Rajasthan High Court

Kalicharan S/O Shri Mool Chand vs Smt Roomali D/O Shri Mauli Ram W/O ... on 23 March, 2022

Bench: Prakash Gupta

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

             S.B. Civil Revision Petition No. 111/2019

1.     Kalicharan S/o Shri Mool Chand, Aged About 72 Years,
       Resident Of Surajpole, Bharatpur, Tehsil And District
       Bharatpur (Raj)
1/1.   Mahesh Chand S/o Late Shri Kalicharan, Aged About 57
       Years,
1/2.   Rajkumar S/o Late Shri Kalicharan, Aged About 52 Years,
       Both Resident of Surajpole, Bharatpur, Tehsil and District
       Bharatpur (Raj)
                                                                   ----Petitioners
                                   Versus
1.     Smt Roomali D/o Shri Mauli Ram W/o Shri Bhagwan Das,
       Resident Of Binarayan Gate, Bharatpur, Tehsil and District
       Bharatpur      (Rajasthan).           At      present       Resident    Of
       Goverdhan, Tehsil And District Mathura (U.P.)
2.     Smt. Leelawati D/o Shri Mauli Ram W/o Shri Girraj,
       Resident Of Binarayan Gate, Bharatpur, Tehsil And District
       Bharatpur (Rajasthan). Presently Resident Of Bhooda
       Gate, Tehsil Deeg, District Bharatpur,(Rajasthan)
                                               ....Respondents / Objectors

3. Shri Hari Singh

4. Shri Charan Singh (Since Deceased), Both are sons of Shri Mauli Ram, Resident Of Binarayan Gate, Bharatpur, Tehsil And District Bharatpur (Rajasthan)

5. Urban Improvement Trust, Bharatpur, Service Through Secretary, U.i.t. Bharatpur (Rajasthan)

----Respondents

For Petitioner(s) : Mr. RP Garg, Advocate For Respondent(s) : Mr. L.L. Gupta, Advocate Mr. Anupam Sharma, Advocate Mr. Anshul Sharma, Advocate

HON'BLE MR. JUSTICE PRAKASH GUPTA

Judgment

Date of Judgment :: 23/03/2022

(2 of 8) [CR-111/2019]

This revision petition has been filed by the petitioners-

Non applicants (for short, 'the Non Applicants') against the order

dated 16.3.2017 passed by Addl. District Judge No.4, Bharatpur

(for short, 'the Executing Court') in Misc. Application No. 2/2015,

whereby the application filed by the objectors-applicants (for

short, 'the applicants') under Section 47 readwith Order 21 Rule

97 and 101 CPC has been allowed and the judgment and decree

dated 13.1.2004 has been declared inexecutable and resultantly

the execution petition no. 112/2014 titled Kalicharan versus Hari

Singh has been dismissed.

Facts of the case are that about 2 ½-3 years ago from

20.1.1990, an oral agreement to sell was alleged to be entered

into by Mauli Ram with Kali Charan in relation to 1 bigha and 3

biswa of land situated in khasra no. 828, kasba Bharatpur Chak

No.1, Tehsil & Distt. Bharatpur in a sale consideration of Rs.

64,400/-, out of which Rs. 60,000/- in cash were said to be given

by Kali Charan to Mauli Ram at that time and possession of the

land in question was handed over to Kali Charan. Subsequently on

20.1.1990, agreement to sell was executed and the balance sale

consideration of Rs. 4400/- in cash were received by Mauli Ram.

Since the land in question was under acquisition by UIT,

Bharatpur, it was agreed that whenever the said land would be

released from UIT, Bharatpur, Mauli Ram would execute the sale

deed in favour of the purchaser or the person nominated by Kali

Charan. It was further mentioned that if the said land is not

released and if compensation is given by UIT, Bharatpur, then the

purchaser would be entitled to get compensation of the land in

question.

(3 of 8) [CR-111/2019]

Subsequently Mauli Ram expired. Kali Charan filed the

suit for specific performance of the agreement against the sons of

Mauli Ram and UIT, Bharatpur. A compromise was arrived at and

on that basis, on 13.1.2004 a compromise decree came to be

passed. An execution petition was filed. In the said execution

petition, Rumali wife of Mauli Ram and Leelawati, daughter of

Mauli Ram filed objections under Section 47 readwith Order 21

Rule 97 and 101 CPC, which were replied by the non applicants.

After hearing the arguments, the executing Court vide its order

dated 16.3.2017 allowed the objections, declared the judgment

and decree dated 13.1.2004 inexecutable and dismissed the

execution petition no. 112/2014. Hence, this revision petition has

been filed.

Learned counsel for the non applicants submits that

after the death of Mauli Ram, land in question was entered in the

name of his sons namely Hari Singh and Charan Singh in revenue

records. At that time, Hindu Succession Act, 2005 was not in

force, therefore, the names of applicants were not entered in the

revenue record. He further submits that the non applicants are

having possession of the land in question much prior to the

agreement to sell dated 20.1.1990 and after issuance of the

Notification under Section 4 of the Land Acquisition Act on

9.7.1987 and Notification under Section 6 on 30.8.1988,

possession of the land has not been taken from them. He further

submits that even otherwise, after issuance of the aforesaid

Notifications, the non applicants are entitled to compensation.

However, the learned executing court has utterly failed to consider

(4 of 8) [CR-111/2019]

this aspect of the matter and committed material illegality. On this

count, the impugned order is liable to be quashed and set-aside.

On the other hand, learned counsel for the respondents

submits that the purported agreement to sell was executed on

20.1.1990, whereas much prior to the said agreement to sell,

Notification under Section 4 of the Land Acquisition Act, 1894 (for

short, 'the Act of 1894') was issued on 9.7.1987 and Notification

under Section 6 was issued on 30.8.1988. Since no objections

were filed, land in question was acquired by UIT, Bharatpur and

award was passed on 28.7.1990. The said award dated 28.7.1990

was challenged by some persons by filing writ petitions (S.B. Civil

Writ Petition No. 5434/1990, S.B. Civil Writ Petition No.

1839/1991 and other connected cases) before this Court, which

were allowed vide order dated 8.12.1993. Thereafter D.B. Civil

Special Appeal (Writ) No. 164/1994 came to be filed by UIT,

Bharatpur challenging the order dated 8.12.1993 passed by the

learned Single Judge of this Court, which was allowed vide

judgment dated 18.4.1996 and the order dated 8.12.1993 passed

by the learned Single Judge was reversed and set-aside and

resultantly the writ petitions were rejected. Thereafter, possession

of the land in question was taken over on 13.8.1996, land was

vested in UIT, Bharatpur and compensation was paid on

10.8.1998. It was further submitted that on the basis of purported

agreement to sell dated 20.1.1990, the suit was filed on 7.2.1999,

which was time barred, but without its decision on merits, a

collusive decree was obtained on the basis of compromise. It was

further submitted that the land in question was ancestral property

and the applicants were also having their share in the land in

(5 of 8) [CR-111/2019]

question, despite that they were not impleaded as a party in the

suit and obtained the fraudulent decree.

They further submit that Notification under Section 4 of

the Act of 1894 was issued on 9.7.1987 and the Notification under

Section 6 was issued on 30.8.1988 i.e. much prior to the

purported agreement to sell dated 20.1.1990. On the basis of the

said agreement to sell dated 20.1.1990, the non applicants, who

are stepping under the shoes of the original khatedar, can claim

compensation only. In support of their case, they have relied upon

the following judgments:

i) The Rajasthan State Industrial Development and

Investment Corporation versus Subhash Sindhi Co-

operative Housing Society Jaipur & Ors. reported in AIR

2013 Supreme Court 1226

ii) Meera Sahni Versus Lt. Governor of Delhi & Ors.

reported in 2008 VIII AD (S.C.) 596

iii) Smt. Sneh Prabha Versus State of U.P. & Another

reported in AIR 1996 SC 540

iv) U.P. Jal Nigam, Lucknow through its Chariman and

another Versus M/s. Kalra Properties (P) ltd. Lucknow

and others reported in AIR 1996 Supreme Court 1170

Heard. Considered.

In the case of the Rajasthan State Industrial

Development and Investment Corporation (supra), it has

been held by the Hon'ble Apex Court:-

"7. There can be no quarrel with respect to the

settled legal proposition that a purchaser, subsequent

to the issuance of a Section 4 Notification in respect of

(6 of 8) [CR-111/2019]

the land, cannot challenge the acquisition proceedings,

and can only claim compensation as the sale

transaction in such a situation is void qua the

Government."

In the case of U.P. Jal Nigam, Lucknow (supra), it

has been held by the Hon'ble Apex Court:

"4....though the respondent acquired no title to the

land, at best he would be entitled to step into the shoes

of the owner and claim payment of the compensation."

In the case of Smt. Sneh Prabha (supra), it has been

held by the Hon'ble Apex Court:

"5.... Therefore, any alienation of he land after the

publication of the notification under Section 4 (1) does

not bind the Government or the beneficiary under the

acquisition. On taking possession of the land, all rights,

titles and interests in land stands vested in the State,

under Section 16 of the Act, free from all

encumbrances and thereby absolute title in the land is

acquired thereunder."

From a perusal of the material on record, it is evident

that the civil suit no. 186/2003 titled Kali Charan Versus Hari

Singh was decreed by the Trial Court on the basis of compromise

and a compromise decree dated 13.1.2004 came to be passed.

Thereafter the decree holder filed an execution petition, in which

he did not pray for execution of the whole decree and only prayed

for registration of the sale deed. In this regard, the Executing

Court while dismissing the execution petition, rightly observed as

under:

(7 of 8) [CR-111/2019]

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dated 20.1.1990 also makes it clear that the non applicants were

already knowing the fact that the land in question had been

acquired by UIT. Since the Notification under Section 4 of the Act

of 1894 was issued on 9.7.1987 and the Notification under Section

6 was issued on 30.8.1988 i.e. much prior to the purported

agreement to sell dated 20.1.1990 and thereafter land was

acquired of UIT, Bharatpur, which was upheld by the Division

Bench of this Court vide its judgment dated 18 th April, 1996 in

D.B. Civil Special Appeal (Writ) No. 164/1994. On passing the

award, taking over the possession of the acquired land on

13.8.1996 and vesting the land in UIT, the agreement to sell

dated 20.1.1990 had no legal sanctity and the same is void in the