Rajasthan High Court
Smt. Umrao Devi W/O Tara Chand vs Bodu S/O Deepa on 19 October, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 256/2022
1. Smt. Umrao Devi W/o Tara Chand, Resident Of Mehla,
Tehsil Mojmabad, District Jaipur (Raj.) (Since Deceased)
Through LRs:
1/1. Tara Chand S/o Laxman, Aged About 62 Years, Resident
Of Mehla Via Bagru, Tehsil Mojmabad, District Jaipur
(Raj.)
1/2. Vinod S/o Tara Chand (Father) And (Mother) Late Umrao
Devi, Aged About 41 Years, Resident Of Mehla Via Bagru,
Tehsil Mojmabad, District Jaipur (Raj.)
1/3. Karan S/o Tara Chand (Father) And (Mother) Late Umrao
Devi, Aged About 34 Years, Resident Of Mehla Via Bagru,
Tehsil Mojmabad, District Jaipur (Raj.)
1/4. Rajendra S/o Tara Chand (Father) And (Mother) Late
Umrao Devi, Aged About 32 Years, Resident Of Mehla Via
Bagru, Tehsil Mojmabad, District Jaipur (Raj.)
1/5. Kavita D/o Tara Chand (Father) And (Mother) Late Umrao
Devi, Aged About 28 Years, Resident Of Mehla Via Bagru,
Tehsil Mojmabad, District Jaipur (Raj.)
1/6. Neetu Devi D/o Tara Chand (Father) And (Mother) Late
Umrao Devi W/o Shri Jeewandhan, Aged About 38 Years,
Resident Of Village And Post Maroth, Tehsil Nawan,
District Nagaur (Raj.)
1/7. Sunita Devi D/o Tara Chand (Father) And (Mother) Late
Umrao Devi W/o Shri Amardhan, Aged About 36 Years,
Resident Of Village And Post Maroth, Tehsil Nawan,
District Nagaur (Raj.)
----Appellants-Plaintiffs
Versus
Bodu S/o Deepa, resident of Mehla, Tehsil Mojmabad, District
Jaipur (Raj.) (Deceased)
1. Smt. Sardari W/o Late Bodu, aged 75 years, resident of
Mehla, Tehsil Mojmabad, District Jaipur (Raj.)
2. Ramlal S/o Late Bodu, aged 57 years, resident of Mehla,
Tehsil Mojmabad, District Jaipur (Raj.)
3. Badri Narayan S/o Late Bodu, aged 48 years, resident of
Mehla, Tehsil Mojmabad, District Jaipur (Raj.)
4. Ramchandra S/o Late Bodu, aged 45 years, resident of Mehla,
Tehsil Mojmabad, District Jaipur (Raj.)
5. Narayan S/o Late Bodu, aged 42 years, resident of Mehla,
Tehsil Mojmabad, District Jaipur (Raj.)
6. Choturam S/o Late Bodu, aged 37 years, resident of Mehla,
Tehsil Mojmabad, District Jaipur (Raj.)
7.Smt. Prem Devi D/o Late Bodu, aged 39 years, resident of
Mehla, Tehsil Mojmabad, District Jaipur (Raj.)
8. Smt. Fefli D/o Late Bodu, aged 59 years, resident of Mehla,
Tehsil Mojmabad, District Jaipur (Raj.)
9. Smt. Heera Devi D/o Late Bodu, aged 50 years, resident of
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Mehla, Tehsil Mojmabad, District Jaipur (Raj.)
10.Ladu S/o Deepa, resident of Mehla, Tehsil Mojmabad, District
Jaipur (Raj.)
----Respondents-Defendants
For Appellant(s) : Mr. R.K. Daga with
Mr. Prashant Daga,
Mr. Hitesh Jain and
Mr. Tushar Bhatnagar
For Respondent(s) : Mr. Manoj Kumar Bhardwaj
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
19/10/2022
1. Heard counsel for both parties and perused the record.
2. This Court is of unequivocal view that the instant second
appeal at the behest of legal representatives of deceased
appellant-Smt.Umrao Devi, who preferred first appeal
No.36/2018, challenging the compromise decree dated 21.8.1989
as amended on 28.11.1994 passed in civil suit No.186/1988 for
specific performance and permanent injunction by the Civil Judge,
Sambhar Lake, District Jaipur is misuse of process of law and even
the first appeal was wrongly preferred. Appellant-Smt. Umrao Devi
claims her right, title and interest in agricultural lands in question
on the basis of registered sale deed dated 18.1.1993, executed by
defendant and judgment-debtor Ladu and steps in his shoe and
cannot claim better rights than the right of Ladu in lands in
question. As far as Ladu is concerned, his rights in respect of the
disputed land of 7.5 Biswa have already been adjudicated finally
and thereafter, in the execution petition No.3/2006, filed for
execution of the compromise decree dated 21.8.1989 as amended
on 28.11.1994, the sale deed dated 28.5.2013 has been executed
(3 of 7) [CSA-256/2022]
in favour of legal representatives of plaintiff-decree-holder-Bodu
by and on behalf of defendant-judgment-debtor Ladu and his
subsequent purchasers namely Smt. Laxmi Devi and Smt. Umrao
Devi (present appellant).
3. Counsel for appellants, at this stage, seeks permission to
withdraw the second appeal with liberty to avail other appropriate
remedy in law for claiming/ adjudication of rights of appellants in
respect of 7.5 Biswa land, purchased along with other land from
defendant-judgment-debtor Ladu through registered sale deed
dated 18.1.1993.
4. This Court, since has examined the entire record, therefore
deems it just and proper to record following facts as culled out
from record:
(i) Land of Khasra No. 1123/823 total measuring 10 Bigha 10
Biswa has already been divided in three equal 1/3-1/3-1/3 shares
among three brothers Bodu, Ladu and Kana all sons of Deepa.
(ii) It appears that Ladu entered into agreement to sale his
1/3rd share to his brother Bodu and Bodu instituted civil suit for
specific performance bearing No.186/1988 wherein both parties
entered into compromise on 8.8.1989. As per compromise deed
dated 8.8.1989, defendant Ladu agreed to sell half share of his
1/3rd share to plaintiff Bodu and on the basis of such
compromised, suit for specific performance was decreed vide
judgment dated 21.8.1989.
(iii) The compromise decree dated 21.8.1989 has been corrected
on an application under Section 151 and 152 CPC, vide order
dated 28.11.1994 and measurement of half portion of 1/3rd share
of Ladu has been clarified that half share of 1/3rd share of Ladu is
1 Bigha 15 Biswa instead of 1 Bigha 7.5 Biswa and simultaneously,
(4 of 7) [CSA-256/2022]
the Khasra number of land in issue was also corrected from
1183/823 to 1123/823. It may be noticed that out of total land of
Khasra No.1123/283 measuring 10 Bigha 10 Biswa, the
measurement of its 1/3rd share of Ladu undisputedly comes 3
Bigha 10 Biswa. It is not in dispute that 1 Bigha is equivalent to
20 Biswa. Thus, the 1/3rd share of 3 Bigha 10 Biswa is 70 Biswa.
Since defendant-judgment-debtor Ladu under the compromise
deed dated 8.8.1989 agreed to sell his half share of 1/3rd share to
plaintiff Bodu, therefore, out of 70 Biswa, he was required to sell
35 Biswa which is 1 Bigha 15 Biswa. It appears that in the
compromise deed dated 8.8.1989, half share of Ladu out of his
1/3rd share, came to be indicated as 1 Bigha 7.5 Biswa instead of
1 Bigha 15 Biswa and when on the basis of such compromise deed
dated 8.8.1989, a compromise decree dated 21.8.1989 was
passed and such error was noticed, then plaintiff moved
application under Section 151 and 152 CPC and that application
has been allowed and the judgment and decree dated 21.8.1989
has been corrected vide order dated 28.11.1994 and in place of 1
Bigha 7.5 Biswa, measurement has been corrected as 1 Bigha 15
Biswa.
(iv) Appellant- Umrao Devi claims to have purchased 2 Bigha 2
Biswa land out of 1/3 share of Ladu through registered sale deed
dated 18.1.1993. It may be noticed that Ladu has already entered
into compromise to sell half share out of 1/3rd share which should
have been 1 Bigha 15 Biswa, so left out share of Ladu is only 1
Bigha 15 Biswa, yet the sale deed dated 18.1.1993 has been
executed for the measurement of 2 Bigha 2 Biswa it means for 7
Biswa excessive area. This led to the present litigation.
(5 of 7) [CSA-256/2022]
(v) It has also come on record that Ladu also executed another
sale deed dated 28.3.1994 in respect of his 1/3rd share in favour
of appellant Smt. Laxmi Devi.
(vi) Legal representatives of decree holder Bodu, preferred
execution petition No.3/2006, to get the sale deed registered in
respect of 1 Bigha 15 Biswa pursuant to the compromise decree
dated 21.8.1989 as corrected on 28.11.1994. In this execution
petition, the judgment debtor Ladu raised objection under Section
47 of CPC that execution petition is time barred. The execution
petition was dismissed as time barred but in appeal, the order has
been reversed and execution petition has been treated within
limitation from the date of amended decree dated 28.11.1994.
The Judgment-debtor-Ladu again submitted objections under
Section 47 CPC dated 7.9.2012. His objections has been dismissed
on merits vide order dated 19.2.2013. In such objections, Ladu
nowhere whispered about the sale deed dated 18.1.1993 executed
in favour of appellant Smt. Umrao Devi.
(vii) Thereafter, Smt. Laxmi Devi submitted fresh objections
under Section 47 of CPC dated 19.3.2013, claiming to purchase
1/3rd share of Ladu, vide sale deed dated 28.3.1994, which too
were dismissed on merits vide order dated 16.4.2013.
(viii) The Executing Court, pursuant to compromise decree dated
21.8.1989 as amended vide order dated 28.11.1994, executed
registered sale deed dated 28.5.2013 in favour of legal
representatives of decree holder Bodu, in respect of half land of
1/3 share of the judgment-debtor Ladu i.e. 1 Bigha 15 Biswa and
has incorporated a recital that possession was already delivered.
(6 of 7) [CSA-256/2022]
(ix) The execution petition has been finally disposed of vide order
dated 2.7.2013 in full satisfaction of the compromise decree.
(x) Thereafter, appellant-Smt.Umrao Devi, who claimed her right
through judgment-debtor Ladu, on the basis of registered sale
deed dated 18.1.1993, preferred the first appeal seeking leave to
appeal to challenge the compromise dated 8.8.1989 and the
compromise decree dated 21.8.1989 as amended on 28.11.1994
as also order dated 15.5.2013 passed in execution petition.
(xi) At this juncture, Smt. Umrao Devi, on the basis of her sale
deed dated 18.1.1993 claimed that she purchased 2 Bigha 2 Biswa
from Ladu and out of her 2 Bigha 2 Biswa an area of 7 Biswa has
been included in the sale deed dated 28.5.2013 executed by the
Executing Court in favour of decree holder Bodu. Therefore,
instead of claiming her right, title and interest over the 7 Biswa
lands on the basis of her sale deed dated 18.1.1993 and to
challenge the sale deed dated 28.5.2013, Smt. Umrao Devi
preferred first appeal, in the guise of assailing the compromise
decree dated 21.8.1989 as amended on 28.11.1994 in suit
No.186/1988 as also assailing the order dated 15.5.2013 passed
in execution petition, whereas in the prayer of first appeal the sale
deed dated 28.5.2013 has been prayed to be declared as
cancelled.
(xii) The first appeal has been dismissed vide judgment dated
23.8.2022. Legal representatives of Smt. Umrao Devi have
preferred this second appeal assailing the judgment dated
23.8.2022.
5. Taking note of all aforementioned facts, where objections of
defendant-judgment-debtor Ladu have already been dismissed
and appellant Smt. Umrao Devi claims her right, title and interest
(7 of 7) [CSA-256/2022]
through Ladu on the basis of her sale deed dated 18.1.1993, at
the most could have challenged the sale deed dated 28.5.2013
executed in favour of plaintiff-decree-holder in execution petition
No.3/2006 within prescribed period of limitation. Yet the appellant,
choose to prefer first appeal and after dismissal of first appeal
vide impugned order dated 23.8.2022, now preferred this second
appeal.
6. Since legal representatives of deceased appellant-Smt.
Umrao Devi seeks permission to withdraw this second appeal,
therefore, the second appeal is dismissed as withdrawn with
observations that if any legal right still can be claimed by
appellants in respect of 7 Biswa land, alleged to be purchased
from Ladu under the sale deed dated 18.1.1993, they shall be free
to initiate appropriate legal proceedings, if permissible in law.
7. Record of both Courts below be sent back forthwith.
(SUDESH BANSAL),J
NITIN /96
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