Punjab-Haryana High Court
Rajender And Another vs Brahmchari And Others on 21 September, 2011
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
C.R. No. 3453 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.R. No. 3453 of 2010
Date of Decision: 21.9.2011
Rajender and another
....Petitioners.
Versus
Brahmchari and others
...Respondents.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
PRESENT: Mr. Harkesh Manuja, Advocate for the petitioners.
Mr. Shailendra Jain, Advocate for respondent No.1.
AJAY KUMAR MITTAL, J.
1. The prayer of the petitioner-defendants No.5 and 6 in this petition filed under Article 227 of the Constitution of India is for setting aside the order dated 8.3.2010 passed by the Additional District Judge, Sonepat whereby an application filed by them for recasting of issue No.7 from "whether defendant No.4 is a bonafide purchaser for a valuable consideration and protected by the provisions of the Transfer of property Act? OPD" to "Issue No.7: Whether defendants No.4 to 6 are bonafide purchasers for a valuable consideration and protected by provisions of the Transfer of Property Act? OPD" was declined.
2. Put shortly, the facts necessary for adjudication of the present petition are that respondent No.1 filed a suit for specific performance of agreement to sell dated 30.6.1999 regarding 28 kanals of land situated within the revenue estate of village Bhuri, Tehsil C.R. No. 3453 of 2010 -2- Ganaur, District Sonepat in favour of respondent No.2. Respondent No.2 sold 5 kanals of land to the petitioners vide registered sale deed dated 24.8.2001 and as such, the petitioners had been impleaded as defendants in the suit. Upon notice having been issued in the suit, the petitioners-defendants No.5 and 6 filed their joint written statement. The trial court vide judgment and decree dated 1.8.2006 decreed the suit in favour of respondent No.1. Feeling aggrieved, the petitioners have filed an appeal before the lower appellate court against the judgment and decree dated 1.8.2006. During the pendency of the appeal, respondent No.1 had moved an application for amendment of plaint so as to include the relief of possession. The said application was allowed by the trial court and the said order was upheld by this Court vide order dated 29.4.2009 passed in Civil Revision No. 6563 of 2007. The petitioners filed their amended written statement before the appellate court incorporating the plea of bonafide purchasers from respondent No.2. Thereafter, the petitioners and Krishan Chand- respondent No.4 jointly moved an application for recasting of issue No.7 as mentioned in para 1 of the petition. Notice of the application was issued to respondent No.1 who filed reply to the same. The trial court vide order dated 8.3.2010 rejected the said application. Hence, the present petition.
3. I have heard learned counsel for the parties.
4. Learned counsel for the petitioners submitted that the earlier issue was with regard to defendant No.4 alone being bonafide purchaser whereas an application had been filed wherein it was averred that in the written statement defendants No.5 and 6 have also claimed C.R. No. 3453 of 2010 -3- themselves to be bonafide purchasers for a valuable consideration and on the basis of pleadings of the parties, the court was duty bound to recast issue No.7 as claimed. He referred to following pleadings in para 5 of the amended written statement (Annexure P-1):-
"5. That para No.5 of the plaint is admitted to this extent that the defendant no.4 purchased agricultural land measuring 8K-0M vide registered sale deed dated 21.06.2001 for a valuable sale consideration and in good faith after verifying the revenue records and thus the defendant no.4 is a bonafide purchaser and the defendants no.5 and 6 purchased agriculture land measuring 5K-0M vide registered sale deed dated 24.08.2001 for a valuable sale consideration and in good faith after verifying the revenue records and thus the defendants no.5 and 6 are bonafide purchasers and the defendants have no knowledge regarding the alleged agreement to sell. The defendants No.4 to 6 are bonafide purchasers and they purchased the agricultural land as mentioned in this para after paying the valuable consideration to the defendant no.1. Rest of the para as stated is quite wrong, false, hence denied."
5. Learned counsel for the petitioners relied upon the judgments reported in Vishwanatha Achari v. Kanakasabapathy 2005 (3) RCR (Civil) 422 (SC), Smt. Geeta Chopra @ Sangita v. Madan Lal and others, 2006(2) RCR (Civil) 762 and K.N. Palaniswamy C.R. No. 3453 of 2010 -4- Gounder v. P. Subramanian 2005(2) RCR (Civil) 224 (Madras) in support of his contention.
6. Opposing the prayer made by the petitioners, learned counsel for respondent No.1 submitted that the trial court while adjudicating the aforesaid issue No.7 in para 12 of its judgment had recorded that defendants No.4 and 5 are not bonafide purchasers. Learned counsel drew the attention of the Court to the following findings of the trial court:-
"The ld. counsel for defendants No.5 and 4 has stated that defendants No.5 & 4 are the bonafide purchasers and, therefore, their interest is liable to be protected. He also pointed out the statements of DW.1 and DW.4 who have stated that the defendants are the bonafide purchasers of the suit property. Apart from this, he has also highlighted the mutation Ex.D1, but on having perused the aforesaid evidence, I find no force in the submissions of the ld. counsel for defendants No.5 & 4 because plea of bonafide purchaser could not be proved on record, through cogent evidence by the contesting defendants. Defendant No.5 Rajender while appearing as DW.2 during his cross-examination has stated that he did not make any inquiry from Numberdars of the village or the Deed Writers of Tehsil Ganaur with regard to execution of any agreement to sell by Munshi in favour of the plaintiff C.R. No. 3453 of 2010 -5- regarding the suit property. DW.4 Rameshwar Dass also stated that they did not make any inquiry about the transaction of Munshi before the mortgage deed was executed by him. On making careful study of the statements of the aforesaid material witnesses, I have come to the view that due proper care and caution had not been taken by the defendants while executing certain documents in their favour from defendant Munshi. Therefore, they cannot be treated as bonafide purchasers as submitted by the ld.
counsel Sh. R.K. Pahal. Hence, I reject his
submissions.
7. On the basis of the aforesaid finding, it was further contended that the fact of defendants No. 5 and 6 being bonafide purchasers was impliedly embedded in issue No.7 as they had filed joint written statement claiming to be bonafide purchasers on the basis of sale deed dated 21.6.2001 in favour of defendant No.4 and sale deed dated 24.8.2001 in favour of defendants No.5 and 6. Now an application has been filed by defendants No.5 and 6 which was in connivance with the remaining defendants as the same has been filed to linger on the proceedings and also to seek permission for leading additional evidence after recasting of the issue.
8. After giving thoughtful consideration to the respective submissions of learned counsel for the parties, I do not find any merit in the contention raised by the learned counsel for the petitioners. Ordinarily, the courts are duty bound to frame the issues that may arise C.R. No. 3453 of 2010 -6- on the basis of the pleadings of the parties. However, in the present case, the trial court had framed issue No.7 relating to defendant No.4 being bonafide purchaser or not but while adjudicating the said issue had also decided the question whether defendants No.4 and 5 were bonafide purchasers or not. A fact requires to be noticed that joint single amended written statement has been filed by defendants No.4 to 6 (Annexure P-1) claiming themselves to be bonafide purchasers for consideration as per averments made in para 5 thereof. The trial court had adjudicated issue No.7 by considering the claim of defendants No.4 and 5 being bonafide purchasers and rejected the same. In such circumstances, it clearly shows that this is only a device to delay the proceedings. Moreover, as discernible from evidence, the petitioners have already led evidence in respect of their claim of being bonafide purchasers for consideration. In view of the above discussion and as per stand taken by the plaintiff-respondent No.1 in reply to the application for recasting of issue No.7, the claim of the petitioners being bonafide purchasers or not is inbuilt in issue No.7 as framed by the trial court. The appellate court while declining the prayer of the petitioners for recasting of issue No.7 had noticed as under:-
"8. The stand taken by LR of Munshi Ram i.e. defendant No.1 that a issue be framed "Whether the plaintiff obtained the signatures of defendant Munshi Ram on blank papers for security of repayment of loan" is already impliedly taken by their predecessor in his written statement and this Issue is adjudicated by the trial court in para No.10 and 11 of the C.R. No. 3453 of 2010 -7- judgment dated 1.8.2006. The plea taken by the appellant/defendants No.4 to 6 i.e. Krishan etc. that they are bonafide purchasers and for recasting of Issue No.7 is also devoid of merits as Issue No.7 is already framed by the trial court and defendants have led evidence in support of their plea and learned trial court also gave its findings on this Issue in para No.12 of the judgment dated 1.8.2006. So, it seems that these applications have been filed only to linger on the proceedings of the court.
9. Thus, keeping in view of my above discussions, both the applications have no merits and the same are hereby dismissed."
9. In such a situation, the appellate court had rightly declined the prayer of the petitioners.
10. Adverting to the judgments on which reliance has been placed by the learned counsel for the petitioners, the legal proposition enunciated therein is well recognized, however, in the present factual situation involved herein, they do not advance the case of the petitioners.
11. Needless to say that the appellate court while adjudicating issue No.7 shall be required to record findings with regard to claim of the petitioners being bonafide purchasers or not, if so argued before it. Accordingly, there is no merit in this revision petition and the same is hereby dismissed.
September 21, 2011 (AJAY KUMAR MITTAL) gbs JUDGE