1(d) CPC which was dismissed on 01.02.2017. The matter was carried to this Court through Matters under Article 227 No. 4937 of 2017 and the writ petition filed by Baby Rani was dismissed on 17.08.2017 and following order was passed:-
"The prayer made by the petitioner was for setting aside the decree dated 05.12.2003 terming it as an exparte decree which has been rejected vide order dated 12.12.2013 passed in the application under Order 9 Rule 13 of Code of Civil Procedure. A perusal of the decree dated 05.12.2003 passed in original suit no.523 of 2002 (Smt. Sushila Devi Vs. Smt. Baby Rani) indicates that the defendant/applicant therein had appeared as a witness and recorded her statement as D.W.-1. The contention of the applicant/defendant in the application under Order 9 Rule 13 of Code of Civil Procedure was that the plaintiff had succeeded in getting the decree in his favour by impersonation. No notice of the suit was ever served upon the defendant and, therefore, there was no question of her appearance as D.W.-1.
In essence, the contention of the applicant in the application for recall of the decree dated 5.12.2013 was that the decree was obtained by fraud committed upon the Court by the plaintiff. The question of fraud requires examination of evidence led by the parties. In the proceedings under Order 9 Rule 13 of Code of Civil Procedure, the limited question which could be examined by the court below is as to whether the summon was properly served or not. Once it is recorded in the judgement and order dated 5.12.2003 that the defendant had put in appearance and was examined as D.W.-1, it was not open for the court below to take any exception to the said finding in the proceeding under Order 9 Rule 13 of Code of Civil Procedure.
For all the above noted reason, this Court is of the view that the court below was perfectly justified in rejecting the application under Order 9 Rule 13 Code of Civil Procedure. It is, however, always be open for the petitioner to initiate appropriate proceeding as is permissible in law.
Dismissed as such."
8. After the dismissal of the writ petition, respondent, thereafter, preferred a Civil Misc. No. 214 of 2017 on 11.10.2017 before the court of District Judge, Farrukhabad at Fatehgarh. The said appeal was accompanied by application under Section 5 and 14 of Limitation Act. It was the case of respondent that due to wrong legal advise and persuasion of the matter before the other courts, the appeal could not be filed within the period of limitation, as such, the delay in filing the appeal be condoned. By order impugned dated 31.07.2024, the application under Section 5 and 14 of Limitation Act was allowed and on 04.09.2024, the court below passed an order admitting the appeal and registering it as a civil appeal. Hence, this writ petition.
9. Sri K.M. Garg and Sri S.K. Mishra, learned counsel appearing for petitioners submitted that the court below was not correct in allowing the application under Section 5 and 14 of Limitation Act as it has been filed after a great delay of about 536 days. He then contended that it is a consent decree of the year 2003 and no appeal lies under Section 96. According to him, the case is covered under second part of Rule 3 of Order 23 and, as such, the order passed by court below admitting and registering it as a civil appeal is against the provisions of Order 23 Rule 3.
10. Sri Garg then contended that once the oral settlement was arrived between the parties and defendant had appeared before the court and had made statement in her cross-examination admitting to the fact that amount was received by her, the case was decided on the basis of compromise, as such, the appeal would not lie.
11. According to him, respondent for 14 years had been litigating and had filed the application under Order IX Rule 13 CPC which has been rejected and order passed by trial court has been upheld by this Court in Matters under Article 227 of Constitution of India. Once the matter attained finality, the same cannot be reopened as the parties have already compromised.
12. He further submits that the plaintiff can maintain the suit under the unamended provision of Section 3(2) of the Prohibition of Benami Property Transaction Act, 1988 (hereinafter called as "the Act of 1988") as the plaintiff has succeeded to the share of her son Late Arun Kumar. He also contended that Section 14 of the Limitation Act, 1963 (hereinafter called as "the Act of 1963") provides for the exclusion of time of proceeding bona fide in court without jurisdiction.
13. In the instant case, respondent was not serious in contesting the application under Order IX Rule 13 CPC and it was dismissed twice for want of prosecution and delay was on the part of the respondent, as such, the benefit under Section 5 and 14 could not be given to her and she has not diligently pursued the matter before the court below.
14. On the question of registration of compromise decree, he contends that as the matter has not attained finality and decree, which is of the year 2003, is still under challenge, the registration could not have been made by plaintiff. He then contended that scope of Order XXIII Rule 3 and Order XII Rule 6 has to be dealt with in consonance with the fact that satisfaction was made by plaintiff to the defendant by paying the amount in respect of the share of defendant which was accepted by her in her cross-examination, thus, it amounts to a compromise and the suit was decided on merits.
15. Reliance has been placed upon judgment of Hon'ble Apex Court rendered in case of H.S. Goutham Vs. Rama Murthy And Another, (2021) 5 Supreme Court Cases 241, Pathapati Subba Reddy (Died) By L.Rs. And Others Vs. Special Deputy Collector (LA), 2024 SCC OnLine SC 513, Noharlal Verma Vs. District Cooperative Central Bank Limited, Jagdalpur, (2008) 14 Supreme Court Cases 445, Basawaraj and Another Vs. Special Land Acquisition Officer, (2013) 14 Supreme Court Cases 81, Ram Sarup Gupta (Dead) By Lrs Vs. Bishun Narain Inter College And Others (1987) 2 Supreme Court Cases 555, Des Raj And Others Vs. Bhagat Ram (Dead) By Lrs and Others (2007) 9 Supreme Court Cases 641, Bishundeo Narain and Another vs. Seogeni Rai and Others 1951 0 Supreme (SC) 34, J.Kumaradasan Nair & Anr. v. IRIC Sohan & Ors. AIR 2009 Supreme Court 1333, Suryachakra Power Corporation Limited vs. Electricity Department (2016) 16 Supreme Court Cases 152, M.P. Steel Corporation Vs. Commissioner of Central Excise (2015) 7 Supreme Court Cases 58, judgment of Rajasthan High Court rendered in case of Umesh Kumar and Another Vs. Lila Bai, 2024 RJ -RD: 42423,, judgment of Punjab & Haryana High Court rendered in case of Manohar Lal v. Surjan Singh, AIR 1983 Punjab And Haryana 393, judgment of Patna High Court rendered in case of Jayandra Prasad Sinha Vs. Nand Kishore Jha and Others, AIR 1985 Patna 310, judgment of Allahabad High Court rendered in case of Mohiuddin and Others Vs. Appellate Authority for Industrial And Financial Reconstruction and Ors 2015 (113) ALR 406.
16. Sri Devesh Kumar Verma, learned counsel appearing for respondent no. 1 submitted that there was no compromise entered between the parties and the property in respect of 102 square meter is solely registered in the name of Baby Rani. According to him, defendant-respondent never appeared before the trial court and did not file her written statement. Some impostor had filed written statement and had made a statement before the court on the basis of which the suit was decreed in favour of plaintiff.
17. According to him, no amount was disclosed in the plaint nor reliefs suggest that any declaration was made for declaring the sale-deed, which was in favour of Baby Rani, to be null and void.
18. He then contended that plaintiff cannot maintain suit in terms of Section 4 of the Act of 1988 as it clearly spells out that no claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held. The first paragraph of the plaint clearly mentions that property in dispute was a benami transaction and is held in the name of defendant. The plaintiff, mother-in-law, could not have maintained the suit against her. He then contended that Section 17(2)(vi) of the Act of Registration Act, 1908 mandates for the compulsory registration of a compromise decree.
19. On the merits, he contended that the writ Court had given leeway to the respondent to pursue any other remedy after the proceedings under Order IX Rule 13 failed. It was after the judgment of writ Court dated 17.08.2017 that appeal along with application under Section 5 and 14 of Limitation Act was moved on 11.10.2017 and there is only a delay of a month or so which the court had condoned.
20. He also contended that the respondent was a widow and was thrown out of her matrimonial house after the death of her husband and the suit filed by plaintiff was collusive and the respondent had no knowledge about the same. He also apprised the court about another proceedings which were initiated in the name of respondent in the year 2006 being Misc. Case No. 184 of 2006 in which the matter of court fees was decided against the applicant of that case and since the court fees was not paid, the said case was dismissed. Both Suit No. 523 of 2002 and this case was never filed by respondent and just to grab the property of respondent, the entire case has been set up against Baby Rani.
21. Reliance has been placed upon Judgment of Hon'ble Apex Court rendered in case of Banwari Lal Vs. Smt. Chando Devi and Another, 1992 0 Supreme (SC) 904, Kishun Ram Kishun Vs. Behari 2005 LawSuit(SC)1049, Pushpa Devi Bhagat (D) by LR v. Rajinder Singh & Ors. AIR 2006 Supreme Court 2628, Daljit Kaur and Another vs. Muktar Steels Pvt. Ltd. and others 2013 0 Supreme (SC) 1041, Bhoop Singh Vs. Ram Singh Major & Ors 1995 SCC (5) 709 and judgment of Allahabad High Court rendered in case of Sharda Prasad Tiwari vs. State of U.P. and others 2015 (127) RD 702, Mohiuddin and Others Vs. Appellate Authority for Industrial and Financial Reconstruction and Ors 2015 (113) ALR 406.
22. I have heard respective counsel for the parties and perused the material on record.
23. It is a case where a widow has been litigating for last 25 years seeking for a right before various courts. Her late husband had purchased a property in her name on 24.07.1997, measuring 102 square meter. After the death of her husband on 26.08.1998, she has been living out of her matrimonial house. The Suit No. 523 of 2002 was instituted by her mother-in-law, Sushila Devi, wherein it was averred that her son had purchased the house in which she was residing was a benami property in the name of her daughter-in-law, Baby Rani. The plaint further alleges that oral partition had taken place between the plaintiff and the defendant of the suit. Further, the plaint alleges that plaintiff had paid the defendant sum of money and defendant had agreed not to interfere in the ownership and possession of the plaintiff.
24. Relief claimed in the plaint was for declaring the plaintiff as owner of the property as well as prohibitory permanent injunction was sought against the defendant not to interfere in the peaceful possession of the plaintiff.
25. There is no disclosure in the plaint as to when the oral partition had taken place between the parties and what was the consideration paid to the defendant for the settlement which has arrived between them.
26. It is an admitted fact to both the parties that two sale-deeds were executed, one on 23.07.1997 in favour of Arun Kumar son of plaintiff and sale-deed dated 24.07.1997 for 102 square meter of land in the name of defendant, Baby Rani. The plaintiff was not the owner of the property and at the best she could claim succession to that part of the property which was purchased by her son, Arun Kumar, who died on 26.08.1998, measuring 96 square meter of land. The plaint does not disclose as to how she became the owner of that part of land which has been registered in the name of Baby Rani and she is the owner since 24.07.1997. Relief claimed in the plaint is also not for declaring the sale-deed as null and void which still holds in the name of defendant for 102 square meter of land.
27. Moreover, the alleged written statement filed on behalf of defendant categorically denies the execution of oral settlement and payment of consideration in respect of the property in dispute. The trial court had only framed the issue as to whether the plaintiff was the owner in possession of property in dispute or not. After the oral testimony as well as cross-examination of the defendant as alleged was held on 4.12.2003, the trial Court on the very next day i.e. 5.12.2003 had decreed the suit and held the plaintiff to be the owner in possession of the property.
28. The defendant-respondent had thereafter filed the application for recalling the ex-parte decree. The said application was dismissed on merits in the year 2013. Thereafter, the appeal was dismissed in the year 2017 and both the orders were confirmed by this Court on 17.8.2017, leaving it open to the respondent to pursue the remedy as permissible in law.
29. It is after the decision of this Court on 17.08.2017 that civil appeal along with application under Sections 5 and 14 of the Limitation Act was filed which was ultimately allowed by the appellate court and the appeal has been admitted and registered.
30. The question which arises for consideration is whether the Court can allow such type of arbitrariness and illegality to be perpetuated by the courts where the property registered in the name of a person has been usurped by her family members with the help of such judicial process.
31. From the reading of the plaint itself, it is clear that there was no disclosure as to any valid settlement entered between the parties and any consideration paid to the defendant. The Court is surprised as to how the court below proceeded to annul the registered sale-deed by passing a decree of declaration in favour of plaintiff declaring her to be owner in possession, once sale-deed dated 24.07.1997 is in existence in respect of 102 square meter of land and she also has a share in the property of her late husband which is 96 square meter of land.
32. There is no pleading to the effect that any consideration was paid for transferring the share of Baby Rani to the plaintiff. Only a vague averment is there that the consideration was paid which was denied specifically in the alleged written statement. In the cross-examination also, the amount paid was never disclosed.
33. Whether such a decree would come under the heading of a compromise decree or not has to be seen from Rule 3 of Order 23. Great emphasis has been laid by Sri K.M. Garg on the second part of Rule 3 of Order 23, wherein it is provided that where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith.
34. In the instant case, the defendant was never satisfied by the plaintiff during pendency of the suit. On the contrary, the entire premise of the suit rests on the fact that an oral settlement had already taken place between the parties and payment was made. The said averment has been specifically made in paras 5 and 6 of the plaint.
35. Sri Verma, on the contrary, has submitted that the case falls under Order XII Rule 6 CPC as it amounts to an admission during the court proceeding and judgment and decree passed therein is appealable.
36. From the reading of judgment of the trial court, it is apparently clear that it was the alleged admission on the part of the defendant before the trial Court that the suit was decreed.
37. The Apex Court in Bhoop Singh vs. Ram Singh Major, 1996 AIR 196 had distinguished between two situations falling under Order XII Rule 6 and Order XXIII Rule 3 CPC. Relevant para 19 of the judgment is extracted hereasunder:-
"19. Now, let us see whether on the strength of the decree passed in Suit No. 215 of 1973, the petitioner could sustain his case as put up in his written statement in the present suit, despite the decree not having been registered. According to us, it cannot for two reasons:
(1) The decree having purported to create right or title in the plaintiff for the first time that is not being a declaration of pre-existing right, did require registration. It may also be pointed out that the first suit cannot really be said to have been decreed on the basis of compromise, as the suit was decreed "in view of the written statement filed by the defendant admitting the claim of the plaintiff to be correct". Decreeing of suit in such a situation is covered by Order 12 Rule 6, and not by Order 23 Rule 3, which deals with compromise of suit, whereas the former is on the subject of judgment on admissions.
(2) A perusal of the impugned judgment shows that the first appellate court held the decree in question as 'collusive' as it was with a view to defeat the right of others who had bona fide claim over the property of Ganpat. Learned Judge of the High Court also took the same view."
38. Sri Garg has emphasized that in Pushpa Devi Bhagat (supra) the Apex Court had laid down that no appeal is maintainable in case a compromise is arrived between the parties and only procedure provided under Order XXIII Rule 3 would apply. In Daljit Kaur (supra), the Apex Court clarified in what terms the order would constitute a compromise decree and whether it would be appealable or not. The Hon'ble Apex Court further proceeded to hold that the decision rendered in Pushpa Devi Bhagat (supra) has to be confined to the facts exposited therein, for the fundamental factum was that the facet of consent was not contested. Relevant paragraph 15 of the judgment are extracted hereasunder:-
"15. The analysis made in the aforesaid decision in Pushpa Devi case [Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566] and the dictum laid down therein has to be appositely understood. In fact, the Court was adjudicating a controversy pertaining to assail of a consent decree where the parties concerned had filed an application before the Court that had passed the consent decree alleging that there was no valid compromise but chose not to pursue the same and filed an appeal. In that factual context the Court had ruled that in view of the express bar under Section 96(3) the appeal was not maintainable. Thus, we are inclined to think that the view expressed therein only conveys the principle that a consent decree is not appealable being barred under Section 96(3) CPC. Be it noted, what weighed with the court was that the application filed for setting aside the compromise was not pursued. Therefore, the said decision has to be confined to the facts exposited therein, for the fundamental factum was that the facet of consent was not contested."
39. Reliance placed upon by petitioner's counsel on the various judgments on the issue of Order XXIII Rule 3 are distinguishable in the present facts of the case and the same has been already discussed above. It is a case where the judgment was passed by trial court on the alleged admission of defendant during her oral testimony and cross-examination. This would not be a case where a compromise was arrived between the parties and will not fall under Order XXIII Rule 3 CPC but under Order XII Rule 6 and, thus, is an appealable order.
40. Coming to the issue of prohibition under the Act of 1998, petitioners themselves in their plaint had contended that the property in question was held as benami in the name of Baby Rani. The unamended provision of Section 3(2)(A) provided that nothing in sub-section shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed unless contrary is proved that the said property was purchased for the benefit of wife or unmarried daughter. The said Section 3(2)(A) was amended by the amending Act No. 43 of 2006.
41. In the instant case, the property is admittedly purchased on 24.07.1997, prior to insertion of the amended provision. The contention of Sri Garg holds to the extent that as the purchase was in the name of wife, the prohibition under Section 3 would be attracted. However, Section 4 of the Act clearly prohibits that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any person shall lie by or on behalf of person claiming to be the real owner of such property.
42. Admittedly, the property was purchased on 24.07.1997 in the name of Baby Rani measuring 102 square meter by late Arun Kumar. Section 4 clearly prohibits institution of a suit against a person in whose name the property is held or against any other person on behalf of a person claiming to be the real owner of such property.
43. In the instant case, plaintiff had cleverly not disclosed the factum that two sale-deeds dated 23.07.1997, measuring 96 square meter and sale-deed dated 24.07.1997, measuring 102 square meter in the name of Arun Kumar and Baby Rani.
44. As per Section 4, no suit could be instituted for any relief by Sushila Devi, mother-in-law of Baby Rani in respect of 102 square meter of land. The plaintiff had clearly merged the two sale-deeds in shape of disputed house without giving any details of them in the plaint nor any relief was claimed in respect of individual two shares purchased by Arun Kumar and Baby Rani. The suit in respect of share of Sushila Devi at the most could be maintainable in respect of 96 square meter of land and not beyond that.
45. Next point which was contended was to the registration of alleged compromise decree. The argument has been led by both the sides on Section 17(2)(vi) of the Act of 1908. From pleading of the parties, it is clear that no effort has been made till date for getting the compromise decree registered in terms of Section 17(2)(vi). The argument of Sri Garg to the extent that as the litigation is still continuing, the property could not be registered and once the appeal is finally decided, then only registration of decree would be done, this Court finds that this issue is not of much relevance at this stage as the litigation is still going on between the parties and the matter is pending before the appellate Court.
46. On the question of limitation, petitioners' counsel has heavily relied upon various judgments. I find that it is not a case where defendant-respondent be thrown out of the court on mere technicalities looking to the fact that she is the registered owner of the property in question and the trial court had hurriedly decreed the suit in favour of plaintiff without there being proper pleading in the plaint as to when the oral family settlement had taken place and what was the amount of consideration transferred to the defendant. The registered sale-deed still exists in the name of defendant and she has been litigating before different forums on the advise given by her counsels. Being an illiterate lady, she cannot be denied the benefit of excluding the time in pursuing her other remedies in not approaching the appellate court in time.
47. It is a very hard case where it appears that a collusive suit was filed and contested before the trial court and was decreed while the defendant still having the title over the property and running from pillar to post for getting justice.
48. The Court is not only to see mere technicalities and oust a jurisdiction on question of delay while there is sufficient explanation furnished by the defendant-respondent in pursuing her legal remedy before the other courts.
49. The court below while allowing the application under Section 5 and 14 of the Act had recorded a specific finding that it was after the decision of writ Court dated 17.08.2017 that a time barred civil appeal along with application under Section 5 and 14 was moved on 11.10.2017. The delay is not unexplained.
50. On the contrary, the conduct of plaintiff is under scrutiny and needs to be examined in depth by the appellate court to find out how the property registered in the name of defendant by such decree has landed over in favour of the plaintiff without there being any pleading or prayer made in the plaint.
51. Considering the facts and circumstances of the case, I find that no interference is required in the order dated 31.07.2024 passed by court below allowing Section 5 and 14 application as well as order dated 04.09.2024 admitting and registering the civil appeal.
52. Both the writ petitions stand dismissed.
53. Further, looking to the facts of the case, this Court finds that to do complete justice, the appellate court is hereby directed to proceed with the appeal and decide the same, preferably within a period of four months, from the date of production of certified copy of this order. The decision will be taken by the appellate court independently.
Order Date :- 21.3.2025
V.S.Singh
