Bombay High Court
Leelabai Sarjerao Unde vs Sayyed Ahmedali Chandali Died ... on 24 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.616 OF 2019
WITH
CIVIL APPLICATION NO.13815 OF 2019
IN SA/616/2019
LEELABAI SARJERAO UNDE
VERSUS
SAYYED AHMEDALI CHANDALI (DEAD)
THROUGH L.RS. AND OTHERS
.....
Advocate for Appellant : Mr. V. R. Dhorde
Advocate for Respondent No.14 : Mr. D. R. Adhav
.....
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 24-08-2021.
ORDER :
1. Present appeal has been filed by the original plaintiff challenging
the concurrent Judgment and findings of Courts below. She had filed
Regular Civil Suit No.104 of 2007 before Civil Judge, Junior Division,
Rahuri, for declaration that decree passed in Regular Civil Suit No.43
of 1987 by the said Court is obtained by practicing fraud upon the
Court, illegal and not binding on her. Another declaration was prayed
that the suit property described in paragraph No.1-A of the plaint has
become the separate property of the plaintiff and for deletion of the
same from the partition in the decree passed in Regular Civil Suit
2 SA 616-2019, CA 13815-2019
No.43 of 1987. The said suit came to be dismissed on 16-03-2018
and the appeal filed by the present appellant Regular Civil Appeal
No.144 of 2018 has been dismissed by learned Adhoc District Judge-
4, Ahmednagar on 15-10-2019. Hence, this second appeal.
2. Heard learned Advocate Mr. V. R. Dhorde for appellant and
learned Advocate Mr. D. R. Adhav for respondent No.14.
3. It has been vehemently submitted on behalf of the appellant
that both the Courts below have not considered the legal effects as
well as facts in chronology and the consequences of not making the
present plaintiff as party to said suit for partition Regular Civil Suit
No.43 of 1987 in spite of having knowledge about sale of the same
in favour of the plaintiff. Both the Courts below have misinterpreted
the provisions of Section 52 of the Transfer of Property Act. The
plaintiff had purchased the suit property from original defendant
No.8. Original defendant No.8 had purchased the suit property
described in para 1-A of the paint from four brothers i.e. defendants
No.1 to 4 on 10-01-1975. The registered sale deed in favour of
plaintiff is dated 22-03-1991. In fact, the original property belong to
defendants No.1 to 4 and one Akhtar Ali. It was partitioned prior to
1975 and each brother was allotted 1/5th share and, therefore, the
3 SA 616-2019, CA 13815-2019
property described in para No.1-A and 1-B were created out of that
the said property described in para 1-A was sold by the four brothers
to defendant No.8. Land Survey No.186/4B was allotted to
defendant No.1 as his 1/5th share. In spite of that, defendant No.1
illegally filed Regular Civil Suit No.43 of 1987 for partition and
separate possession. That suit came to be decreed and in fact the
defendant No.1 had knowledge that the present defendant No.8 had
sold the suit property to the plaintiff, yet she was not added as party
to the said proceedings and, therefore, the plaintiff was contending
that the said decree in Regular Civil Suit No.43 of 1987 has been
obtained by practicing fraud upon the Court. That decree was not
binding on the plaintiff and as such the property sold to the plaintiff
now deserves to be excluded from partition as the said decree is put
to execution in Regular Darkhast No.18 of 2006. Substantial
questions of law are arising in this case. The learned Advocate for
the appellant has produced the photo copies of the documents which
he wanted to rely and they are mainly about 7/12 extract, Taba
Pavti i.e. possession receipt, sale deed which was executed by
defendant No.1 in favour of one Vijay Machindra Dhokane during the
pendency of the suit before the Trial Court. The paper book of the
First Appellate Court is also made available.
4 SA 616-2019, CA 13815-2019
4. Per contra, the learned Advocate appearing for the respondent
No.14/original defendant No.14 supported the reasons given by both
the Courts below.
5. It is to be noted that both the Courts below have held that
plaintiff has become owner of the suit property, however, she has
failed to prove that Regular Civil Suit No.43 of 1987 was obtained by
practicing fraud on the Court. She has failed to prove that the said
decree in Regular Civil Suit No.43 of 1987 is not binding on her and
the said property needs to be excluded from Regular Darkhast No.18
of 2006. This is mainly on the basis of the fact that admittedly when
the plaintiff had purchased the suit property from defendant No.8 on
22-03-1991, Regular Civil Suit No.43 of 1987 was pending. Learned
Trial Judge has correctly considered the scope of Section 52 of the
Transfer of Property Act. Reliance was placed on the decision in
Pralhad Jagannath Jevale and others vs. Sitabai chandar Nikam
and others, reported in 2011(4) Mh.L.J.137 and Shivaji Bhausaheb
Bankar vs. Jijabai Prabhakar Alvane and others, reported in 2016
(4) Mh.L.J. 939. In both these decisions this Court has categorically
held that the registration of the notice of lis pendens is not required
under Section 52 of the Transfer of Property Act to those properties
5 SA 616-2019, CA 13815-2019
which are situated in other parts of State of Maharashtra (other than
Mumbai). Even if we accept that defendant No.1 would have
knowledge about the sale transaction between defendant No.8 and
plaintiff, yet since the plaintiff could be purchaser of a purchaser,
her rights would be subject to the rights which defendant No.8 can
transfer in the suit property. When registration of the notice was
not compulsory for defendant No.1, plaintiff cannot say that the
decree that has been passed in favour of defendant No.1 was
obtained by practicing fraud on Court. The purchaser i.e. defendant
No.8 was party to that proceedings. It was for the defendant No.8
to disclose it to the Court that he has sold out the property.
Secondly, the plaintiff has not stated as to what precautions she had
taken before purchasing the property from defendant No.8.
Defendant No.8 was in fact duty bound to give clear title to the
plaintiff, however, there is equal duty on the plaintiff to see that the
property which she is purchasing is free from any encumbrance or
not. What precautions she had taken has not been told. In fact, she
has examined only the power of attorney to support her averments.
What kind of search was taken by the plaintiff, in other words, what
kind of precautions were taken by her before entering into the sale
transaction was within the personal knowledge of the plaintiff.
6 SA 616-2019, CA 13815-2019
Therefore, in view of Janki Vashdeo Bhojwani & Anr. vs. Indusind
Bank Ltd. & Ors, reported in AIR (2004) 3 SCC 584, the evidence on
behalf of the plaintif of her power of attorney will have to be
negatived. It will have to be held that there is absolutely no
evidence led by the plaintif to support her averments and, therefore,
the fnding given by both the Courts below that plaintif has failed to
prove that the decree in Regular Civil Suit No.43 of 1987 has been
obtained by practicing fraud, deserves to be upheld and that fnding
is not leading to any substantial question of law as contemplated. As
defendant No.8 was party to that suit, the decision in that suit was
binding on defendant No.8 and consequently, when the plaintif has
purchased the property from defendant No.8, the said decree is
binding on the plaintif.
6. No substantial question of law as contemplated under Section
100 of the Code of Civil Procedure is arising in this case requiring
admission of the second appeal, hence the second appeal stands
dismissed at the stage of admission. Pending Civil Application
stands disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
