Gujarat High Court
Kanta Rugnath Lohana vs Bai Nathi Amar & 6 on 19 February, 2014
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/249/1998 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 249 of 1998
In FIRST APPEAL NO. 304 of 1979
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil judge ?
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KANTA RUGNATH LOHANA....Appellant(s)
Versus
BAI NATHI AMAR & 6....Respondent(s)
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Appearance:
Mr B.B. Naik, Senior Advocate, assisted by Mr DM Thakkar for the Appellant
MR DHIRAJ M PATEL, ADVOCATE for the Respondents
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 19/02/2014
ORAL JUDGMENT
Page 1 of 14
C/LPA/249/1998 JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of filing this appeal, the appellant - original opponent No.1 has challenged the judgment and order dated 22 nd January 1998 passed by the learned Single Judge in First Appeal No.304 of 1979 whereby the learned Single Judge has allowed the appeal by quashing the judgment and decree passed by the learned Joint Civil Judge (Senior Division), Junagadh in Special Civil Suit No.87 of 1971.
2 The land bearing Survey No.127/1 admeasuring 19 acres 35 gunthas, situated at village Talala. Village Talala was a part of erstwhile State of Junagadh and the land belonged to one Sidi Nasar Amar. Said Sidi Nasar had two sons, namely, Amar Nasar and Abu Nasar. It appears that during the life time of said Sidi Nasar, Amar Nasar had left the village Talala and had settled down at village Jambur and the suit land was being cultivated by Abu Nasar. Amar Nasar had one daughter, named Bai Nathi Amar (the defendant no.1 in Special Civil Suit No. 87 of 1971). Said Bai Nathi Amar along with one Murjana Abu and Hirbai Abu (widow and daughter respectively of Abu Nasar) instituted a suit being Special Civil Suit No. 31 of 1966 in the Civil Court at Veraval, against Abdulla Nasar (son of Abu Nasar) for partition and share in the suit land. Pending the said suit, on 30th June, 1967, Bai Murjana and Abdulla Abu sold a piece of land admeasuring 4 acres out of the suit land to one Kantaben Rugnath, the plaintiff in Special Civil Suit No.87 of 1971. A sale deed (Exh.62) was executed and was registered also. The said sale deed does refer that all the three had undivided share in the suit land admeasuring 19 acres 35 gunthas and out of the said land, 4 acres were sold to Kantaben Rugnath for a sum of Rs.10,000/. Thus pending the Suit of 1966, part of the suit land was transferred to Bai Kantaben Rugnath, however, she was not joined as party respondent in the said proceedings. Ultimately, the said suit was compromised. A Page 2 of 14 C/LPA/249/1998 JUDGMENT compromise purshis (Exh.101) was submitted to the Court and a preliminary decree (Exh.104) in terms of compromise purshis was passed on 20th December, 1967. A final decree was passed on 18th April, 1970. Under the said compromise, Bai Nathi was given half the land and the decendants of Abu Nasar were given half of the suit land to be distributed amongst them in the proportion mentioned in the compromise purshis. After passing of the final decree on 18th April, 1970, as aforesaid, Bai Nathi sold her undivided share in the suit land to the present appellants by a sale deed executed on 6th August, 1970. Pursuant to the said sale deed, respondents Nos.2 and 3 herein filed an execution proceeding and claimed half share of the suit land being the successorintitle to Bai Nathi. The Collector divided the suit land and allotted one half of the land and handed over a piece of land admeasuring 8 acres 12 gunthas to them.
3. Bai Kantaben Rugnath instituted Regular Civil Suit No.116 of 1971 before the learned Civil Judge, Senior Division, Veraval and prayed for permanent injunction against the appellants of first appeals. The said suit was withdrawn by Bai Kantaben Rugnath. The appellants of first appeals, thereafter instituted above Special Civil Suit No. 75 of 1971 for permanent injunction against Bai Kantaben Rugnath and Bai Kantaben instituted above Special Civil Suit No. 87 of 1971 challenging the compromise decree passed in Suit of 1966. Both the suits were tried together. The learned Senior Civil Judge framed the following issues:
"10. From the above pleadings the then learned presiding which were subsequently recastad an Nazir's filing of written statement ex.92 As guardian of defts.Nos.4/1 to 4/7 and thus the issue at ex.49A are as under: Page 3 of 14 C/LPA/249/1998 JUDGMENT
1. Whether the plff. preves that she is in possesstion of the suit land since the sale deed dt.30.6.67 executed by deft no.4 and his mother ?
1.A Whehter the sale deed executed by deceased deft.no.4 and hismother is not binding to the beris of deceased deft.no.4 as contended in para 2 of The writen statement Ex.92 ?
2. Whether the plff. proves that deft.No.1 to 4 and 7 and Bai Murjan Abu had obtained consent decree in spl. c.s. no.31/66 by collusion and behind the back of the plaintiff?
3. Whether the plff. Roves that Abu Masar alone was the occuping of the suit land and was in exclusive possession of the same ?
4. Whether the Plff. Proves that the sale deed executed by deft. No.1 in favour of deft. Nos 2 and 3 is illegal void and not binding to the plaintiff ?
5. Whether the rejkam dated 18.4.70 is not binding to the plaintiff ?
6. Whether the sale deed dated 30.6.67 is illegal and void being violative of the provisions of the provisions of the Saurashtra Charkhed Tenancy settlement and agri. Lands ordinance, 1949 ordinance no.XII ?
7. Whether the document dt.30.6.67 is hit by lis pendens ?
8. Whether the suit is barred by res judicate in view of decree in spl.suit no.31/66 ?
9. Whether the court fees paid are insufficient and whether the plff. as pur correct valuation for the purpose of jurisdiction ?
9.A To what relief or reliefs, if any, is the plff. Entitled ?
11. My findings on the above issues for the reasons stated here inbelow are as under: Page 4 of 14 C/LPA/249/1998 JUDGMENT
1. In the afirmative up to the framing of rojkam, ex.124 dt. 18.12.70.
A.2 In the nagative.
2. In the affirmative.
3. In the affirmative.
4. In the affirmative to the extente of suit land adeasuring 4 acres only.
5. In the affirmative to the exdent of suit land admeasuring 4 acres only.
6. In the nagative.
7. In the nagative.
8. In the nagative.
8.A Court fees paid are sufficient.
Suit is properly valued for the purpose of jurisdiction
9. As per the final order below.
10. As per the final order below."
Thereafter, the learned Senior Civil Judge allowed the suit instituted by Bai Kantaben Rugnath was allowed and declared that the compromise purshis (Exh.101) dated 20th December, 1967, the preliminary decree (Exh.104) dated 20th December, 1967 and the final decree dated 18th April, 1970 passed in Special Civil Suit No. 31 of 1966 and the execution proceedings dated 18th December, 1970 were not binding to the right, title or interest of Bai Kantaben Rugnath, in so far as, the suit land admeasuring 4 acres was concerned. The Court further declared the sale deed dated 6th August, 1970 (Exh.102) as illegal, null and void and not binding to the right, title and interest of Bai Kantaben Rugnath. The suit instituted by the appellants - respondents Nos.2 and 3 herein was dismissed. The operative portion of the order reads as under:
Page 5 of 14C/LPA/249/1998 JUDGMENT "Special Civil Suit No.87/71 is decreed as under:
It is hereby declared that the compromise pursis Exhibit 101 dated 20.12.87, the preliminary decree, ex.104 dated 20.12.67, the final decree dt. 18.4.70 all of Spl. Suit No.31/66 as well the rojkam Ex.124 dt. 18.12.70 drawn is binding tot he right, title or interest of the plaintiff Bai Kanta Rughnath, so far as the suit land admeasuring 4 acres is concerned.
It is hereby further declared that the sale deed, ex.102 dated 6.8.70 executed by the deft. no.1 Bai Nathi Amar in favour of deft.No.2 Manji Thakaershi and deft. No.3 Madhubhai Thakersani is illegal, null and void and not binding to the right, tile or interest of Bai Kanta Rugnath, so far as the suit land admeasuring 4 acres is concerned and that the said defts. Nos.2 and 3 Manji Thakkershi and Madhubhai Thakershi respectively have no legal right,title or interest over the suit land.
The deft.no.2 Manji thakershi and deft.no.3 Madhubhai Thakershi do handover the poaceful vacent possession of the sult land admeasuring 4 acres to the plaintiff Bai Kanta Rugnath on or before 28.2.79.
Inquiry to be held under O.20, R.12 of C.P. Code regarding mesne prefits.
Defts.Nos.1, 2, 3, 4/1 to 4/3 and 7 to bear their own costs and to pay to the plaintiff as well to defts. Nos.4/4 to 4/7 and 5 & 6 their costs of this suit.
A decree to be drawn in terms of the above order.
_____________ O R D E R SP.C.S.No.75/71 is dismissed with costs.
Plaintiff a to bear their wen cests and to pay to the defts. the costs of this suit.
A decree to be drawn in terms of the above order.
________________
Page 6 of 14
C/LPA/249/1998 JUDGMENT
A copy of this judgment be placed in R & P of spl. Gs. No.75/71".
The aforesaid common judgement and decree passed by the trial Court was challenged by respondent No.1 by filing First Appeal No.303 of 1979 and 304 of 1979 which were admitted and ultimately were decided by common judgment and order dated 22nd January 1998. The same is challenged by the appellant by filing the present appeal.
4 Learned counsel for the appellant, Mr Naik contended that the learned Single Judge has committed an error in reversing the finding of the trial Court that lis pendens will apply in case of property situated within Saurashtra since 1938 will apply forcibly even in the present case.
5 The appellant has preferred Special Civil Suit No.87 of 2001 and has prayed for only declaration that compromise which has been entered into between the parties in Regular Civil Suit No.31 of 1966 is entered into only to meet with the sale deed, which was executed in favour of the plaintiff on 20th December 1967 and therefore the preliminary decree drawn on 20.12.1867 and final decree drawn on 18.4.1970 are not binding on the present appellant. The prayers which are made in Special Civil Suit No.87 of 2001 read as under:
"7(A) Your Honour may be pleased to hold and declare that the deed of agreement dated 20.12.1967 entered into by the parties of Special Suit No.31 of 1966 in collusion with each other and the preliminary decree dated 18.4.1970 passed on the basis thereof and the final decree as well as rojkam drawn on 18.12.1970 are illegal and the same do not affect the rights of the plaintiffs over the suit property and the same are not binding upon the plaintiff.Page 7 of 14
C/LPA/249/1998 JUDGMENT
(B) Your Honour further be pleased to hold and declare that the
sale deed dated 6.8.1970 executed by defendant No.1 in favour of defendants Nos.2 and 3 is illegal and is not binding upon the the plaintiffs and is liable to be set aside and further that defendants Nos.2 and 3 do not derive any legal and valid rights on the basis of the aforesaid sale deed over the suit land;
(C) Your Honour may be pleased to grant a permanent injunction permanently injuncting defendants Nos.2 and 3 from causing interference or hindrance in the possession of the plaintiffs over the suit land bearing Survey No.1271 paiki admeasuring 4 acres;
(D) In the alternative, if, for any technical reason on the basis of so called rojkam dated 18.12.1970 the suit land is said to have been vested into defendant Nos.2 and 3, Your Honour may be pleased to hold and declare that they are not entitled to have the possession rights over the suit land against the interests of the plaintiff and also to direct defendants Nos.2 and 3 to hand over the peaceful and physical possession of the suit land to the plaintiff"
Thus, looking to the above prayers, it clearly appears that they have not prayed for any reliefs against the person who has sold the property.
6 While considering the grievances of both the sides, the learned Single Judge has observed as under in paragraphs Nos.4, 5 and 6:
"Mr. D.D.Vyas, the learned Advocate appearing for the appellants has submitted that the learned trial Judge has erred in holding that the Page 8 of 14 C/LPA/249/1998 JUDGMENT compromise decree was a collusive decree. He has submitted that, Bai Kantaben Rugnath had purchased 4 acres out of the suit land from the undivided share of Bai Murjana and Abdulla Abu, on 30th June, 1967, i.e. pending the Suit 31 of 1966. He has, therefore, submitted that the rule of 'lis pendens' would apply and the decree passed in Suit of 1966 would be equally binding to Bai Kantaben Rugnath as well. He has further submitted that the learned trial Judge has erred in holding that the rule of 'lis pendens' would not apply in the instant case. He has submitted that the learned trial Judge has relied upon an amendment made to Section 52 of the Transfer of Property Act, 1882 by the Government of Bombay in the year 1939. He has submitted that the said amendment applied to the areas which were included in the then province of Bombay. The land situated within the erstwhile State of Junagadh cannot be governed by the said amendment. He has further submitted that the appellants had purchased the undivided share of Bai Nathi, admeasuring 8 acres 12 gunthas in the suit land. While Bai Kantaben Rugnath had purchased undivided share of Bai Murjana and Abdulla Abu, admeasuring 4 acres, in the suit land, there possibly cannot be a conflict of interest amongst the appellants and Bai Kantaben Rugnath. In the event there were any objection against the appellants' taking over possession of the share of Bai Nathi in the suit land, the same were required to be raised in the execution proceedings. In view of Section 47 of the Code of Civil Procedure, any suit raising such objection would not be maintainable. The learned trial Judge, therefore, ought to have dismissed the Special Civil Suit No. 87 of 1971. In support of his contentions, Mr. Vyas has relied upon the judgments of the Bombay High Court in the matter of NARAYAN LAXMAN AYARKAR AND ORS. v VISHNU WAMAN DHAWALE AND ANR., (AIR 1957 BOMBAY 117) and in the matter of DIGAMBARRAO HANMANTRAO DESHPANDE v. RANGRAO BAGHUNATHRAO DESAI AND ANR., (AIR 1949 Bombay 367). He Page 9 of 14 C/LPA/249/1998 JUDGMENT has also relied upon two Supreme Court judgments in the matter of NAGUBHAI AMMAL AND ORS., v. B.SHAMA RAO AND ORS., (AIR 1956 S.C. 593) and in the matter of KHEMCHAND SHANKAR CHOUDHARY AND ANR. v. VISHNU HARI PATIL AND ORS., (AIR 1983 S.C. 124).
"5 Mr.J.R.Nanavati, the learned Advocate has appeared for Bai Kantaben Rugnath and has contested the appeals. He has supported the judgment of the learned trial Judge. He has submitted that as such, Bai Nathi was not entitled to a share in the suit land. However, even if it were held that Bai Nathi was entitled to a share in the suit land, undisputably under the compromise decree she has been given a share much larger than what she would have been entitled to under the law. The presumption, therefore, should be that the suit of 1966 was a collusive one and the compromise decree has, therefore, rightly been set aside by the learned trial Judge. He has also referred to the amendment made under the then Bombay Government under Section 52 of the Transfer of Property Act and has submitted that, in view of the said amendment, the rule of lis pendens would not apply to the suit land. Both the learned Advocates have relied upon the commentary on lis pendens from the Transfer of Property Act by Mulla, 8th Edition.
"6 In the matter of Narayan Laxman Ayarkar (supra), the learned Judges of the Bombay High Court have discussed the principle of lis pendens in paragraph 6 of the judgment. The learned Judges have held that: "Section 52 of the Transfer of Property Act makes transfers during the pendency of any suit or proceeding, which is not collusive of any right of immoveable property which is directly and specifically in question, ineffective as against the person who may ultimately be declared entitled thereto, except where the transfer has been effected under the authority Page 10 of 14 C/LPA/249/1998 JUDGMENT of the Court." In the matter of Digambarrao Hanmantrao Deshpande (supra), the Court has examined the principle of lis pendens. In paragraph 12 of the judgment the Court has held that: "lis pendens is an action pending and the doctrine of lis pendens is that an alienee pendente lite is bound by the result of the litigation." The Court has further held in paragraph 13 that: "It is also settled law that in the absence of fraud or collusion the doctrine of lis pendens applies to a suit which is decided ex parte or by compromise. If the compromise has not been fairly and honestly obtained, the suit which ended in a compromise will not operate as lis pendens. This is the doctrine of lis pendens." In the matter of Nagubai Ammal (supra), the Supreme Court has explained the difference between a collusive proceeding and a fraudulent proceeding. The Court has held as under:
"There is a fundamental distinction between a proceeding, which is collusive and one which is fradulent. Collusion in judicial proceeding is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. (Wharton's Law Lexicon, 14th Edn., p.
212). In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties.
But when a proceeding is alleged to be fradulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the Court in his favour and against his opponent by practising fraud on the court. Such a proceeding is started with a view to injure the Page 11 of 14 C/LPA/249/1998 JUDGMENT opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest."
In the matter of Khemchand Shankar Chaudhary (supra), in paragraph 6 of the judgment, the Court has held that: "A transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Civil Procedure Code clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. "
The learned Single Judge having considered the evidence on record has observed in paragraph 8 as under:
"8. It is undisputed that Bai Kantaben Rugnath purchased 4 acres of land from the undivided share of Bai Murjana and Abdulla Abu in the suit land pending the suit of 1966. In my view, the decree passed, be it a compromise decree, in the suit is binding to Bai Kantaben Rugnath as much as it should bind the transferors Bai Murjana and Abdulla Abu. The question is, therefore, whether the said compromise decree was obtained by collusion as averred by Mr. Nanavati. The learned trial Judge has solely relied upon the fact that Bai Nathi was otherwise not entitled to any share in the suit land or if at all she was entitled to any share, it could not have been more than 5 acres of the suit land. I am afraid, I cannot accept the view Page 12 of 14 C/LPA/249/1998 JUDGMENT expressed by the learned trial Judge. Merely because a compromise is more favourable to one of the parties, the same cannot be said to be obtained by collusion. For a proceeding being collusive, what is required is, there must be a premeditation and the proceeding should have been initiated with an intention to cause injury to a third party who is not a party to the proceeding. In the present case, the suit of 1966 was instituted by Bai Murjana, Bai Nathi and Hirbai against Abdulla Abu. Bai Kantaben was not connected in any manner with the said suit. Besides, the undivided share admeasuring 4 acres was sold by Bai Murjana and Abdulla Abu to Bai Kantaben Rugnath pending the suit. Bai Nathi was nowhere concerned with the said sale. Therefore, it cannot be held that the suit was instituted with a view to causing injury to Bai Kantaben Rugnath. It, therefore, cannot be said that the suit was collusive nor can it be said to be fraudulent. No fraud has been perpetrated by either of the parties upon any one of the parties to the proceeding or upon the Court in getting the compromise decree passed. I am, therefore, of the view that the suit of 1966 can neither be said to be collusive nor fradulent. The compromise decree passed therein, therefore, could not have been quashed and set aside as has been done by the learned trial Judge. Upon perusal of the amendment to Section 52 of the Transfer of Property Act, 1882, brought in by the Bombay Act No.4 of 1939, it is apparent that the said amendment applied to the areas governed by the then Government of Bombay. The suit land being situated in the State of Junagadh could not have been governed by the said amendment. The learned trial Judge, therefore, is not right in holding that the principle of rule of lis pendens would not apply in respect of the suit land. In view of the above view taken by me, I need not answer whether the Special Civil Suit No. 87 of 1971 instituted by Bai Kantaben Rugnath was maintainable or was barred by Section 47 of the Code of Civil Procedure.Page 13 of 14
C/LPA/249/1998 JUDGMENT
First Appeal No. 304 of 1979, therefore, succeeds. The
appeal is allowed. The judgment and decree passed in Special Civil
Suit No.87 of 1971 by the learned Joint Civil Judge, Senior Division, Junagadh, is quashed and set aside. Special Civil Suit No. 87 of 1971 is dismissed.
In view of the dismissal of Special Civil Suit No. 87 of 1971, First Appeal No. 303 of 1979 does not survive and is accordingly disposed of. There shall be no order as to costs."
Considering the evidence on record, we are in complete agreement with the learned Single Judge as the agreement was entered into with a view to resolve the family dispute. The order passed by the learned Single Judge is just and proper. No interference is called for. The appeal has no merits and the same is dismissed accordingly.
Office is directed to return back the record and proceedings to the trial court forthwith.
Sd/ (K.S.JHAVERI, J.) Sd/ (A.G.URAIZEE,J) mohd Page 14 of 14