Bombay High Court
Shri. Mallappa Shivling Nandani vs Shri. Bhushan Prakash Risbud on 11 March, 2016
Bench: R.D. Dhanuka
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vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.217 OF 2013
WITH
CIVIL APPLICATION NO.916 OF 2013
IN
SECOND APPEAL NO.217 OF 2013
Shri Mallappa Shivling Nandani )
Age 71 years, Occupation Agriculture )
Resident of Arag,Taluka Miraj, ig )
District Sangli ) ...Appellant
..Ori.Defendant
....Versus....
1. Shri Bhushan Prakash Risbud )
Age 32 years, Occupation Agriculture )
and business )
)
2. Shri Kapil Prakash Risbud, )
Age 27 years, Occupation Agriculture )
and Business )
)
Both resident of Mira Malgaon Road, )
Subhashnagar, Taluka Miraj, )
District Sangli ) ...Respondents
...Ori. Plaintiffs
Mr.Sandesh Patil for the Appellant.
Mr.Murlidhar L. Patil for the Respondent Nos.1 and 2.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 5TH FEBRUARY, 2016
PRONOUNCED ON : 11TH MARCH, 2016
JUDGMENT :-
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1. By this second appeal filed under section 100 of the Code
of Civil Procedure, 1908 the appellant (original defendant) has
impugned the oral judgment delivered on 29th November, 2012 by the
Principal District Judge, Sangli (hereinafter referred to as the "lower
appellate Court"), allowing the appeal filed by the respondents herein
(original plaintiffs) and thereby setting aside the judgment and decree
passed by the learned Civil Judge, Junior Division, Miraj on 25 th
January, 2006 dismissing the suit filed by the plaintiffs and has
decreed the said suit. The lower appellate Court has also granted
permanent injunction against the appellant (original defendant) from
disturbing the possession of the respondents herein over the suit
property. For the sake of convenience, the parties in this judgment
are described as they were described in the proceedings before the
learned trial Judge.
2. By an order dated 10th June, 2015, passed by this Court,
this Court has formulated two substantial questions of law in this
second appeal and directed that the matter might be disposed of
finally on the returnable date. The substantial questions of law
formulated by this Court are as under :-
(1) Whether the lower Appellate Court was
right in holding that the bar created for entertaining a
fresh suit under Section 47 read with Order XXI, Rule
101 of the Civil Procedure Code would operate in
passing a decree for possession in favour of the
plaintiffs after holding that the plaintiffs are not bound
by the decree passed in Regular Civil Suit No.4 of
1984 ? and
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(2) Whether the lower Appellate Court was
right in passing a decree for grant of permanent
injunction without there being any adjudication on the
question of the effect of the decree passed in Regular
Civil Suit No.4 of 1984 on the rights of the plaintiffs in
the suit in question ?
3. The land bearing gat no.375 admeasuring 1 Hector, 41
Ares situated at village Aagar, taluka Miraj, district Sangli is the suit
property. The said suit property was originally owned by Vyankatesh
Risbud. After his death, his legal heirs inherited the said land. On 30 th
November, 1983 Prakash Risbud, son of Vyankatesh Risbud
alienated the suit property by a sale deed which was registered to
Shankar Dharma Khot and had alleged to have handed over
possession of the suit property to him. It was alleged by the plaintiffs
that the said Shankar Dharma Khot had allotted the suit property to
his son Ishwara Shankar Khot in a family partition. It was however the
case of the defendant that the said Vyankatesh Risbud had entered
into an agreement for sale with the defendant in respect of the suit
property on 5th February, 1974. The defendant had issued a notice to
the legal heirs of the said Vyankatesh Risbud calling upon them to
comply with their part of obligation under the said agreement for sale
dated 5th February, 1974, which was entered into between the
defendant with the said Vyankatesh Risbud.
4. It was the case of the defendant that the said Vyankatesh
Risbud during his life time and the legal heirs of the said Vyankatesh
Risbud after his demise did not comply with their obligations under
the said agreement for sale dated 5 th February, 1974, the defendant
filed a suit being R.C.S. No.4 of 1984 against the father of the
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plaintiffs and others for seeking specific performance of the said
agreement for sale and for possession of the suit property. The said
suit being R.C.S. No.4 of 1984 for specific performance was decreed
on 30th March, 1991. Mr.Prakash Risbud, son of Vyankatesh Risbud
died some time in the year 2000.
5. It was the case of the plaintiffs that on 25th April, 2001, the
plaintiffs who are sons of Prakash Risbud purchased the suit property
from Ishwara Shankar Khot.
6. Mr.Prakash Risbud filed an appeal being R.C.A. No.369 of
1991 thereby impugning the decree dated 30th March, 1991. The said
appeal was dismissed for default on 16th April, 1999. Neither the said
Prakash Risbud nor his legal heirs, who are sons of the plaintiffs filed
any application for restoration of the said appeal.
7. Some time in the year 2000, the defendant filed a
Darkhast Application (Execution Application) for executing the decree
dated 30th March, 1991 before the Executing Court. It was the case of
the defendant that when he applied for recording his name in the
revenue record, he came to know that the name of Ishwara Shankar
Khot was recorded in the revenue record in respect of the suit
property, the defendant on 28th September, 2001 impleaded the said
Ishwara Shankar Khot as a party to the execution application. It was
not in dispute that subsequently on 8 th September, 2005 the plaintiffs
were also impleaded as parties in the said execution application.
8. In the meantime in the said execution application, pursuant
to an order passed by the Executing Court, the sale deed came to be
executed in favour of the defendant (decree holder) in respect of the
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suit property through the Court Officer appointed by the Executing
Court. The defendant has also filed a separate application in the said
proceedings for seeking possession of the suit property. The plaintiffs
were served with the notices of the said execution proceedings and
were aware of the decree passed in R.C.S. No.4 of 1984 and also the
execution application filed by the defendant in respect of the suit
property,
9. Some time in the year 2001, the plaintiffs, who were sons
of Prakash Risbud filed a suit in the Court of Civil Judge, Junior
Division, Miraj, Sangli (R.C.S. No.269 of 2001) against the defendant
inter-alia praying for perpetual injunction in respect of the suit
property simplicitor. The plaintiffs did not apply for a declaration of
their alleged title in the suit property.
10. It was the case of the plaintiffs in the said suit that the suit
property was originally owned by Vyankatesh Risbud and after his
death, his heirs inherited the said land. Mr.Prakash Risbud had
alienated the suit property on 30th November, 1983 by a registered
sale deed to Shankar Khot and had handed over possession of the
suit property to him. The suit property was thereafter allotted to the
sons of Shankar Khot i.e. Ishwara Shankar Khot in the family
partnership. It was the case of the plaintiffs that the plaintiffs had
purchased the suit property from Ishwara Shankar Khot by a
registered sale deed dated 25th April, 2001 and had become the
owner of the said land. The plaintiffs were alleged that the were in
possession of the suit property and were cultivating the suit land as
the owners thereof.
11. In the said plaint filed by the plaintiffs, the plaintiffs had
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disclosed about their knowledge of the suit filed by the defendant for
specific performance, parties thereto the said suit, decree passed by
the learned trial Judge, about filing of the appeal by the legal heirs of
Prakash Risbud and about dismissal of the said appeal by default on
16th September, 1991. It was however the case of the plaintiffs that
the said Shankar Dharma Khot, to whom the said Prakash Risbud
had sold the property on 30th November, 1983 was a necessary party
in that suit and thus the said decree passed in favour of the
defendant was thus not binding on the plaintiffs.
12. Before the learned trial Judge, the defendant filed the
written statement and denied all the contentions in the plaint. It was
averred by the defendant that the said Vyankatesh Risbud had
agreed to sell the suit property to the defendant by an agreement to
sale dated 5th February, 1974 for a consideration of Rs.2500/- in
favour of the defendant and had handed over possession of the suit
property to him. The defendant also alleged that he was in continuous
possession of the suit property without any obstruction. The
defendant also brought on record the details of the suit filed by him,
decree passed in that suit and also about the dismissal of the appeal
filed by the legal heirs of Prakash Risbud for default on 16 th April
1999. It was urged by the defendant that the said decree passed by
the learned trial Court in the suit filed by the defendant i.e. R.C.S.
No.4 of 1984 had attained finality and was binding on the plaintiffs
also. The defendant denied that the plaintiffs were in possession of
the suit property. The learned trial Judge framed six issues. The
issues framed by the learned trial Judge and the conclusions drawn
on each of the issues are extracted as under :-
Issues : Findings
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1. Do plaintiffs prove that they are owner of In the
the suit property by way of registered negative.
sale deed dated 25.04.2001 ?
2. Do they further prove that they are In the
having lawful possession over suit Negative.
Property ?
3. Do they further prove the obstruction In
of their lawful possession over suit Negative.
Property by defendant ?
4. Whether plaintiffs are entitled for In the
perpetual injunction as prayer for ?
ig Negative.
4-A. Whether defendant is entitled for In the
compensatory costs as prayed ? Affirmative.
5. What order and decree ? As per final
order.
13. On behalf of the plaintiffs, the plaintiff no.1, i.e. Bhushan
Prakash Risbud filed his affidavit of evidence and produced some of
the documents. The defendant filed his affidavit of evidence as one
of the witness and also examined one Shivprakash Gangadhar
Swami, a photographer. All the three witnesses before the learned
trial Court were cross-examined.
14. Learned trial Judge by an order and judgment dated 25th
January 2006 dismissed the said suit filed by the original plaintiffs
inter-alia praying for an injunction with compensatory costs of
Rs.3,000/-. Being aggrieved by the the said order and judgment
dated 25th January 2006, the original plaintiffs filed an appeal in the
Court of Principal District Judge at Sangli in R.C.S. No.84 of 2006.
The Principal District Judge, Sangli (the Lower Appellate Court)
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framed four points for determination and held that the plaintiffs had
proved their possession over the suit property and that the
defendant had obstructed possession of the plaintiffs over the suit
property and accordingly allowed the said appeal filed by the
original plaintiffs and has set aside the judgment and decree
passed by the learned trial Judge and has decreed the said suit filed
by the original plaintiffs. By the said order and judgment dated 29 th
November 2012, the Lower Appellate Court granted permanent
injunction against the defendant from disturbing the possession of
the plaintiffs over the suit property. This order and judgment of the
Lower Appellate Court has been impugned by the original defendant
in this second appeal filed under Section 100 of the Code of Civil
Procedure, 1908.
15. Mr.Sandesh Patil, learned counsel appearing for the
appellant (original defendant) invited my attention to the pleadings,
oral evidence and also to the findings and conclusions drawn by
the two Courts below. It is submitted that admittedly in the suit for
specific performance filed by the appellant (original defendant) i.e.
Regular Civil Suit No.4 of 1984, the learned trial Judge had also
passed a decree for possession which decree for possession had
attained finality in view of dismissal of the appeal filed by the
plaintiffs herein who were also the appellants in an appeal filed
against the said order which was passed in favour of the defendant
herein. He submits that since the entitlement of the defendant in the
suit property was proved in the said proceedings inter-alia praying
for specific performance of the agreement, the Lower Appellate
Court could not have granted any injunction in favour of the
plaintiffs in these proceedings against the true owner. He submits
that even otherwise the Lower Appellate Court could not have
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granted any injunction since there was no substantive relief claimed
by the plaintiffs in the suit.
16. It is submitted that though the plaintiffs herein were
impleaded as parties to the execution application filed by the
defendant herein in the execution proceedings and were fully
aware of the execution proceedings, the plaintiffs herein did not
raise any objection in execution of the said decree. He submits that
the plaintiffs had also filed an appeal against the said decree for
specific performance which was passed in favour of the defendant
herein and were fully aware of the said proceedings. He submits
that in the plaint filed in the suit for injunction by the plaintiffs herein,
there was an averment about the knowledge of the plaintiffs in
respect of the suit filed by the defendant for specific performance in
respect of the suit property, decree passed therein by the learned
trial Judge, the appeal filed by the plaintiffs in the said proceedings
as the legal heirs of Mr.Vyankatesh Risbud and about the
dismissal of the said appeal filed by them.
17. It is submitted that the plaintiffs could not have filed any
separate suit for injunction in respect of the suit property. The
plaintiffs ought to have agitated all these issues which were raised
in the separate suit in the execution proceedings under Order XXI
Rules 98 and 101 of the Code of Civil Procedure, 1908. He submits
that the proceedings under Order XXI Rule 98 are tried as suit and
all these contentions raised by the plaintiffs in the separate suit
ought to have and could have been raised only in the execution
proceedings filed by the defendant herein.
18. Reliance is placed on Section 47 of the Code of Civil
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Procedure, 1908 also in support of the submission that there is a
bar against filing of a separate suit. In support of this submission,
he placed reliance on the judgment of the Supreme Court in the
case of Shreenath & Anr. Vs.Rajesh & Ors., AIR 1998 SC 1827
and in particular paragraph 5 thereof. Reliance is also placed on the
judgment of the Supreme Court in the case of Vithalbai Pvt. Ltd.
Vs. Union of India, (2005) 4 SCC 315 and in particular paragraph
20 thereof.
19. Learned counsel appearing for the defendant invited my
attention to the examination-in-chief of the plaintiff no.1 and also his
cross-examination. He submits that in the cross-examination, the
plaintiff no.1 had categorically admitted that he had knowledge about
filing of the suit but he did not make any further enquiry in the
matter.
20. It is submitted submits that no injunction could have been
granted by the Lower Appellate Court against the defendant herein
being the true owner of the suit property and that also in absence
of any substantive prayer in the suit. In support of this submission,
he placed reliance on the judgment of the Supreme Court in the
case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By LRs &
Ors.,(2008) 4 SCC 594 and in particular paragraph 21 thereof.
21. It is submitted that pursuant to the decree passed by the
learned trial Judge in favour of the defendant herein for specific
performance of the agreement for sale in respect of the suit
property, sale deed in respect of the suit property has already been
executed in favour of the defendant through an Officer of the Court.
He submits that admittedly an application for possession of the suit
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property filed by the defendant is pending before the Executing
Court. He submits that in view of the injunction granted by the Lower
Appellate Court against the defendant herein, the defendant would
not be able to execute the decree for possession though the said
decree has attained finality.
22. It is submitted that in the suit (R.C.S. No.4 of 1984) filed
by the defendant herein for specific performance of the suit
agreement, the defendant to the suit had filed a written statement.
In the said written statement, it was not disclosed by the defendant
to the said suit about the sale deed of the suit property by the said
defendant in favour of Mr.Shankar Dharma Khot. He submits that
the appeal was filed by Mr.Prakash Risbud himself challenging the
decree passed in the suit filed by the defendant herein which appeal
was pending till 1991 and was thereafter, dismissed for default.
He submits that the defendant herein had filed a Darkhast
Application in the year 2000. The plaintiffs who are sons of
Mr.Prakash Risbud who were fully aware about filing of the suit and
about dismissal of the appeal filed by them alleged to have been
entered into an agreement of sale on 25 th April 2001 with
Mr.Ishwara Shankar Khot. The plaintiffs were impleaded as party to
the execution application on 28th September 2001. The plaintiffs
filed a false and frivolous suit for injunction on the same day
against the defendant in respect of the suit property.
23. It is submitted that the parties who are not telling the
truth before the Court of law are not entitled to seek any interim or
final relief in the suit filed by them. In support of this submission,
learned counsel for the appellant placed reliance on the judgment of
the Supreme Court in the case of Dalip Singh Vs. State of Uttar
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Pradesh and Ors.,(2010) 2 SCC 114.
24. It is submitted that since the plaintiffs had not come to
this Court with clean hands and has suppressed various true and
correct facts. The plaintiffs had deliberately purchased the suit
property though the suit for specific performance filed by the
defendant was decreed and the appeal filed by Mr.Prakash Risbud,
father of the plaintiffs came to be dismissed in the year 1999 and
were aware of the execution application filed in the year 2000, their
such conduct had made them disentitled for seeking any interim or
final relief under Section 41(i) of the Specific Relief Act, 1963.
25. Learned counsel for the defendant then submits that since
there was a cloud on title of the plaintiffs in view of the decree for
specific performance already having been granted in favour of the
defendant which decree had attained finality, no injunction could be
granted by the Lower Appellate Court in favour of the plaintiffs
herein. In support of this submission, learned counsel for the
appellant placed reliance on the judgment of the Supreme Court in
the case of Krishnadevo Malchand Kamathia & Ors. Vs.
Bombay Environmental Action Group & Ors.,AIR 2011 SC
1140 and in particular paragraph 17 thereof.
26. It is submitted that the Lower Appellate Court could not
have declared the decree passed by the learned trial Judge in
favour of the defendant herein for specific performance as nullity or
not binding on the plaintiffs herein or could not have decided about
validity of the execution proceedings in which the plaintiffs had not
participated though were made parties and were served with
notices. He submits that the Lower Appellate Court has virtually
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granted injunction against the defendant from executing the decree
for possession though the said decree for possession granted by the
learned trial Judge in favour of the defendant had attained finality.
He submits that the Lower Appellate Court had acted without
jurisdiction in declaring the decree for specific performance as
nullity or not binding on the plaintiffs herein. He submits that even if
the said judgment and decree passed by the learned trial Judge for
specific performance in favour of the defendant herein was void or
was not binding upon the plaintiffs, such declaration could be made
only by a Competent Court and not in the appeal filed by the
plaintiffs challenging the order passed by the learned trial Judge
refusing to grant injunction.
27. Mr.Murlidhar L. Patil, learned counsel for the respondents
(original plaintiffs), on the other hand, invited my attention to the
pleadings, oral evidence and also to various paragraphs of the orders
passed by the learned trial Judge and the Lower Appellate Court. It is
submitted by the learned counsel that the agreement dated 5th
February 1974 between the defendant herein and Mr.Vyankatesh
Risbud was admittedly not a registered document. He submits that
under the said unregistered agreement dated 5th February 1974, the
defendant was not given possession of the suit property by
Mr.Prakash Vyankatesh Risbud. He submits that on the other hand,
Mr.Prakash Risbud who was the son of the said Mr.Vyankatesh
Risbud had executed an agreement for sale in favour of Mr.Shankar
Dharma Khot which was duly registered on 30th November 1983.
28. It is submitted that though the defendant herein had filed
a suit inter-alia praying for specific performance (R.C.S. No.4 of
1984), Mr.Prakash Risbud was not the owner on the date of filing
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the said R.C.S. No.4 of 1984. He submits that on the date of filing
the said suit, Mr.Shankar Dharma Khot was the owner of the said
property. There was a partition in the family of Mr.Shankar Dharma
Khot and in the partition, the suit property was allotted to
Mr.Ishwara Shankar Khot who was the son of Mr.Shankar Dharma
Khot. He submits that on 25th April 2001, the said Mr.Ishwara Khot
had sold the suit property to the plaintiffs namely Mr.Bhusan
Prakash Risbud and Mr. Kapil Prakash Risbud for consideration.
The said agreement for sale was also duly registered.
29. It is submitted that upon execution of the said agreement
for sale on 25th April 2001 by Mr.Ishwara Shankar Khot in favour of
the plaintiffs, the plaintiffs derived the title in respect of the suit
property in their individual capacity and were placed in possession
by the said Mr.Ishwara Khot. He submits that merely because the
plaintiffs are the grandsons of Mr.Vyankatesh Risbud, on that
ground the decree for injunction granted in favour of the plaintiffs
cannot be set aside. Their status is totally changed. They are
claiming to be in possession as the owners of the suit property and
not on behalf of Mr.Vyankatesh Risbud or Mr.Prakash V. Risbud. In
support of this submission, learned counsel placed reliance on the
judgment of the Supreme Court in the case of Vishwanthat
Bapurao Sabale Vs.Shalinibai Nagappa Sabale, (2009) 12 SCC
101 and more particularly paragraph 18 thereof.
30. It is submitted by the learned counsel for the plaintiffs that
on the date of the plaintiffs filing the said suit for injunction, the
plaintiffs were admittedly not made parties to the execution
application. He submits that in any event, the execution application
filed by the defendant and the suit filed by the plaintiffs were before
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the same Court and could have been tried if any application would
have been made by the defendant for clubbing both the
proceedings.
31. It is submitted by the learned counsel for the plaintiffs that
though in the suit filed by the plaintiffs, the defendant herein had
filed a written statement, the defendant did not raise any objection
in the said written statement that the said suit filed by the plaintiffs
was barred and the issues raised in the said suit could be raised
only before the Executing Court under Order XXI Rule 98 read with
Rule 101 and Section 47 of the Code of Civil Procedure, 1908.
The defendant herein did not raise any issue of jurisdiction in the
suit filed by the plaintiffs. It is submitted that in any event, since the
trial Court has erroneously dismissed the suit, the Lower Appellate
Court rightly allowed the appeal filed by the plaintiffs.
32. It is submitted by the learned counsel for the plaintiffs that
though the defendant herein did not raise any issue of maintainability
of an independent suit under Order XXI Rule 98 read with Rule 101
and Section 47 of the Code of Civil Procedure, 1908, the Lower
Appellate Court on its own raised that issue and decided the same.
He submits that in any event, the Lower Appellate Court rightly
took a view that the decree passed by the learned trial Judge in the
suit for specific performance filed by the defendant herein was nullity
and was not binding on the plaintiffs herein.
33. Learned counsel for the plaintiffs placed reliance on the
judgment of the Supreme Court in the case of Vithalbhai (P) Ltd.
Vs.Union Bank of India, (2005) 4 SCC 315 and in particular
paragraphs 15, 20 and 22 thereof and also the judgment of the full
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bench of this Court in the case of Bhartiben Shah Vs. Smt.Gracy
Thomas & Ors., (2013) 2 Mh.L.J. 25 and in particular paragraph
88 thereof. It is submitted by the learned counsel that even if there
was any breach of non-compliance of any provisions of the Code of
Civil Procedure, 1908 or the Indian Evidence Act, 1872, the same
will not be a ground for interfering with the impugned order passed
by the Lower Appellate Court. He submits that in any event, the
plaintiffs had followed the requisite procedure and the suit filed by the
plaintiffs for injunction was maintainable in law. In his alternate
submission, he submits that the decree in favour of the defendant
herein itself was not executable.
34. Learned counsel appearing for the plaintiffs placed
reliance on Section 54 of the Transfer of Property Act, 1882 and
would submit that mere agreement to sale does not create any
interest in the property. He submits that the agreement to sale relied
upon by the defendant was admittedly not registered. He submits
that since there was no interest created in the suit property in
favour of the defendant, no decree could have been passed by the
learned trial Judge in favour of the defendant in his suit for specific
performance and possession at all. In support of this submission,
learned counsel for the plaintiffs placed reliance on the judgment of
the Calcutta High Court in the case of Hiralal Agarwala Vs.
Bhagirathi Gore & Ors., AIR 1975 Calcutta 445.
35. It is submitted that the agreement to sale between
Mr.Vyankatesh Risbud and Mr.Shankar Dharma Khot was a
registered document. The said Mr.Shankar Dharma Khot was a
bona-fide purchaser of the suit property. He submits that since the
said agreement was a registered agreement, in view of Section 3 of
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the Transfer of Property Act, 1882, there was a constructive notice
to all the members of the public about sale of such property and thus
in view of Section 50 of the Registration Act, 1908 read with
Section 3 of the Transfer of Property Act, 1882, the registered
document will be effective against all the unregistered documents.
36. In so far as the issue raised by the original defendant that
he was in possession of the suit property is concerned, it is
submitted by the learned counsel for the respondents that the
defendant was never given any possession of the suit property by
the said Mr.Vyankatesh Risbud and on the contrary, the defendant
has applied for possession of the suit property before the Executing
Court. He submits that the Lower Appellate Court has rightly
rendered a finding that the decree for specific performance obtained
by the defendant herein cannot be executed. He submits that the
suit filed by the plaintiffs herein for injunction simplicitor was
maintainable in view of the fact that the plaintiffs were not
impleaded as party to the execution application on the date of the
plaintiffs filing the suit.
37. Mr.Sandesh Patil, learned counsel for the appellant
(original defendant) in rejoinder distinguishes the judgment of the
Supreme Court in the case of Hansa V. Gandhi Vs. Deep Shankar
Roy & Ors., (2013) 12 SCC 776 on the ground that the Supreme
Court was considering the Letter of Intent and not an agreement for
sale which was the document entered into between the defendant
herein and the original owner.
38. In so far as the judgment of the Supreme Court in the
case of Vithalbhai (P) Ltd. (supra) relied upon by the plaintiffs is
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concerned, it is submitted that in the said judgment, Supreme Court
had considered the case of premature suit in respect of which no
objection was raised by the defendant when the same was filed and
in that context, it was held that it amounted to waiver. He submits
that in this case, the suit filed by the plaintiffs for injunction
simplicitor itself was not maintainable in view of the provisions of
Order XXI Rule 98 read with Rule 101 of the Code of Civil
Procedure, 1908. The said judgment of the Supreme Court in the
case of Vithalbhai (P) Ltd. (supra) is distinguishable in the facts of
this case. Learned counsel also placed heavy reliance on
paragraph 20 of the said judgment of the Supreme Court in the case
of Vithalbhai (P) Ltd. (supra) in which, it is held that no amount of
waiver can confer jurisdiction on which the Court does not have
jurisdiction. He submits that even if the appellant did not raise any
objection before the learned trial Judge in the suit filed by the
plaintiffs for injunction about the issue of jurisdiction on the ground
that the provisions of Order XXI Rule 98 read with Rule 101 of the
Code of Civil Procedure, 1908 that would not confer jurisdiction on
the trial Court which did not have jurisdiction to hear a separate suit
in respect of the issue which was required to be dealt with only by
the Executing Court.
39. Learned counsel for the appellant also distinguishes the
judgment of the Supreme Court in the case of Vishwanath
Bapurao Sabale (supra) on the ground that the facts before the
Supreme Court in the said judgment were totally different than the
facts in this case. He submits that paragraph 49 of the said
judgment has to be read with paragraph 31.
REASONS & CONCLUSIONS :
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40. A perusal of the order passed by the learned trial Judge
indicates that in the suit for injunction filed by the plaintiffs, the
learned trial Judge also considered the issue whether the plaintiffs
were the owners of the suit property under a registered sale-deed
dated 25th April, 2001 and whether they were having any lawful
possession over the suit property. The learned trial Judge also
decided whether the plaintiffs had proved their obstruction to the
lawful possession of the defendant over the suit property.
41. Insofar as the issue whether the plaintiffs were having
lawful possession over the suit property is concerned, the learned
trial Judge answered the said issue in the negative. The learned trial
Judge also considered the issue as to whether the plaintiffs had
proved the obstruction to the lawful possession over the suit property
by the defendant and answered the same in the negative.
42. In the cross-examination of the plaintiff no.1 before the
learned trial Judge, he admitted that his grant-father Vyankatesh
Risbud had executed the agreement to sell in respect of the suit
property in favour of the defendant and after the death of Vyankatesh
Risbud, the defendant had issued notices to the legal heirs of
Vyankatesh Risbud and had asked for specific performance of the
agreement. He also admitted that in the year 1992-1993, his father
had told him about the suit filed against him by the defendant herein
concerning the suit property. He had not asked his predecessor
Ishwari Shankar Khot regarding lis-pendence of the proceedings
regarding the suit land. The learned trial Judge accordingly held that
all those admissions by the plaintiff no.1 in his cross-examination
were against the plaintiffs and it clearly appeared that the plaintiffs
had deliberately purchased the suit land of defective title.
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43. The learned trial Judge also considered the fact that in the
written statement filed by Prakash Risbud in the said suit for specific
performance filed by the defendant herein he had not disclosed the
alleged alienation of the suit property by him to Shankar Khot prior to
the suit. The said Prakash Risbud and other legal heirs had filed an
appeal against the decree for specific performance passed by the
learned trial Judge in the said suit being R.C.S. No.4 of 1984 bearing
R.C.A. No.369 of 1991, which was dismissed for default on 16 th April,
1991. Even in the said appeal proceedings, the said Prakash Risbud
and others did not disclose about the alleged alienation of the suit
property by Prakash Risbud in favour of Shankar Khot. The learned
trial Judge also considered that at the time of execution proceedings,
the name of Ishwara Khot was recorded as the owner of the land and
therefore, he was joined as the judgment debtor in the execution
proceedings. The execution proceedings were filed on 1st March,
2001 against Prakash Risbud and Ishwara Khot. The learned trial
Judge noticed that the said Ishwara Khot could not have alienated the
suit property in favour of the plaintiffs on 25th April, 2001 and
therefore, all those alienations were during the pendency of the suit
filed by the defendant herein i.e. R.C.S. No. 4 of 1984 was not valid.
44. The learned trial Judge held that after the death of
Vyankatesh Risbud, his sons Prakash and his other legal heirs were
bound to perform their part of obligation as per the agreement.
Instead of executing the sale-deed in favour of the defendant,
Prakash Risbud alienated the land in favour of Shankar Khot and
thereafter contested the suit by filing the written statement. It is held
that first alienation in favour of Shankar Khot was thus against the
provisions of law. Though the decree was passed against Prakash
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Risbud to alienate the suit property in favour of the defendant, he
illegally alienated the suit property in favour of Shankar Khot. It is
held that all subsequent transfers were accordingly defective and
thus the title of the plaintiffs was not lawful. It is held by the learned
trial Judge that since the suit was decreed in favour of the defendant
herein, all alienations made in respect of the suit property in favour of
the plaintiffs or in favour of Shankar Khot would not get any valid and
legal title in respect of the suit property and thus the transaction of
sale deed in favour of Shankar Khot was void-ab-initio and
accordingly all subsequent transfers also became void.
45.
Insofar as the possession of the plaintiffs is concerned, it is
held by the learned trial Judge that the plaintiffs had failed to prove
their lawful possession in respect of the suit property and at the same
time the defendant also had failed to prove his possession. The
learned trial Judge accordingly dismissed the said suit filed by the
plaintiffs herein inter-alia praying for perpetual injunction against the
defendant herein.
46. Insofar as the order and judgment of the lower appellate
Court is concerned, a perusal of the said judgment clearly indicates
that the lower appellate Court has reversed the findings recorded by
the learned trial Judge and has held that the plaintiffs had proved
their possession over the suit property and had also proved that the
defendant had obstructed the possession of the plaintiffs over the suit
property and accordingly granted injunction. The lower appellate
Court held that since it was the case of the defendant in the written
statement that he was in possession of the suit property, which was
clear that the defendant had obstructed possession of the plaintiffs
over the suit property.
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47. The lower appellate Court held that though the sale deed
of the suit property was executed by Ishwara Khot in favour of the
plaintiffs on 25th April, 2001, the said transaction could not be hit by
lis-pendence. A perusal of the judgment delivered by the lower
appellate Court indicates that the learned Judge held that in the
present matter, Shankar Khot was not made a party to the suit for
specific performance of the contract and he had thus no opportunity
to establish that the transfer was for value and without notice and
hence the said decree for specific performance could not be executed
against the said transferee. It is held that the said decree could not be
passed against the son of Ishwara Khot who had got the suit property
from his father by way of partition. The lower appellate Court held that
the plaintiffs who had purchased the suit property from Ishwara Khot
was thus not bound by the said decree and the said decree could not
be executed against them.
48. The lower appellate Court also accepted the submission of
the plaintiffs that the registered sale deed was a notice to the public
at large and thus the defendant who had filed the said suit for specific
performance had notice of the said sale deed of the suit property.
The lower appellate Court held that since Ishwara Khot and the
plaintiffs were not the parties to the suit for specific performance, they
could not be added as the parties in the execution application and the
said decree for specific performance was not binding on the plaintiffs.
49. On the submission as to whether the plaintiffs were
claiming any rights in the said property as legal heirs of their father
Prakash Risbud or had independently acquired the title in respect of
the suit property is concerned, the lower appellate Court accepted the
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submission of the plaintiffs that the suit property was acquired not as
legal heirs of Prakash Risbud but was acquired by way of the
registered sale deed and in their individual capacity. It is held that
since the suit property was already sold by Shankar Bodhidharma
Khot even before filing of the suit for specific performance by the
defendant and since he was not impleaded as a party to the suit for
specific performance, the subsequent purchaser was not bound by
the said decree. The lower appellate Court held that the said decree
for specific performance could not be executed against the plaintiffs
and hence the possession of the plaintiffs over the suit property could
not be taken away on the basis of such decree and thus based on
such decree in favour of the defendant, the possession of the plaintiff
could not be obstructed by the defendant.
50. In paragraph 45 of the impugned order passed by the
lower appellate Court, it is held that though the defendant had not
raised an issue that when the execution proceedings were pending
before the Executing Court, the plaintiffs could not have filed separate
suit, the lower appellate Court decided the said issue on its own and
declared that decree in suit for specific performance filed by the
defendant was not executable against the plaintiffs.
51. It is not in dispute that the defendants herein had filed a
suit for specific performance in respect of the suit property in which
the learned trial judge had passed a decree for specific performance
and also for possession. The appeal filed by the plaintiffs herein
arising out of the said order and decree passed in the said R.C.S.
No.4 of 1984 came to be dismissed for default. No application had
been made by the plaintiffs for restoration of the said appeal. It is
also not in dispute that in the execution application filed by the
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defendant herein for execution of the decree passed in the said
R.C.S. No.4 of 1984, the sale deed is already executed in favour of
the defendant through an officer of the court. The said sale deed
executed in favour of the defendant has not been set aside by any
competent court of law.
52. There is also no dispute that the defendant had also
applied for execution of the decree for possession before the same
executing court which application for possession is still pending. A
perusal of the plaint filed by the plaintiffs insofar as suit bearing
R.C.S. No.269 of 2001 indicates that the plaintiffs had inter-alia
prayed for perpetual injunction in respect of the suit property
simplicitor against the defendant and had not applied for declaration
of title in respect of the suit property. The record produced by the
parties before the learned trial judge as well as by this court clearly
indicates that the plaintiffs were fully aware of the suit filed by the
defendant for specific performance of the agreement in respect of the
suit property and a decree was passed by the trial court in the said
suit which decree had attained finality in view of the dismissal of the
appeal filed by some of the plaintiffs herein. The record also clearly
indicates that the plaintiff no.1 was also impleaded as the party to the
execution application and was served notices by the executing court.
The plaintiffs had themselves made such averments in the suit filed
by the plaintiffs inter-alia praying for a perpetual injunction. The
plaintiffs however did not appear before the executing court inspite of
the service of the notices and inspite of their impleadment in the
execution proceedings.
53. The question that arises for consideration of this court is
whether the plaintiffs herein could have filed a separate suit inter-alia
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praying for perpetual injunction against the defendant whose rights of
ownership were already adjudicated in the suit bearing R.C.S. No. 4
of 1984 or the plaintiffs ought to have applied for adjudication of all
their claims in respect of the suit property only in the said execution
proceedings filed by the defendant in the said suit bearing R.C.S.
No.4 of 1984. There is no dispute that the defendant did not raise
any issue of jurisdiction before the trial court insofar as suit bearing
R.C.S. No.269 of 2001 on the ground that the execution application in
respect of the suit bearing R.C.S. No.4 of 1984 in respect of the same
property was already pending and the plaintiff no.1 was already
impleaded as parties to the execution proceedings.
ig There is no
dispute that the lower appellate court however decided this issue and
held that the said decree passed by the trial judge in R.C.S. No.4 of
1984 was not binding on the plaintiffs herein and also Mr.Shankar
Dharma Khot or Ishwara Shankar Khot. It is not the case of the
plaintiffs that the lower appellate court could have decided the issue
of maintainability of the suit for the first time in the appeal filed by the
plaintiffs though the same was decided in their favour.
54. Learned counsel for both the parties have made their rival
submissions on the issue of maintainability of a separate suit filed by
the plaintiffs inter alia praying for perpetual injunction inspite of their
being an application for execution of decree in respect of the same
property was pending before the executing court in view of Order 21
Rules 97, 98 and 101 of the Code of Civil Procedure, 1908.
55. The question that arises for consideration of this court is
whether the lower appellate court while hearing an appeal filed by the
plaintiffs in which the plaintiffs had challenged the order and decree
passed by the learned trial judge dismissing the suit for perpetual
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injunction, whether could decide about the validity of the decree
passed by the learned trial judge in suit bearing R.C.S. No.4 of 1984
which had attained finality.
56. The Supreme Court in case of Sameer Singh and
another vs. Abdul Rab and others, (2015) 1 SCC 379 has held that
the order 21 Rule 97 deals with the resistance or obstruction to
possession by the holder of a decree for possession or the
purchaser of any such property sold in execution of a decree. It is
held that the said provision empowers such a person to file an
application to the Court complaining of such resistance or
obstruction and requires the Court under sub-rule (2) to adjudicate
upon the application in accordance with the provisions provided
therein. Rule 99 deals with dispossession by decree-holder or
purchaser of any property sold in execution of decree. It is held that
the said provisions empower such a person to file an application to
the court complaining of such resistance or obstruction and requires
the Court under sub-rule (2) to adjudicate upon the application in
accordance with the provisions provided therein. It is held that
under rule 101 of order 21, all questions including questions
relating to right, title or interest in the property arising between the
parties to a proceeding on an application under Rule 97 or Rule 99 or
their representatives, and relevant to the adjudication of the
application shall be determined by the Court dealing with an
application and not by a separate suit and for the said purpose, the
executing court has been conferred the jurisdiction to decide the
same.
57. The Supreme Court in the said judgment has adverted to
the another judgment of Supreme Court in case of Brahmdeo
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Chaudhary v. Rishikesh Prasad Jaiswal and another, AIR 1997
SC 856 in which it was held that a stranger to the decree who claims
an independent right, title and interest in the decreetal property can
offer his resistance before getting actually dispossessed and he can
equally agitate his grievance and claim for adjudication of his
independent right, title and interest in the decreetal property even
after loosing possession as per Order XXI, Rule 99. It is held that the
court has the authority to adjudicate all the questions pertaining to
right, title or interest in the property arising between the parties
which includes the claim of a stranger who apprehends
dispossession or has ig already been dispossessed from the
immovable property. It is held that the self-contained Code, as has
been emphasized by this Court, enjoins the executing court to
adjudicate the lis and the purpose is to avoid multiplicity of
proceedings. It is held that when the application is adjudicated upon
Rule 98 or Rule 100 of Order 21, the said order shall have the same
force as if it were a decree. In my view, the principles of law laid
down by the Supreme Court in case of Sameer Singh (supra) and
Brahmdeo Chaudhary (supra) squarely applies to the facts of this
case.
58. The plaintiffs in this case claims to be in possession by
virtue of a sale deed dated 25th April, 2001 executed in their favour by
Ishwara Shankar Khot. It was the case of the plaintiffs that they had
not claimed title as legal heirs of Mr.Prakash Risbud but were
claiming to be in possession of the suit property by virtue of such sale
deed. In my view even if the plaintiffs were claiming to be a third
party and had claimed interest in the suit property which was already
a subject matter of the suit bearing R.C.S. No. 4 of 1984 in which the
decree for specific performance and possession had attained finality,
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the plaintiffs even if considered as third party claiming rights or
possession under a sale deed dated 25th April, 2001 which was
admittedly after passing of the decree passed by the learned trial
judge in suit bearing R.C.S. No. 4 of 1984, all their claims including
for injunction in respect of the suit property could be determined only
by executing court under Order 21, Rules 97 to 101 of the Code of
Civil Procedure, 1908. In my view, the plaintiffs could not have filed a
separate suit for perpetual injunction in respect of the same property.
The said suit itself was not maintainable being contrary to Order 21,
Rule 98 and Rule 101 of the Code of Civil Procedure, 1908.
59.
The Supreme Court in case of Shreenath & Another vs.
Rajesh & others, AIR 1998 SC 1827 has dealt with at length the
provisions of Order 21 Rule 97, Rule 99, Rule 101 read with Rule 35
of Order 21 and has held that all disputes between decree holder and
any person which includes all persons resisting the delivery of
possession, claiming right in the property even those not bound by
the decree, including tenants or other persons claiming right in their
own including a stranger has to be adjudicated by the executing
court. A party is not thrown out to relegate itself to the long drawn out
arduous procedure of a fresh suit. It is held that this is to salvage the
possible hardship both to the decree-holder and other person
claiming title on their own right to get it adjudicated in the very
execution proceedings. The Supreme Court also considered Order
21 Rule 35 which deals with a case of delivery of possession of
immoveable property and held that Order 21, Rule 97 conceives of
cases where delivery of possession to decree-holder or purchaser is
resisted by any person and the expression 'Any person' is wider
enough including even a person not bound by a decree or claiming
right in the property on his own including that of a tenant including
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stranger.
60. In my view even if the plaintiffs or the said Ishwara
Shankar Khot were not made parties to the said suit R.C.S. No.4 of
1984 but were only made a party to the execution proceedings by the
defendants herein, the plaintiffs could not have filed a suit for
injunction in respect of the suit property even if they could be
considered as strangers to the lis between the defendants herein and
not the parties to the said suit bearing R.C.S. No.4 of 1984. In my
view the purpose and intent of Order 21 Rules 97, 98 to 101 of the
Code of Civil Procedure is to avoid the multiplicity of the proceedings
and thus all the issues raised by various parties and even stranger in
respect of the same cause of action could be agitated only in the
execution proceedings and not by a separate suit. I am respectfully
bound by the principles laid down by the Supreme Court in case of
Shreenath & Another (supra) which squarely applies to the facts of
this case.
61. Insofar as submission of the learned counsel for the
plaintiffs that the defendants did not raise any objection of jurisdiction
before the learned trial judge in the suit bearing R.C.S. No.269 of
2001 filed by the plaintiffs for perpetual injunction on the ground that
the application for execution of the decree passed in suit bearing
R.C.S. No.4 of 1984 was pending before the executing court is
concerned, there is no waiver against the statute. The plaintiffs
themselves had made an averment in the plaint in the suit bearing
R.C.S. No.269 of 2001 about filing of the suit R.C.S. No.4 of 1984,
the decree passed therein and the dismissal of the appeal filed by the
plaintiffs. In my view even if no specific issue of jurisdiction was
raised by the defendants in the said suit No.269 of 2001, the learned
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trial judge could not have decided the said suit for perpetual injunction
in view of the mandatory provisions of Order 21, Rules 97, 98 read
with Rule 101 of the Code of Civil Procedure, 1908. Supreme Court
in case of Vithalbhai (P) Ltd. (supra) has held that no amount of
waiver or consent can confer jurisdiction on a court which it inherently
lacks or where none exists.
62. Even otherwise the plaint filed by the original plaintiffs
clearly indicates that the plaintiffs had disclosed about filing of the suit
for specific performance by the defendants, the decree passed
therein against the father of the plaintiffs and other defendants
thereto, the appeal filed by the father of the plaintiffs and about the
execution application filed by the defendants. A perusal of the order
passed by the learned trial judge clearly indicates that the learned
trial judge had discussed this issue at length in the impugned order
and has rightly rejected the suit for perpetual injunction filed by the
plaintiffs. The learned trial judge also considered the oral evidence of
the plaintiff no.1 and more particularly his cross examination in which
he had admitted that he was informed about the proceedings filed by
the defendants in the year 1992 but he did not make any further
enquiry in the matter.
63. The next question that arises for consideration of this court
is whether the lower appellate court could have passed order and
decree of perpetual injunction against the defendants though the title
in respect of the suit property was in dispute and was under cloud.
The plaintiffs themselves had referred to various proceedings in
respect of the title in respect of the suit property in the plaint. The
defendants had also in the written statement had disclosed about the
pendency of the execution proceedings. Be that as it may, in my view
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the lower appellate court thus could not have interfered with the
finding recorded by the learned trial judge and the decree refusing to
grant perpetual injunction and could not have granted an order of
perpetual injunction in favour of the original plaintiffs and against the
defendants in a suit for perpetual injunction simplicitor and in absence
of the plaintiffs seeking a declaration of title even if any such suit for
injunction could have been maintained.
64. The Supreme Court in case of Krishnadevi Malchand
Kamathia & Ors. (supra) has held that even if any order is void, it is
required to be so declared by a competent forum and it is not
permissible for any person to ignore the same merely because in his
opinion the order is void. It is held that if according to a person an
order is void, the party aggrieved by the same cannot decide that the
said order is not binding upon it but has to approach the court for
seeking such declaration. It is held that the order can be void for one
purpose or for one person, it may not be so for another purpose or
another person. The plaintiffs therefore could not have raised a plea
before the lower appellate court that the decree for specific
performance in favour of the defendants was not binding upon the
plaintiffs on one or the other ground and more particularly after the
appeal filed by their predecessor in title challenging the said decree
came to be dismissed and the said decree had attained finality.
65. Supreme Court in case of Anathula Sudhakar (supra) has
held that where the title of plaintiff is under a cloud or in dispute and
he is not in possession or not able to establish possession,
necessarily the plaintiff will have to file a suit for declaration,
possession and injunction. In my view the plaintiffs thus could not
have filed a suit for injunction against the defendants whose
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ownership was established in the said suit for specific performance
and a decree passed therein had attained finality. The judgment of
Supreme Court in case of Anathula Sudhakar (supra) squarely
applies to the facts of this case. I am respectfully bound by the said
judgment.
66. A perusal of the record indicates that in the said suit
(R.C.S. N0.4 of 1984) filed by the defendants inter-alia praying for
specific performance of the suit agreement, Mr.Prakash Risbud and
others who were parties to the said suit did not disclose about the
alleged sale deed of the suit property in favour of Mr.Shankar Dharma
Khot. Since the plaintiffs were fully aware of the proceedings filed by
the defendants for specific performance of the such agreement and
the decree passed by the trial court and that the appeal against the
said decree having been dismissed, it is clear that the plaintiffs who
had alleged to have purchased the suit property could not have been
considered as the bona-fide purchaser without notice. The
submission of the learned counsel for the plaintiffs that the agreement
for sale in favour of the plaintiffs being a registered agreement will
prevail upon the unregistered agreement for sale in favour of the
defendants has no merits in the facts and circumstances of this case.
The lower appellate court could not have gone into the validity of the
decree passed by the trial court in the said suit R.C.S. No.4 of 1984 in
the suit for injunction filed by the plaintiffs which decree has attained
finality. No injunction in favour of the plaintiffs who were not the
bona-fide purchasers and were having sufficient notice of the earlier
decree passed in favour of the defendants and that the same had
attained finality could be granted by the lower appellate court.
67. Insofar as submission of the learned counsel for the
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plaintiffs that there was a constructive notice to all the members of the
public about the sale of the suit property in view of section 3 of the
Transfer of Property Act, 1882 read with section 50 of the
Registration Act, 1902 is concerned, there is no dispute that in view of
section 3 of the Transfer of Property Act, 1882 read with section 50 of
the Registration Act, there would be a constructive notice to all the
members of the public about sale of a property. However, in view of
the fact that there was no dispute that the agreement for sale was
already entered into in favour of the defendants by the predecessor in
title of the plaintiffs and in a suit for specific performance filed by the
defendants, there was a decree passed by the competent court which
decree has attained finality. The provisions of Section 3 of the
Transfer of Property Act, 1882 read with section 50 of the
Registration Act, 1902 would not assist the case of the plaintiffs.
68. The plaintiffs were fully aware of the decree passed in
favour of the defendants and were even impleaded as parties to the
execution application cannot be allowed to raise this issue. Be that
as it may, the lower appellate court could not have gone into the
validity of the decree passed by the learned trial judge in the
independent proceedings filed by the defendants for specific
performance or about the validity of the execution proceedings filed
by the defendants for possession and other reliefs.
69. There was no dispute that pursuant to the decree for
specific performance granted in favour of the defendants, the trial
court in the execution proceedings filed by the defendants in the said
suit had already directed the execution of the sale deed in favour of
the defendants and that part of the decree was already executed.
The lower appellate court in my view thus could not have passed any
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order contrary to the order passed by the executing court in the
independent proceedings which order had attained finality and to
make the said order unexecutable. In my view the lower appellate
court has exceeded its jurisdiction by granting order of perpetual
injunction in favour of the plaintiffs and against the defendants
thereby restraining the defendants from obtaining possession of the
suit property in execution of the decree which decree had attained
finality.
70. Supreme Court in case of Dalip Singh (supra) has held
that a litigant, who attempts to pollute the stream of justice or who
touches the pure fountain of justice with tainted hands, is not entitled
to any relief, interim or final. The Supreme Court has in the said
judgment approved the principles that the litigant who has not come
to the court with clean hands and has not candidly disclosed all the
facts that he was aware of and he intends to delay the proceedings,
then the Court, will non-suit him on the ground of contumacious
conduct. It is held that if a party is guilty of misleading the Court and
has not disclosed relevant and material facts, his proceedings may be
dismissed at the threshold without considering the merits of the claim.
A perusal of the record in this matter clearly indicates that the said
Mr. Prakash Risbud who was a party defendants to the suit for
specific performance filed by the defendants did not disclose about
the alleged sale deed executed in favour of the alleged subsequent
purchaser. The predecessor of title of the plaintiffs and the plaintiffs
themselves having not disclosed true and correct facts before the
court were liable to be non-suited by the lower appellate court instead
of granting a decree of perpetual injunction in their favour.
71. Insofar as submission of the learned counsel for the
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plaintiffs that on the date of the filing of suit bearing R.C.S. No. 4 of
1984, Mr.Prakash Risbud was not the owner of the suit property but
Mr.Shankar Dharma Khot was the owner of the suit property is
concerned, the defendants in the said suit including Mr.Prakash
Risbud did not disclose about the alleged sale transaction in respect
of the suit property in favour of Mr.Shankar Khot. When the
defendants herein came to know about the name of Ishwara Shankar
Khot in the mutation entries, he was impleaded as the party to the
execution proceedings. After demise of the said Prakash Risbud
even the plaintiffs herein were impleaded as party to the execution
application by the defendants.
72. Insofar as submission of the learned counsel for the
plaintiffs that the plaintiffs had not claimed right, title or interest in the
suit property as legal heirs of Mr.Prakash Risbud but were claiming to
be owner of the suit property by virtue of agreement for sale on 25 th
April, 2001 by Ishwara Shankar Khot in favour of the plaintiffs and as
a result thereof, their status was totally changed is concerned, in my
view there is no merit in this submission of the learned counsel for the
plaintiffs. The said suit filed by the defendants for specific
performance was already decreed which decree had attained finality
much prior to the date of the said agreement for sale dated 25 th April
2001 i.e. on 30th March 1991 and the appeal having been dismissed
on 16th April, 1999. The execution of such agreement for sale on 25 th
April, 2001 by Ishwara Shankar Khot in favour of the plaintiffs during
the pendency of execution application in my prima-facie view would
not create any right, title or interest in the said property in favour of
the plaintiffs. A perusal of the record indicates that though the father
of the plaintiffs was impleaded as a party defendant to the said suit
bearing R.C.S. No.4 of 1984 and the plaintiffs themselves were
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impleaded as party to the execution application, the plaintiffs though
were fully aware of the decree and pending execution application in
respect of the suit property entered into agreement for sale. The
plaintiffs thus could not have been considered as a bona-fide
purchaser without notice. Merely because they had entered into an
agreement for sale in the facts and circumstances of this case, no title
could be derived by them under the said agreement for sale dated
24th January, 2001.
73. Insofar as judgment of Supreme Court in case of
Vishwanath Bapurao Sabale (supra) relied upon by the learned
counsel for the plaintiffs is concerned, the facts before the Supreme
Court in the said judgment were totally different. In this case, the
plaintiffs were fully aware of the proceedings filed by the defendants
against the father of the plaintiffs and they being party to the
execution proceedings could not have derived any title even if had
entered into an agreement for sale in a different capacity. In my view
the action on the part of the plaintiffs to enter into an agreement for
sale at such a late stage after fully knowing well about the decree
passed by the trial court and the dismissal of the appeal filed by the
father of the plaintiffs and during the pendency of execution
application would not change the character of the possession of the
plaintiffs in the suit property.
74. Insofar as judgment of Supreme Court in case of
Vithalbhai (P) Ltd. (supra) relied upon by the learned counsel for the
plaintiffs in support of the submissions that since no issue of
maintainability of suit filed by the plaintiffs was raised by the
defendants, the learned trial judge could not have dismissed the suit
or that there was no bar against the lower appellate court from
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passing a decree for perpetual injunction is concerned, Supreme
Court in the case of Vithalbhai (P) Ltd. (supra) had considered a
case where no objection about the maintainability of the suit was
raised on the ground of the suit being premature and has held that if
the suit is proceeded ahead and at a much later stage the Court is
called upon to decide the plea as to non-maintainability of the suit on
account of its being premature, then the Court shall not necessarily
dismiss the suit. The Court would examine if any prejudice has been
caused to the defendant or any manifest injustice would result to the
defendant if the suit was to be decreed.
75.
The Supreme Court in the said judgment also held that the
Court shall not exercise its discretion in favour of decreeing a
premature suit in a case when there is a mandatory bar created by a
statute which disables the plaintiff from filing the suit on or before a
particular date or the occurrence of a particular event which would
have the effect of defeating a public policy or public purpose or if such
premature institution renders the presentation itself patently void and
the invalidity is incurable such as when it goes to the root of the
jurisdiction of the court. Supreme Court also held that no amount of
waiver or consent can confer jurisdiction on a Court which it
inherently lacks or where none exists. In my view the said judgment
of Supreme Court assist the case of the defendants and not the
plaintiffs. Even if no objection about jurisdiction was raised
specifically by the defendants in the suit for perpetual injunction filed
by the defendants, both the parties had specifically pleaded about the
existence of the decree in respect of the same suit property and
pendency of the execution application in respect thereof.
76. Insofar as judgment of Full Bench of this court in case of
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Bhartiben Shah (supra), relied upon by the learned counsel for the
plaintiffs is concerned, it is not held in the said judgment that even if a
separate suit is not maintainable and is barred and inspite of such
provisions in the Code of Civil Procedure, 1908, the suit is
entertained, the court will have no power to interfere with such an
order or decree of the lower court. The said judgment in my view
does not assist the case of the plaintiffs.
77. Insofar as submission of the learned counsel for the
plaintiffs that the decree for specific performance granted by the
learned trial judge in a suit bearing R.C.S. No.4 of 1984 was not
executable against the plaintiffs is concerned, even this issue could
not have been decided by the lower appellate court in the appeal filed
by the plaintiffs impugning the decree passed against the plaintiffs by
the learned trial judge in a suit for perpetual injunction. The plaintiffs
having failed to raise this issue in the execution proceedings, could
not have been allowed to raise this issue in the proceedings before
the lower appellate court arising out of the proceedings dismissing the
suit for perpetual injunction.
78. Insofar as submission of the learned counsel for the
plaintiffs that mere agreement to sale in favour of the defendants by
the erstwhile owner would not create any interest in the suit property
in view of section 54 of the Transfer of Property Act, 1882 is
concerned, the fact remain that the said suit for specific performance
was admittedly decreed and the appeal against the said decree was
dismissed. The existence of such unregistered agreement for sale
was proved. Merely because subsequently an agreement for sale is
executed by the original owner which agreement is subsequently
registered would not nullify the effect of the decree passed by the
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competent court. The reliance placed on the judgment of Calcutta
High Court in case of Hiralal Agarwala (supra) by the learned
counsel for the plaintiffs is thus totally misplaced.
79. Insofar as submission of the learned counsel for the
plaintiffs that the defendants were never given possession of the suit
property by Vyankatesh Risbud is concerned, there is no dispute that
an application for possession is already filed by the defendants before
the executing court and the same is pending. The sale deed
executed in favour of the defendants pursuant to an order of the
executing court indicates that he was put in possession. Be that as it
may, the lower appellate court could not have passed an order of
perpetual injunction against the defendants from executing a decree
for possession which has attained finality.
80. In my view, the order and judgment of the lower appellate
court is totally erroneous and is contrary to the well settled principles
of law summarized aforesaid and is in gross violation of the
provisions of Code of Civil Procedure referred to aforesaid and thus
deserves to be set aside.
81. Insofar as substantial question of law no.1 formulated by
this court is concerned, the question is answered in negative. The
findings of the lower appellate court is totally inconsistent and
contradictory.
82. Insofar as substantial question of law no.2 is concerned,
the said question is answered in negative. In my view the decree
passed by the learned trial judge in R.C.S. No.4 of 1984 was binding
on the plaintiffs also by which decree the right, title and interest of the
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defendants herein in the suit property were crystallized in his favour
and thus the lower appellate court in my view could not have passed
a decree for grant of permanent injunction contrary to such decree
passed by the learned trial judge in R.C.S. No.4 of 1984 for specific
performance and possession which decree had attained finality.
83. I, therefore, pass the following order :-
a). The impugned oral judgment delivered by the Principal
District Judge, Sangli (Lower Appellate Court) in Regular Civil Appeal
No. 84 of 2006 is set aside. ig Judgment and decree dated 25 th
January, 2006 passed by the learned Civil Judge, Junior Division,
Miraj dismissing the Regular Civil Suit No. 269 of 2001 is upheld.
Regular Civil Suit No. 269 of 2001 filed by the plaintiffs is dismissed.
84. Second Appeal No. 217 of 2013 is allowed in the aforesaid
terms.
85. In view of the disposal of the second appeal, Civil
Application No.916 of 2013 does not survive and is accordingly
disposed of. No order as to costs.
(R.D. DHANUKA, J.)
At the request of the learned counsel appearing for the
respondents (original plaintiffs), operation of this order is stayed for a
period of eight weeks from today.
(R.D. DHANUKA, J.)
