Rajasthan High Court - Jodhpur
S.B. Civil Writ Petition No.417/1996 vs Smt. Jatan Bai & Ors on 4 May, 2015
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER :
S.B. CIVIL WRIT PETITION NO.417/1996
Smt. Sohan Bai & Ors.
V/s
Smt. Jatan Bai & Ors.
Date of Order :: 4.5.2015
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Chaitanya Gehlot, for the petitioner/s.
Mr. Sandeep Shah ) for the respondent/s.
Mr. Sandeep Saruparia)
-----
BY THE COURT:
This writ petition is directed against the judgment of the Board of Revenue ('Board') dated 11.1.1996, whereby on reference made to the 3rd member on account of disagreement between two members vide order dated 20.11.1993, the appeal filed by the petitioners against the judgment dated 18.5.1985 passed by the Revenue Appellate Authority ('RAA') has been dismissed.
The present litigation has a chequered history, the dispute pertains to land comprised in Khasara No.767 (New No.1351) situated at Village Nathdwara which stood in khatedari of one Fateh Lal S/o Ekling Das; Lehar Bai W/o Fateh Lal lived separately with her son Manohar Lal since 1958; it is claimed that on 26.12.1958, Fateh Lal executed a document (Tehrir) giving land in dispute to Lehar Bai for her maintenance; on 10.8.1959, Fateh Lal filed a suit under Section 180 of the 2 Rajasthan Tenancy Act, 1955 ('the Act') against his son Manohar Lal & Radha Kishan, Liladhar and one Smt. Chunni Bai W/o Radha Kishan in the Court of SDO, Udaipur on the allegation that he was the owner of the land in dispute and the defendants were interfering with his cultivation; the defendants resisted the suit inter-alia on the ground that the land in dispute was given to Smt. Lehar Bai in the year 1958 and defendants were cultivating the land on her behalf; on 25.10.1960, the trial court dismissed the suit filed by Fateh Lal, though Lehar Bai was not a party to the suit, although an application seeking her impleadment was filed and was pending.
Feeling aggrieved, Fateh Lal filed appeal; the RAA by its judgment dated 6.2.1962 allowed the appeal and remanded the matter back after impleading Lehar Bai as party; the order dated 6.2.1962 was upheld by the Board by its judgment dated 14.9.1962.
The suit filed by Fateh Lal was decreed by the SDO, Udaipur on 29.4.1967 and the appeal filed by Lehar Bai and Manohar Lal was dismissed by RAA by its judgment dated 24.5.1967. The Board, however, set-aside the judgments of SDO, Udaipur and RAA and remanded the matter back to the SDO by its judgment dated 3.1.1968 directing that a fresh judgment be delivered after hearing the parties as the judgments of both the courts below contained serious errors of law and facts. It may be noticed that during the proceedings before various courts, the land in dispute remained in the possession of receiver.
In the meanwhile, on 24.6.1967, Fateh Lal transferred the 3 land in dispute to Sohan Lal S/o Magan Lal. The said Sohan Lal filed application for being impleaded as party to the suit on 21.8.1969 and 18.11.1969; during the pendency of the suit on 22.1.1970, Fateh Lal - plaintiff filed an application praying for decreeing the suit in favour of Lehar Bai and prayed that possession be handed-over to her by removing the receiver and the income received by the receiver be delivered to Lehar Bai and prayed that qua the other defendants he was withdrawing the suit. The SDO, Udaipur by its Order dated 29.1.1970 ordered for decree of the suit based on the compromise which was based on written statement dated 7.1.1964 and passed the decree accordingly.
The purchaser from Fateh Lal, Sohan Lal filed a suit under Sections 88 & 183 of the Act for declaration and ejectment pertaining to the suit property against Fateh Lal and Lehar Bai based on the sale deed dated 24.6.1967. Fateh Lal and Lehar Bai filed their written statement and denied the contents of the suit; Lehar Bai also indicated that Sohan Lal had already filed a Civil Suit No.42/67 against Manohar Lal.
The SDO, Rajsamand framed 10 issues and after evidence was led by the parties, came to the conclusion that the suit property was purchased by Sohan Lal from Fateh Lal vide registered sale deed dated 24.6.1967; regarding the plea raised by the defendants based on document (Tehrir) dated 26.12.1958, it was held that it was not proved that the land in question was given by Fateh Lal to Lehar Bai for maintenance on 26.12.1958, the execution of the document was not proved and the licence, if any, in favour of Lehar Bai ceased with the transfer 4 of the property; Fateh Lal, Lehar Bai were in collusion, the decree by way of compromise was obtained fraudulently as the land had already been transferred by Fateh Lal and he had no right, which decree was nullity and the plaintiff was not bound by the same; a decree obtained by collusion cannot form basis for application of the principles of lis pendens, Lehar Bai was trespasser. Issue No.9 pertained to jurisdiction of Revenue Court and it was noticed by the SDO that no arguments on the said issue were advanced and no reasons have been indicated pertaining to the said issue and decided the issue against the defendants and finally decreed the suit ordering for declaration of plaintiff-Sohan Lal as khatedar and ordering for handing-over of possession.
The judgment and decree passed by the SDO was appealed against by legal representatives of Fateh Lal and Lehar Bai. The RAA by its judgment dated 18.5.1985 dismissed the appeal. Against which, second appeal was filed before the Board, after hearing the appeal, the members of the Board disagreed, while member Shri C.K. Methew dismissed the second appeal, member Shri B.B. Mohanti came to the conclusion that the Revenue Court had no jurisdiction to set-aside the decree passed by the Assistant Collector on 29.1.1970 and as such, the suit filed by Sohan Lal was not triable by the Revenue Court and ordered for accepting the appeal. As such, the matter went before the 3rd member, the 3rd member after hearing the parties by judgment dated 11.1.1996, upheld the judgments and decree passed by the SDO and RAA and came to the conclusion that the suit was not governed by the principles of lis pendens. The Revenue 5 Courts have jurisdiction to hear the matter and consequently dismissed the second appeal by its judgment dated 11.1.1996.
Learned counsel for the petitioners while making submissions confined the challenge to the issues pertaining to the jurisdiction of the Revenue Court and that the transfer dated 24.6.1967 made by Fateh Lal in favour of Sohan Lal would be governed by the principles of lis pendens. It was submitted by learned counsel for the petitioners that the suit as framed was for declaration and ejectment of petitioners' predecessors in interest but a prayer was also made in the plaint that the decree dated 29.1.1970 be declared as void and ineffective as the same was obtained by fraud, there is no provision in the III Schedule to the Act for trial of a suit for cancellation of decree obtained by fraud. Merely because the courts, though incorrectly, reached a conclusion that the compromise decree dated 29.1.1970 was obtained fraudulently; the compromise was beyond the subject matter of the suit and the same was not for declaration, cannot confer the jurisdiction on the Revenue Court to try the suit. It was further submitted that the sale made by Fateh Lal on 26.4.1967 was hit by provisions of Section 52 of the Transfer of Property Act, 1882 ('T.P. Act'), though despite filing of the application by Sohan Lal, he was not impleaded as party, however, the compromise decree was fully binding on him as the sale took place during the pendency of the suit.
It is further submitted by learned counsel for the petitioners that the suit was not even for possession and as in the sale deed dated 24.6.1967, it was indicated that the possession of the suit property has been handed-over to the 6 transferee; the suit, in-fact, was for repossession which could only be filed before the civil court and not before the Revenue Court and on that count also, the judgment impugned cannot be sustained and the same deserves to be set-aside.
Reliance was placed on Nawal Kishore & Ors. v. Madho Prashad : 2013(2) WLN 190 (Raj.); Sunita Jugal Kishore Gilda v. Raman Lal Udhoji Tanna (dead) through LRs & Ors. : (2013) 10 SCC 258 and Thomson Press (India) Ltd. v. Nanak Builders & Investors Pvt. Ltd. & Ors. : (2013) 5 SCC 397.
Vehemently opposing the submissions, learned counsel for the respondents submitted that the concurrent findings of fact recorded by three courts below does not call for any interference by this Court under its extra-ordinary jurisdiction. It was submitted that the compromise decree has been obtained behind the back of the answering respondent and the answering respondent-plaintiff had purchased the land by registered sale deed much earlier from the date of compromise; Section 52 of the T.P. Act was not applicable and the suit before the Revenue Courts was very much maintainable. It was submitted that there was no valid decree passed by the Revenue Court, which was required to be set-aside. The prayer made in the suit was that the decree which was void ab initio is ineffective, as the same was much beyond the subject matter of the suit. As the suit was only for permanent injunction and not for declaration and Lehar Bai had not filed any counter claim for declaration of her rights which could be compromised. It was further submitted that in the suit filed by Fateh Lal, his right, title and interest in the property was neither directly nor specifically in question and 7 therefore, Section 52 had no application. It was submitted that in a suit filed by Fateh Lal seeking injunction once the property was transferred by him, the purchaser had two options either to get impleaded as party under Order XXII, Rule 10 CPC in place of vendor or get impleaded as party to the suit as defendant, the answering respondent filed application for being impleaded as party, on which, date was fixed by the SDO, however, the date of the suit was preponed and without informing the answering respondent, the compromise decree was passed which on face of it is collusive having entered into by a person who had no substantive right in the property. The suit could not be decided at the back of the answering respondent.
It was submitted that the suit was well within the jurisdiction of the Revenue Courts and transfer in favour of the answering respondents was not affected by principles of lis pendens.
Reliance was placed on Jaswant Singh v. The Board of Revenue for Rajasthan : 1984 RLW 7; Rukmani v. Bhola & Ors. :
2012(4) RLW 3050 (Raj.); Vijay Singh & Anr. v. Buddha & Ors. :
2012(4) RLW 2932 (Raj.); Jagan Singh v. Chotey Lal : 1973 RLW 674; Jagan Singh v. State Transport Appellate Tribunal, Rajasthan & Anr. : AIR 1980 Raj. 1.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
It would be noticed that the respondents filed the present suit for declaration and possession. Para 3, 4 and the relief claimed in the plaint reads as under:-8
"३- यह क व द न उक आर ज नम र ७६७ मय हहस चह
रपय २८००) म त र ख २४-६-६७ $ पहतव द &खय १ खर द ।
४- यह क ह ह$ ज न द पहतव द ख& य १ $ ह गय
क वह उक आर ज पर व सतहव बज व द र व क नत-
पहतव द &खय १ न व द बज नह. र य ।
२३- अत: प र1न ह2 क :-
( ) हवव दगसत आर ज नम र ७६७ म-न4ज लम न&० २ पर
बज व द र य ज व।
(ख) हसतह र र ह इ अमर जर क य जवक वद
उक आर ज ख तद र सत र ह2।
(ग) हम फ ल 8 ह9क8 ज$ पहतव द & २ न पहतव द
&० १ हवरद प प 8 ह2 उ वद म- ल
म पभ वह न ह2।
(घ) खच 1 म- दम कदल य ज व।
(9) कदगर द द ज$ उहचत ह$, कदल ई ज य।"
The plaintiff-Sohan Lal claimed that he purchased the land comprised in Khasara No.767 alongwith share in the well on 24.6.1967 from defendant No.1. It was further claimed that after sale defendant No.1 was told to handover actual possession of the land, however, the defendant No.1 did not handover the actual possession. In the relief, respondent-Sohan Lal claimed that possession of the suit property be handed-over, a declaration be given that the plaintiff was tenant of the land and the decree obtained by defendant No.2 Lehar Bai against defendant No.1 Fateh Lal be declared as ineffective against the plaintiff.
It would also be relevant to notice the undisputed facts regarding the suit filed by Fateh Lal against Manohar Lal and others wherein Lehar Bai was subsequently impleaded as party defendant No.5. In the said suit, the plaintiff - Fateh Lal filed a suit for permanent injunction under Section 188 of the Act, wherein it was inter-alia claimed as under:-
"(3) यह क आर ज म-तज र दर म पहतव द गण ह
व सत क क सम नह. ह$त हव भ व द सव हमतव व बज
-द आर ज पर ह ल ज र बज रन व सत उक आर ज 8
फ ल 8 ख-द ई हनद ई हल ई रन $ नह. ज न दन हलय मरन
म रन पर उत र ह$ रह हC तर भय कदखल रह ह2।
9
(4) यह क व द अपन सव हमतव व बज द - आर ज 8 फ ल
8 ख-द ई हनद ई रन गय त$ पहतव द गण ह न ज न म र नह.
छ$9ग।
प र1न व द यह ह2 क :-
( ) वद ह म पहतव द गण हखल फ सर ई हनषध ज 8
ह9क8 फरम ई ज व क पहतव द गण य उन ररशतद र व
नJ र व हमददK ववह र उललहखत भ-हम पर न $ई ज य न
$ई दसतनद ज र।
(ख) खच 1 म- दम व द द भ कदल ई ज व ज$ व द न-नन प
त ह$।"
Whereafter, the chequered history has already been noticed herein-before whereby the suit was initially dismissed, was remanded back by RAA, SDO decreed the suit, the RAA dismissed the appeal, however, the Board remanded the matter back to the SDO.
During the pendency of the proceedings before the SDO pursuant to the second remand order, on 24.6.1967 Fateh Lal vide registered sale deed transferred the suit property to Sohan Lal. Whereafter Sohan Lal filed application under Order XXII, Rule 10 CPC on 18.11.1969 (Ex.-P.2) for impleadment as party. The matter was fixed before the SDO on 12.1.1970, whereafter the matter was transferred to the Court of SDO, Udaipur, when it was ordered that parties be informed and 26.2.1970 was fixed as the next date, however, on 22.1.1970 Fateh Lal filed application before the Court indicating that the suit has been compromised between the parties and in terms of the compromise, decree in favour of the defendant No.5 be passed. The application was ordered to be taken on record and the matter was fixed for 29.1.1970 after issuing notice to defendant No.5 Lehar Bai and on 29.1.1970, the decree based on compromise was passed providing for Lehar Bai to remain in possession and handing over of the possession by the receiver to 10 her alongwith the income during the period the property remained in possession of the receiver and the suit qua rest of the defendants was withdrawn.
The above sequence of events, the frame of the suit, the compromise and the decree clearly indicates that Fateh Lal had filed a suit seeking injunction against Lehar Bai and others, transferred the property on 24.6.1967 to Sohan Lal; Sohan Lal filed application under Order XXII, Rule 10 CPC for being impleaded as party, which he was entitled to on account of transfer, whereafter Fateh Lal filed application inter-alia indicating that the matter has been compromised, Lehar Bai can remain in possession and the income of the land derived by the receiver during the pendency of the suit be handed-over to her without even informing the purchaser Sohan Lal, whose application was pending consideration by getting the date fixed before the court preponed i.e. at the back of the applicant and the transferee from Fateh Lal.
It would also be interesting to notice that the suit filed by Fateh Lal was a simple suit for injunction, there was no counter claim by Lehar Bai claiming declaration regarding ownership of the suit property and at the relevant time, the provisions of Order XXIII, Rule 3 CPC read as under:-
"ORDER XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS
3. Compromise of suit. Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith :"
However, subsequently, by way of amending Act of 1976, the provisions of Order XXIII, Rule 3 CPC were amended, which 11 now reads as under :-
"ORDER XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS
3. Compromise of suit. Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit :
Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.
Explanation.- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of this rule."
It would be noticed that when the compromise was entered into between the parties and the decree was passed in the year 1970 based on the compromise, the provision of Order XXIII, Rule 3 CPC provided for agreement, compromise or satisfaction qua whole or any part of the subject matter of the suit only, whereas by subsequent amendment, a compromise can be entered into even for aspects which are not being subject matter of the suit.
Admittedly, the subject matter of the suit as filed by Fateh Lal was only injunction, neither he sought any declaration nor Lehar Bai by way of counter claim sought any declaration and therefore, the compromise whereby it is claimed by the parties that the same amounts to conferring title on Lehar Bai, could not have been passed and the same cannot be sustained and therefore, in those circumstances the plea / relief claimed by Sohan Lal in the suit seeking declaration that the decree dated 12 29.1.1970 was ineffective against him, could very well be granted by the Revenue Court.
In those circumstances, it also cannot be said that plaintiff
- Sohan Lal claimed relief for cancellation of the decree for compromise.
The plaintiff had sought possession of the suit property based on the sale executed by Fateh Lal in his favour and based on the circumstances indicated in the plaint sought that the defendants cannot deny possession to the plaintiff based on the decree dated 29.1.1970, which was ineffective qua him and therefore, the Revenue Courts were well within their jurisdiction to grant the relief as claimed by the plaintiff in the suit and it cannot be said that the suit before the Revenue Courts was barred as claimed by the petitioners herein.
Besides the above, it would be important to note that a specific issue No.9 was framed by the SDO regarding the jurisdiction of the Revenue Court to grant decree, however, before the SDO, the said issue was not pressed, inasmuch as, no submissions on the issue were made by the defendants. However, it appears that before the RAA and the Board the emphasis on the jurisdiction of the Revenue Court was given and both the RAA and Board concurrently held in favour of plaintiff- Sohan Lal.
Another objection raised by counsel for the petitioners regarding the fact that though a suit for possession is not maintainable, but as the plaintiff-Sohan Lal had in-fact claimed repossession on account of the fact that in the sale deed there was a mention of handing-over of the possession of the suit 13 property, the suit was not maintainable before the Revenue Court. There does not appear to be any legal support for such a contention raised by counsel for the petitioner.
A person, who might have lost his possession on account of any action of the defendants can always file a suit for possession before the Revenue Court and the distinction sought to be pointed out by learned counsel for the petitioners has apparently no warrant in law.
Besides the above, admittedly, the suit property was in possession of the receiver when the sale deed dated 24.6.1967 took place and the compromise also provided for handing-over of the possession by the receiver to Lehar Bai and therefore, it cannot be said that while executing the sale deed dated 24.6.1967, the possession was handed-over to Sohan Lal and therefore, the plea raised by learned counsel for the petitioners has no basis.
Reliance placed by learned counsel for the petitioners on the judgment in the case of Nawal Kishore (supra) has no application to the facts of the present case, inasmuch as, in view of the findings recorded herein-before that the suit for possession by ignoring the decree as ineffective could be maintained before the Revenue Court.
The judgment cited by learned counsel for the respondents in the case of Jaswant Singh (supra), this Court held that while considering jurisdiction of the Court one has to see the main relief and there may be number of ancillary reliefs, which may not be granted by the Revenue Court and on that count the suit cannot be thrown from the jurisdiction of the Revenue Court. 14
In the recent judgments in the case of Rukmani (supra) and Vijay Singh (supra), this Court held that once a declaration under Section 88 of the Act is granted, even seeking of cancellation of the sale deed is not necessary and the same would automatically be rendered void and ineffective and therefore, the jurisdiction would lie with the Revenue Court only.
In view of the above discussion, it cannot be said that the Revenue Court in the present case had no jurisdiction to deal with the subject matter of the suit and the submission made in this regard by learned counsel for the petitioners cannot be accepted.
Coming to the submissions made regarding applicability of the principles of lis pendens under Section 52 of the T.P. Act, the provisions of Section 52 of the Act reads as under:-
"Section 52. Transfer of property pending suit relating thereto.- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
The principle of lis pendens has been settled by various judgments of the Hon'ble Supreme Court and even in the judgments cited by learned counsel for the petitioners i.e. Sunita Jugal Kishore Gilda (supra) and Thomson Press (India) Ltd. 15 (supra), it has been laid down as under :-
"It is well settled that 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. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation."
For applicability of provisions of Section 52 of the T.P. Act what is necessary, is that the right to immovable property is directly and specifically in question and the same must affect the rights of any other party thereto under any decree or order which may be made therein. In the present case, if the transfer made by Fateh Lal on 24.6.1967 is examined in the context of the suit filed by Fateh Lal himself, it would be noticed that the right to the property in question as such was not in question in the said suit because plaintiff - Fateh Lal claimed that he was in possession of the suit property and sought injunction against his son Manohar Lal and others wherein Lehar Bai was subsequently impleaded from interfering in his possession. What was involved in the said suit was mere injunction as the plaintiff had not sought any declaration regarding the property.
Further even under the decree dated 29.1.1970 what at best could be provided was a simple withdrawal of suit by Fateh Lal as under the decree Lehar Bai has been left to remain in possession, the transfer by Fateh Lal does not affect the rights of Lehar Bai under the decree effect of which simply was Fateh Lal's withdrawal of the suit, which was always subject to his seeking possession of the suit property at any time and as the title of Fateh Lal was not at all in question in the suit as Fateh Lal filed a simple suit of injunction and there was no counter claim by any 16 of the defendants seeking declaration regarding the ownership of the suit property, it cannot be said that the transfer was hit by provisions of Section 52 of the T.P. Act.
Further passing of decree dated 29.1.1970 has on facts been found by all the authorities below as having been obtained fraudulently by getting the date of hearing before SDO preponed and despite pendency of application filed by Sohan Lal for impleadment as party, the decree was got passed without notice to him, which apparently was to present a fait accompli to him and on that count also, the principles of Section 52 of the T.P. Act would not apply.
No other point was pressed by the parties.
In view of above discussion, the concurrent judgments passed by three authorities below does not call for any interference. There is no substance in the writ petition, the same is, therefore, dismissed.
No order as to costs.
(ARUN BHANSALI), J.
rm/-