Smt. Zakiya Farukhi vs Shri Shyampada Tarafdar
2023 Latest Caselaw 5919 MP

                                                            1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                ON THE 12 th OF APRIL, 2023
                                             SECOND APPEAL No. 1808 of 2022

                          BETWEEN:-
                          SMT. ZAKIYA FARUKHI W/O SHRI SULTAN MASOOD,
                          AGED ABOUT 63 YEARS, 131/D SECTOR EAST KAMLA
                          NAGAR WARD NO. 62 NARELA SHANKARI TEHSIL
                          HUZUR BHOPAL M.P. (MADHYA PRADESH)

                                                                                        .....APPELLANT
                          (BY SHRI M. SHAFIQULLAH-ADVOCATE )

                          AND
                          1.    SHRI SHYAMPADA TARAFDAR       S/O SHRI
                                SADHURAM, AGED ABOUT 64 YEARS, MIG 36 B
                                SECTOR SONAGIRI PIPLANI BHEL BHOPAL M.P.
                                (MADHYA PRADESH)

                          2.    NARELA SHANKARI GREH NIRMAN SHAHKARI
                                SAMITI MARYADIT BHOPAL THROUGH VICE
                                PRESIDENT RAEES WARIS S/O SHRI NISAR WARIS
                                SALEHA PARISHAR KAMLA NAGAR, BEHIND
                                NIJAMUDDIN COLONY BHOPAL M.P. (MADHYA
                                PRADESH)

                                                                                     .....RESPONDENTS


                                This appeal coming on for admission this day, th e court passed the
                          following:
                                                             ORDER

This second appeal has been preferred by appellant/defendant 2

challenging the judgment and decree dated 30.06.2022 passed by 23rd District Judge, Bhopal in Civil Appeal Nos. 68/2019 & 26/2020 affirming the judgment and decree dated 30.10.2018 passed by 9th Civil Judge Class-II, Bhopal in Civil Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/13/2023 5:54:52 PM

Suit No.475-A/2008, whereby learned Courts below have concurrently dismissed the suit filed by respondent 2/plaintiff-society for declaring the sale deed dated 28.07.1995 (Ex.P/2) to be null and void executed by plaintiff-society in favour of defendant 1-Shri Shyamapada Tarafdar and at the same time also decreed the counter claim filed by defendant 1 for declaration of title and for declaring the sale deed dated 17.09.2010 (Ex D/6) null and void as well as restoration of possession after removing construction.

2. Learned counsel for the appellant/defendant 2 submits that the defendant 2 is bonafide purchaser without prior knowledge of the sale deed executed by plaintiff in favour of defendant 1. He further submits that the plaintiff being

owner of the property rightly executed sale deed in favour of the defendant 2 after receipt of entire consideration and thereafter the defendant 2 got raised construction of house after obtaining necessary permission from the local authorities and is residing in the house. Learned counsel for the appellant submits that because no construction was raised within three years by defendant 1 after execution of sale deed dated 28.07.1995 (Ex.P/2) in her favour, therefore, as per Clause 43(1) of by-laws of the society, sale deed dated 28.07.1995 lost its importance and the plot was automatically surrendered in favour of the society and resultantly, the defendant 1 being not the owner of the plot on the basis of sale deed dated 28.07.1995, sale deed executed by plaintiff in favour of defendant 2 cannot be declared null and void and the defendant 1 is not entitled for possession by way of counter claim, because counter claim by co-defendant against the co-defendant is not maintainable. In support of his submissions, learned counsel for the appellant placed reliance on the decision of this Court in the case of Mohd. Shareef Khan Vs. Mohd. Hanif AIR 2023 MP 25. By placing reliance on the decision of Supreme Court in the case of Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/13/2023 5:54:52 PM

Sudhamayee Pathak Vs. Bibhu Prasad Sahu AIR 2022 SC 4304, he submits that the defendant 2/appellant was wrongly impleaded in the suit. As such he prays for admission of second appeal.

3. Heard learned counsel for the appellant and perused the record. 4 . Undisputedly, sale deed dated 28.07.1995 (Ex.P/2) was executed by plaintiff in favour of defendant 1. It is well settled that upon execution and registration of the sale deed, title passes in favour of the purchaser. It is clear from the record that the plaintiff society has failed to prove breach of any of the by-laws of the society and till now the sale deed dated 28.07.1995 (Ex.P/2) executed in favour of defendant 1 has not been cancelled by any competent Court. The present suit has also been filed only for declaration and no relief of cancellation of sale deed and consequential relief, has been prayed in the plaint. The sale deed (Ex P/2) is a clear sale deed and it does not contain any condition regarding raising of construction within 3 years.

5. After passing of the ex-parte decree on 14.07.2010, in the suit instituted by plaintiff on 12.05.2008, the sale deed was executed by plaintiff in favour of defendant 2 on 17.09.2010, thereafter, upon setting aside the ex-parte decree on 28.01.2014, suit was restored and upon moving the application under Order 1 Rule 10 CPC by defendant 1, the defendant 2 was impleaded as party, who in the aforesaid circumstances, was necessary party to the present suit. The

impleadment of defendant 2 was not challenged by anybody, either by defendant 2 or by the plaintiff, as such impleadment can not be challenged here. The counter claim in question filed by defendant 1 against the defendant 2 is not only against the defendant 2 but is also against the plaintiff, therefore, counter claim which was filed by defendant 1 against the defendant 2 as well as

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/13/2023 5:54:52 PM

against the plaintiff was maintainable, which has rightly been decreed by learned Courts below.

6. In view of the aforesaid discussion, in my considered opinion, learned Courts below have not committed any illegality in passing the impugned judgment and decree, therefore, there being no substantial question of law involved in the second appeal, it is dismissed in limine under Order 41 Rule 11 CPC.

7. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE sh

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/13/2023 5:54:52 PM