Calcutta High Court (Appellete Side)
Sri Sanjit Jana vs Sri Chittaranjan Sarkar & Ors on 24 December, 2021
10
24.12.2021
Ct. 21
ab
C.O. 568 of 2021
(Via Video Conference)
Sri Sanjit Jana
-Vs-
Sri Chittaranjan Sarkar & Ors.
Mr. Sanjib Mal,
Mr. Soumen Bhattacharjee
... for the petitioner
Mr. Pinaki Ranjan Mitra
...for the Opposite Parties
Being aggrieved by the order of rejection of
application under section 151 Civil Procedure Code,
filed by petitioner/defendant no. 3 seeking permission
to dispose of a portion of his alleged purchased 32
decimal land from the plaintiff/opposite party no. 1, to
meet educational expenses of his child and for his
business purpose, by learned Civil Judge (Senior
Division), 3rd Court Howrah, in Title Suit No. 507 of
2018 on 11.01.21 has filed this application under
Article 227 of the Constitution of India.
Facts
necessary for determination of the present
application in nutshell is that, the plaintiff no. 1 has
claimed that he is not an educated person but who
knows only to sign his name was/is an absolute owner
of the entire A Schedule property measuring 4.77 acres
of land. The defendant no.1 being his trusted man he
engaged him to look after his such property and for the
said purpose he executed a power of attorney in favour
of defendant no. 1 and also to defend him in Title suit
no.16552 of 2014 filed against him by the defendant
no.3 in respect of some property deal which took place
between him and defendant no.3 sometime in the
month of March 2014.
Later it has come to his notice that the defendant
no. 1 most illegally inserted some clauses in power of
attorney empowering himself the right to dispose of the
property of the plaintiff no. 1 described in the Schedule
A. On the strength of such illegal power of attorney the
defendant no. 1 transferred more than 4 acres 37
decimals land in the name of his own mother the
defendant no. 2. The plaintiff never received any
consideration money against such transfer of his land
in favour of defendant no. 2.
It has also come to his notice that defendant no. 1
has most illegally transferred another 31:95 decimal of
land in favour of the defendant no. 3 too by executing
registered deeds. He has alleged that defendants in
conspiracy and in collusion with each other managed to
procure registered deeds in respect of B schedule
property, the possession of which is still with him and
also all original deeds pertaining to the schedule
properties. Thus he has filed Title Suit No.507 of 2018
for declaration of his title and interest over Schedule A
and for cancellation and declaration that sale deeds
dated 28.01.2016 executed by the defendant no1 in
favour of the defendant nos.2 & 3 in respect of Schedule
B property are illegal void and not binding upon him.
He has also prayed for permanent injunction against
the defendants restraining them from interfering with
the peaceful possession of plaintiff over the suit
property or from alienating, encumbering or changing
the nature and character of the schedule B property.
While the defendant no.3 has alleged that plaintiff
is a land broker and he executed a valid registered
power of attorney in favour of the defendant no.1 after
taking the entire consideration money for B schedule
property. The plaintiff himself had sold a portion of land
of Plot no. 6531 and entered into an agreement for sale
of remaining land of the said plot with the defendant
no.3, but when the plaintiff failed to execute a deed
then this defendant no.3 had to file Title Suit no.16552
of 2014 and at that time the plaintiff appointed
defendant no.1 as his constituted power of attorney.
The plaintiff received the consideration money for entire
A schedule property from the defendant no.1 when he
executed the power of attorney on 30.09.15 and which
he later revoked on 06.05.2016.
The defendant no.3 after purchase mutated his
name and has been paying rent to the Government and
has also obtained electric connection on his purchase
land from the plaintiff.
The plaintiff has obtained an order of temporary
injunction in the form of status quo against the
defendants restraining them from transferring,
alienating, encumbering and creating any third party
interest in respect of suit property and from changing
the nature and character of the same till disposal of the
suit.
That being aggrieved by such order of injunction,
the defendant no.3 has preferred an appeal before this
Hon'ble High Court being no. FMAT 1063 of 2019/FMA
1566 of 2019. Hon'ble Division Bench has been pleased
to modify the order of injunction dated 7th September
2019 and excluded 32 decimals land alleged to have
been purchased by the defendant no.3 from the purview
of the injunction order and gave liberty to the defendant
no.3 to dispose of 32 decimal land or any part of it and
create third party interest over the same, but after
taking necessary permission from the learned trial
court.
The defendant no.3 on the strength of such order
of Hon'ble Division Bench order has filed the impugned
application under section 151 CPC seeking permission
to dispose of a part of 32 decimal land, but learned
court below rejected the same with the findings that
sale deed on the basis of which the defendant no.3
claims his right to dispose of is under challenge and
also to avoid multiplicity of proceedings.
At the time of hearing learned advocate for the
petitioner/defendant no.3 submitted that there is no
bar in transferring a portion of the petitioner's
purchased 32 decimal land as the purchaser shall be
bound by the decree of the court in view of section 52 of
the Transfer of Property Act,1882. He also submits that
petitioners is a bona fide purchaser for value and who
have purchased 32 decimal land on payment of Rs. 37
lacs and which is apparent from the deeds itself and
from the bank statements of the petitioner. There is no
bar to transfer his purchased property.
He in support of his such contention has referred
to Sanjay Varma vs. Manik Roy & Ors, reported in AIR
2007 SC 1332 and Thomson Press (India) Ltd. Vs. Nanak
Builders and Investors P. Ltd. &Ors, reported in AIR
2013 SC 2389.
He also submits the defendant no.3 is in financial
difficulties. That in order to meet educational expenses
of his child in good educational institution and for his
business purpose he has no other option but to dispose
of a portion of his purchased 32 decimal land.
The facts and circumstances of the above cited
decisions are entirely different from the present one as
present case is not for specific performance of contract,
rather for cancellation of deeds of the defendant nos.2 &
3 for having obtained by practicing fraud upon plaintiff
by the defendant no.1.
It is true the doctrine of lis pendens is a doctrine
based on the ground that it is necessary for the
administration of justice that the decision of a court in
a suit should be binding not only on the litigating
parties but on those who derive title pendente lite.
Section 52 Of Transfer of Property Act, 1882 does not
annul the conveyance or the transfer otherwise, but to
render it subservient to the rights of the parties to a
litigation. And it is equally settled law that relief under
section 52 of the Act of 1882 is based on justice, equity
and good conscience.
In the present case the basis on which the
defendant no.3 has claimed to have acquired interest is
under challenge and alleged to have been procured by
practicing fraud without payment of consideration. The
deeds of the defendant no.3 is alleged to be collusive
one. No doubt, the defendant no.3 by producing bank
statements has been able to show transfer of Rupees
Four lacs in the name of the plaintiff on 20.03.2014 and
another Rupees Four lacs vide four different cheques on
20.01.2016, in total Rupees Eight lacs. He has also filed
money receipts dated 30.12.2015 and 01.01.2016
bearing signatures alleged to be that of plaintiff. There
is nothing on record to show how and in what manner
the defendant no.3 paid remaining consideration money
to the plaintiff. The deed in question was registered on
28.01.2016.
Since the plaintiff has alleged that he never
received any consideration money against the sale made
in favour of the defendant no.3 by the defendant no.1.
Therefore, those money receipts bearing signatures of
the plaintiff produced by the defendant no,3 may have
to face judicial scrutiny and may need to be examined
by an expert. When the sale deed of the defendant is
under challenge, then it would not be prudent on the
part of the court of law to permit the petitioner/
defendant no.3 to transfer any portion of the land
covered by the disputed deed as there will be no end to
litigation and every possibility of delay in delivery of
justice. In case the plaintiff succeeds in obtaining a
decree then he will have to face uphill task to get the
decree executed, if third party interest is allowed to
create over the subject matter of the dispute.
Therefore, this court does not find any infirmity,
illegality or material irregularity in the impugned order.
Accordingly, revisional application being C.O.568
of 2021 is dismissed and connected application, if any,
is disposed of.
Interim order, if any, stands discharged.
However, considering the nature of dispute and
facts and circumstances of the case, the learned court
below is requested to dispose of the case as
expeditiously as possible giving preference by fixing
short dates and without giving adjournments to either
of the parties without reasonable cause.
There will be no order as to costs.
All parties shall act in terms of the copy of the
order downloaded from the official website of this Court.
Urgent Xerox certified photocopies of this
judgment, if applied for, be given to the parties upon
compliance of the requisite formalities.
( Kesang Doma Bhutia, J.)
