Punjab-Haryana High Court
Amir Bala And Anr. vs Swaran Singh And Ors. on 12 July, 2006
Equivalent citations: AIR2007P&H10, AIR 2007 PUNJAB AND HARYANA 10, 2007 (2) AJHAR (NOC) 390 (P&H), 2007 A I H C (NOC) 57 (P&H), (2007) 1 CIVILCOURTC 635, (2007) 1 LANDLR 55, (2007) 3 LANDLR 205, (2006) 4 RECCIVR 75, (2007) 2 ICC 379
ORDER Vinod K. Sharma, J.
1. The brief facts giving rise to the filing of the present revision petition are as follows:
Plaintiff Kala Singh had filed a suit for possession by way of specific performance of contract dated 24.2.1986 with respect to agricultural land measuring 66 kanals 15 marlas of land fully detailed in the plaint. Ram Ditta deceased father of defendant No. 1 and Mohan Lai defendant No. 2 who had died during the pendency of the suit represented by defendants Nos. 2(a) to 2(e) were owners of agricultural land measuring 66 kanals 15 marlas out of which land measuring 55 kanals 7 marlas was Banjar Qadim and land measuring 11 kanals 8 marlas was Nehri. The plaintiff was in possession of the suit land as tenant during the lifetime of Ram Ditta. It was the case of the plaintiff that in the year 1978, Ram Ditta deceased had entered into an agreement with the plaintiff to sell the suit land and thereafter he remained in possession of the suit land on the basis of said agreement to sell. After the death of Ram Ditta suit land was inherited by his son Pyare Lai and one Mohan Lai. During the pendency of the suit Mohan Lal son of Ram Ditta died and his legal representatives were brought on record as defendants No. 2 (a) to defendant 2(e). However, during the lifetime of Mohan Lal deceased defendant No. 1 i.e. Pyare Lal and Mohan Lal deceased executed an agreement to sell the suit land on 24.2.1981 for a sale consideration of Rs. 22,225/- Mohan Lai deceased admitted the receipt of Rs. 5200/- from the plaintiff by their father in his lifetime. Pyare Lal and Mohan Lal received a sum of Rs. 13,800/ vide bank draft No. PNT 925112 for Rs. 6900/ and bank draft No. PNT 925113 for Rs. 6900/-. The receipt was duly recorded in the agreement of sale and Banjar Qadim land was agreed to sell for Rs. 14000/- and Nehri land was agreed to be sold for Rs. 8225/-. Tie remaining amount of Rs. 13225/- was to be paid by the plaintiff to the vendor at the time of executing the sale deed. A Power of Attorney was executed by defendant No. 1 Pyare Lal as well as deceased Mohan Lal in favour of one Sukha Singh requiring him to execute the sale deed in favour of the plaintiff on behalf of defendant No. 1 as well as Mohan Lal deceased. However, subsequently, the same was cancelled by Pyare Lal and Mohan Lal with intimation to the Sub-Registrar, Panipat. On coming to know about the cancellation of Power of Attorney, a legal notice was served by the plaintiff on defendant No. 1 Pyare Lal and Mohan Lal deceased on 15.6.1981 calling upon them to execute the sale deed in favour of the plaintiff on payment of remaining consideration money. The plaintiff came to know that defendant No. 1 Mohan Lal deceased had sold the suit land on 5.6,1982 to Swaran Singh, Gurbachan Singh and Dara defendant Nos. 3 to 5 in the suit by way of registered sale deed. The case of the plaintiff was that as they were aware of the agreement of sale they were not bona fide purchasers and thus, the petitioner claimed that he was entitled to specific performance of the agreement on payment of remaining amount.
2-3. Defendants Nos. 1 and 2 Pyare Lal and Mohan Lal filed a joint written statement and contested the claim of the plaintiff. However, they denied the agreement to sell with their father and even tenancy of the plaintiff was denied. However, the tenancy of the plaintiff over the land measuring 11 kanals 9 marlas was admitted. It was the case of the respondents that the remaining land being Banjar Qadim was not cultivated, therefore, it was deemed to be in possession of the owners. It was asserted that defendants Nos. 3 to 5 were the owners over the land measuring 55 kanals 7 marlas. The execution of the agreement dated 24.2.1981 was also denied. The case of the defendants was that in fact they had entered into an agreement with defendant No. 2 vide agreement dated 27.2.1980 and possession was delivered to defendants Nos. 3 to 5 on its sale. It was the case of the defendants that registration of the sale deed was delayed for a period of one year due to attestation of the mutation. The defendants further claimed that the plaintiff had played a fraud with the answering defendants. It was the case of the defendants that the plaintiff had approached them at Jalandhar on the plea that he was sent by Tasbir Singh who was his close relative to inform that he has no intention to purchase the land and there was no objection if the land was sold to the plaintiff. The case of the defendants, therefore, was that believing the plaintiff, the answering defendants had executed Power of Attorney in favour of Sukhan and to execute the agreement of sale dated 24.2.1981 and received a sum of Rs. 13,800/- for the land measuring 66 kanals 15 marlas. The receipt of Rs. 5,200/- was denied. The defendants further claimed that an amount of Rs. 5,200/- was paid by them. The defendants further alleged that they had gone to village Urlana Khurd for getting the sale deed registered but the plaintiff being under the influence of liquor told them about the fraud played by him upon the answering defendants and brought to their notice that he had strained relation with Tasbir Singh and he wanted to deprive him from purchasing the suit land. It was on coming to know about the fraud that Power of Attorney was cancelled and sale deed was executed in favour of defendants Nos. 3 to 5 at the instance of Tasbir Singh. The defendants, however, admitted that the plaintiff was in possession of land measuring 11 kanals 8 marlas and that the defendants remained ready and willing to execute the sale deed regarding the above said land in favour of the plaintiff at the rate agreed. The claim of the Kala Singh plaintiff claiming land was denied. The defendants further alleged that they had received the amount of Rs. 19,000/- but the receipt of Rs. 5,200/- was denied. It was the claim of the defendants that they will adjust the amount of Rs. 19,000/- towards the sale consideration for the land measuring 11 kanals 8 marlas.
4. Defendants Nos. 3 to 5 had filed separate written statement and claimed that there was no contract with the plaintiff for the sale of the land measuring 55 kanals 7 marlas. The execution of the agreement dated 24.2.1981 was denied and they claimed to be bona fide purchaser.
5. On the pleadings of the parties the following issues were framed:
1. Whether the defendants 1 and 2 had entered into an agreement dated 24.2.1981 to sell the land in suit in favour of the plaintiff if so what were the terms of the said agreement? OPP
2. Whether the plaintiff has always been ready and willing to perform his part of contact? OPP
3. Whether defendants 3 to 5 are bona fide purchasers for consideration? OPD 3 to 5
4. Whether defendants 3 to 5 are in possession of the suit land? OPD
5. Whether the suit is bad for mis-joinder of parties and causes of action? OPD
6. Relief.
Issue No. 3 was subsequently amended to read as under:
3. Whether the defendants Nos. 3 to 5 are bona fide purchasers for consideration without notice? OPD 3 to 5.
The learned trial Court decided issue No. 1 in favour of the plaintiff, whereas issue No. 2 was also decided in favour of the plaintiff. Issue No. 3 was decided against the defendants and it was held that they were not bona fide purchasers. Issues Nos. 4 and 5 were also decided against the defendants and in view of the findings recorded above, the suit of the plaintiff for possession of land by specific performance was decreed with costs on payment of Rs. 322/- (remaining sale consideration). It was also ordered that the remaining sale consideration would be paid by the plaintiff to defendant Nos. 3 to 5 in equal shares. Defendant No. 3 was further directed to execute the sale deed.
6. It may be noticed here that on the death of Mohan Lai defendant No. 2, his legal representatives were brought on record including the present petitioners and they were duly represented by Surat Singh who was represented by Pyare Lal and Mohan Lal. However, he did not choose to file any reply on their behalf. No appeal was filed by the petitioners against the judgment and decree passed by the learned trial Court. However, defendants Nos. 3 to 5 filed an appeal against the judgment and decree passed by the learned trial Court. In the said appeal, an application was made on 24.3.1993 for the amendment of memo of appeal under Order 6, Rule 17 of the Code of Civil Procedure on the plea that respondents Nos. 2(d) and 2(e) i.e. the petitioners in the present revision petition were minors at the time of filing of the application for bringing them on record as the legal representatives of deceased Mohan Lal and they were wrongly shown as major. It was said that the petitioners were minors at the time of moving application under Order 6, Rule 17 of the Code. It. may be noticed here that on the date of moving application for amendment of memo or appeal the petitioners had already attained majority. On notice issued to the petitioners after amendment of memo of appeal they appeared in the Court and did not file either appeal or any cross-objection to challenge the judgment and decree but moved an application under Section 151 of the Code on the ground that they were minors on the date of institution of the suit as well as passing of the decree and therefore, the decree was in violation of the mandatory provisions of the Code. The said application was opposed by the plaintiff-respondent in the appeal primarily on the ground that interest of Pyare Lal and Mohan Lal being identical no prejudice was caused to the minors. The appellants in the appeal before the learned District Judge supported the application filed1 by the present petitioners.
7. The learned Lower Appellate Court found, as a matter of fact, that out of 66 kanals 16 marlas, Pyare Lal and Mohan Lal had transferred the major portion of land measuring 55 kanals 11 marlas to the appellants i.e. defendants Nos. 3 to 5 by way of registered sale deed dated 5.3.1981 and had handed over the possession of the same to them. Therefore, the present petitioners were left with no interest in the aforesaid land. Thus, the dispute regarding this major portion of land was between Kala Singh plaintiff and defendants Nos. 3 to 5 who were appellants before the learned Additional District Judge, Panipat. The learned lower Appellate Court further held that out of 11 kanals 8 marlas Pyare Lal had half share and the share of the minors came to 2/5th share in the land measuring 11 kanals 8 marlas and therefore, they had interest in a very small portion of the land. The non-compliance of Order 32. Rule 3 of the Code was admitted as Anju Bala and Neelam Rani were not sued through their guardian. The case of the petitioners, in the present case, is that the decree against the present petitioners was a nullity in view of the law laid down by the Division Bench of this Court in Shri Gurpreet Singh v. Shri Chatterbhuj Goel .
8. The learned Lower Appellate Court held that no prejudice has been caused to the present petitioners as Pyare Lai has consented the sale. By relying upon the observations made in para No. 6 of the judgment relied upon by the applicants the learned Lower Appellate Court rejected the application filed under Section 151 of the Code. Learned lower Appellate Court was of the opinion that no prejudice has been caused to the minors as they had no interest in the suit property. Even otherwise, according to the learned lower Appellate Court their interest was protected by Pyare Lal who was co-defendant with them.
9. Mr. Arun Jain, learned Counsel for the petitioners did not dispute the facts referred to above but vehemently contended that the order passed is the outcome of the misreading of the judgment passed by this Court in Gurpreet Singh's case AIR 1992 P & H 95 (supra). He made special reference to para No. 11 of the said judgment to contend that non-compliance of mandatory provisions of Order 32, Rule 3 of the Code would make the decree void and must also presume to have caused prejudice to the appellants. Para No. 11 of the said judgment is reproduced below for ready reference.
11. Mr. Bindra has relied upon a decision of the Calcutta High Court reported as Nirmal Chandra v. Khandu Ghose , which, in our opinion is similar on facts to the present one. In this case the minors filed a suit seeking a declaration that an ex parte rent decree which had been obtained against them was not binding on them as they had not been properly represented in that rent matter. It was argued by the other side that no prejudice had been caused to the minors as they had been represented by their brother. Reliance was also placed by that party on Mt. Bibi Walian's case (supra). The Calcutta High Court however held that as no application had been made, as required under Order 32, Rule 3 of the Code, no notice issued to the proposed guardian as required by Sub-rule (4) of Rule 3 nor the consent in writing taken from the proposed guardian under Sub-rule (3) of Rule 4, the mandatory provisions of Order 32, had not been complied with and, as such, the decree in the earlier suit was vitiated. It was also held that Walian's case (supra) had interpreted Section 443 of the Civil Procedure Code Act XIV of 1882 and the wording of that section was substantially ?different from the wording of Order 32, Rules 3 and 4. We too are of the view that the non-compliance with the mandatory provisions of Order 32, Rules 3 and 4 of the Code make the decree void and must also presume to have caused prejudice to the appellant. The finding of the learned single Judge on this point is therefore, reversed. On the above premises ordinarily the case would have to be remanded to the trial Court for afresh decision but for the reasons recorded in the succeeding paragraphs, we feel that this would not be the appropriate step in the facts and circumstances of this case.
Thus, the learned Counsel for the-petitioner contended that in view of the Division Bench judgment of this Court, the judgment and decree qua the rights of the petitioners is liable to be set aside, as the prejudice is to be presumed to have been caused to the minors for non-compliance of the provisions of Order 32, Rule 3 of the Code.
10. I have considered the arguments raised by the learned Counsel for the parties and find that this Court in the case of Gurpreet Singh AIR 1992 P & H 95 (supra) took note of the Full Bench judgment AIR 1974 P & H 315 at p. 321 which has been relied upon by the learned lower Appellate Court and it was noticed as under (para 10 of AIR):
The crux of the matter is that it has to be seen whether the minor was effectively represented in the litigation. If he was, then the non-compliance with the provisions of Order 32, Rule 3, which are mandatory, would not render the decision void. But if the non-compliance has caused prejudice to the minor or he was not effectively represented, the decision will be void i.e., the minor can either ignore it or avoid it. This approach is in consonance with justice because where the matter had been properly contested and no prejudice has been caused to the minor, it will be sheer injustice to the other side to reopen the matter again. Litigation is a very expensive affair and the general principle of law is that it should not be encouraged. In this view of the matter, so far as the facts of the present case are concerned, there can be no two opinions that the minors were effectively represented and no prejudice has been caused to them. Their interests were effectively safeguarded by their brothers, who were co-defendants with them and whose interests were identical.
11. In the present case, even if for the sake of arguments we take it that prejudice is to be presumed in favour of the minors still in the present case no such presumption arise. It is not in dispute that the present petitioners have no claim or right in the major portion of the land which was sold to defendants Nos. 3 to 5 who were in appeal before the learned Additional District Judge wherein the application was moved. Regarding balance land, the father of the petitioners through whom they were claiming their right had already agreed to transfer the said land in their favour. In the present case, the suit was not filed against the minors but they were only brought on record as legal representatives of their deceased father and as per the settled law they were not entitled to raise any plea which was present to them and were to contest the case as set up by their father. Their uncle Pyare Lal had effectively contested the case and lost and thereafter did not choose to challenge the same in appeal. Even the present petitioners who had attained majority did not choose to file an appeal to assert their right qua their interest, if any, left in the land nor choose to file cross-objections in the appeal pending before the first Appellate Court where the application under Section 151 of the Code was made by the petitioners there was no dispute to the rights of the petitioners as the appellants therein i.e. defendants Nos. 3 to 5 in the suit were not contesting the decree qua 11 kanals 8 marlas of land. Therefore, prima facie the petitioners had no right in the lis nor they chose to file any appeal on attaining majority and therefore, I am of the opinion that the findings recorded by the learned Additional District Judge is in accordance with law and it has been rightly held that no prejudice has been caused to the petitioners.
12. Consequently, finding no merit in the present revision, the same is hereby dismissed. No order as to costs.