Bombay High Court
Rajesh S/O Krushnrao Sakore Through ... vs Shri Nagorao S/O Sadashivrao Tikle And ... on 4 November, 2019
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL No. 235 OF 2018
1) Rajesh s/o Krushnrao Sakore
aged about 51 years, Occ. Business,
2) Dnyaneshwar s/o Balkrishna Supare,
aged major, occ. Retired
3) Prakash s/o Dhannusao Palsapure,
aged about 45 years, occ. Business
4) Vijay s/o Baburao Borade,
aged about 45 years, occ. Business
5) Sarla O. Dixit,
aged about 41 years, Occ. Business
6) Gajanan s/o Ramraoji Yenurkar
aged about 63 years, occ. Nil
7) Dhanlal s/o Shankar Chauliwar
aged about 46 years, occ. Service
8) Narayan s/o Hari Petkar,
aged about 69 years, occ. Retired
9) Chandanabai Bhagwandas Tambe
aged about 85 years, occ. Housewife
10) Ramesh s/o Rajaram Nipane,
aged about 50 years occ. --
11) Ashok s/o Ramdas Bhimate,
aged about 56 years, occ. Service
12) Subhash s/o Sambhaji Gurumukhi
aged about 52 years, occ. Service
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13) Ragini Jagdish Hatwar
aged about 45 years, occ. Service
14) Krushna s/o Sampatrao Bhoyar
aged about 53 years, occ. Service
15) Ashok s/o Pundlikrao Khedkar
aged about 51 years, occ. Service
16) Pushpa R. Dudhe,
aged about 46 years occ. Service
17) Rukma Damodhar Wadbudhe,
aged about 47 years, occ. Housewife
18) Mohan s/o Yadaorao Pohane,
aged about 62 years, occ. Retired
19) Rajesh s/o Natthuji Wadibhasme,
aged about 42 years, occ. Business
20) Arun s/o Shyamrao Bhute
aged about 58 years, occ. Private
21) Shalini Yadav Tambale,
aged about 78 years., occ. Private
22) Chandrashekhar s/o Baburao Maudekar
aged about 52 years occ. Service
23) Nisha N. Bangade,
aged about 39 years occ. Service.
24) Sunita w/o Rajesh Dhobale
aged about 40 years, occ. Hosuewife
25) Pankaj s/o Mahadeo Dhawale,
aged about 38 years, occ. Private
26) Jaidao s/o Devaji Atkari,
aged about 46 years occ. Business
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27) Ravi s/o Prakash Parmar
aged about 56 years, occ. Service
28) Manikchand Bhirkhede
aged about 48 years, occ. Service
29) Yadavrao N. Shingnapure
aged about 40 years. Occ. Service
30) Ratnakar s/o Khemaji Wanjari
aged about 46 years, occ. Business
31) Vinod s/o Krushnaji Sakore,
aged about 36 years, occ. Business
32) Manoj s/o Krushnaji Sakore
aged about 34 years, occ. Business
33) Hemraj s/o Baliramji Sakore
aged about 32 years, occ. Buisness
34) Hitendra Ghordadekar
aged about 48 years, occ. Business
35) Krushnarao s/o Baliramji Sakore,
aged about 64 years, occ. Retired
36) Rekha Rajesh Sakore,
aged about 45 years, occ. Business
37) Bularam R. Ambade,
aged about 51 years, occ.service
38) Vishnuji Shyamraoji Bhute
aged about 70 years, occ. Business
through their constituted power of attorney
holder Shri.Bularam R. Ambade,
aged 51 years, occ. Service,
R/o. Sai Kripa Society, Near Ramna Maroti
Last Bus Stop, Plot No.18 d,
New Diamond Nagar, Nagpur 440 009
-- Appellants
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...V E R S U S...
1) Shri. Nagorao Sadashivrao Tikle
Aged about 81 years, occ. Cultivator and retired
R/o. Plot No.16, Saikrupa Society,
(Tikle Layout), Ramana Maroti,
Last Bus Stop Chowk,
New Diamond Nagar, Nagpur
2) Saikrupa Sewa Gruha Sukh Nirman Sanstha,
having its registration No.57/82,
through its Secretary
Shri.Ravnath s/o Bakramji Kuraskar,
Aged major
R/o. 15, Rajabaksha, Medical Road,
Rambagh colony, (Rajabaksha road
from Medical College to Jat Tarodi) Nagpur
3) Shri.Ravnath s/o Bakramji Kuraskar,
Aged major
R/o. 15, Rajabaksha, Medical Road,
Rambagh colony, (Rajabaksha road
from Medical College to Jat Tarodi) Nagpur
4) Smt. Vanita Arunrao Jadhav
aged major, occ. Service
R/o. Police Quarters, Police Line Takli,
Nagpur
5) Shri. Rakshak s/o Gangadhar Dalal
aged about 34 years
6) Shri. Ashish s/o Gangadhar Dalal
aged about 38 years
7) Smt. Shobhatai w/o Gangadhar Dalal
aged about 48 years
Nos. 5 to 7 R/o. Plot No.34,
Saikrupa Society (Tikle Layout)
Ramana Maroti, Last Bus Stop Chowk,
New Diamond Nagar, Nagpur
.. Respondents
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Mr. R. S. Sundaram, counsel for appellants
Mr. K. B. Ambilwade, counsel for respondent No.1
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CORAM :- MANISH PITALE J.
Reserved on :- 15th October 2019
Pronounced on :- 04th November 2019
JUDGMENT
By this appeal, the appellants have challenged judgments and orders passed by the two Courts below whereby suit for declaration filed by the respondent No.1 has been decreed, as a result of which sale deed dated 21.03.1985 executed by the respondent No.1 in favour of respondent No.2 society has been declared null and void, which has adversely affected interests of the appellants herein.
(2) The aforesaid suit for declaration and damages was filed by respondent No.1 against respondents No.2 to 7, contending that the sale deed executed on 21.03.1985 and registered on 26.06.1985 in favour of respondent No.2 was a nominal sale deed, which deserved to be declared as null and void. It was further prayed on behalf of the respondent No.1 that he was ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 6 / 21 sa235.18.odt entitled to compensation of Rs.50,000/- from the original defendants i.e. respondents No.2 to 7 for breach of contract.
(3) Initially written statement was filed by the then Secretary of the respondent No.2 society and the claims made by the respondent No.1 were opposed. Later the respondent No.3, as Secretary of the respondent No.2 society claimed that the society had nothing to do with the grievance raised by the respondent No.1. (4) On the basis of pleadings available on record, the Court of Joint Civil Judge Junior Division, Nagpur (Trial Court) framed issues concerning the grievances raised by respondent No.1 and the parties led evidence in the matter. On the basis of the oral and documentary evidence on record, the Trial Court found that the respondent No.1 had executed the aforesaid sale deed dated 21.03.1985 under the belief that the respondent No.2 society was a co-operative society, while it turned out to be a charitable trust and that therefore, the sale deed was liable to be declared as null and void. The Trial Court also gave a finding with the suit simplicitor ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 7 / 21 sa235.18.odt for declaration was maintainable in the absence of a specific relief sought for possession of the property which was subject matter of the said registered sale deed. On this basis the suit was partly decreed and sale deed dated 21.03.1985 registered on 26.06.1985 was declared null and void and not binding on respondent No.1. (5) The appellants herein came into picture for the first time before the Court of District Judge, Nagpur (Appellate Court) when they sought leave to file appeal against the said judgment and decree passed by the Trial Court. The appellants were purchasers of plots demarcated in the property that was subject matter of the aforesaid sale deed executed in favour of respondent No.2 society. They sought leave of the Appellate Court on the ground that they were directly affected by the judgment and decree passed by the Trial Court, because the respondent No.2 society had executed sale deeds in favour of the appellants on the strength of the aforesaid sale deed dated 21.03.1985 and that the interests of the appellants were directly and adversely affected by the judgment and decree of the Trial Court. By order dated ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 8 / 21 sa235.18.odt 01.10.2016, the Appellate Court granted leave to the appellants to file appeal.
(6) By judgment and order dated 17.01.2018, the Appellate Court dismissed the appeal filed by the appellants, agreeing with the findings rendered by the Trial Court. The Appellate court held that the aforesaid sale deed executed in favour of the respondent No.2 society was nominal and invalid and no title had passed in favour of the respondent No.2 society by execution of the aforesaid sale deed. On the question of maintainability of the suit in the absence of prayer for grant of possession, the Appellate court agreed with the Trial Court and held in favour of respondent No.1. The Appellate court further held that since the appellants had not joined as parties before the Trial Court, they could not raise any grievance of non-joinder of necessary parties and it was further held that principle of lis pendens would apply. (7) Aggrieved by the said judgment and order passed by the Appellate Court, the present second appeal was filed in which by order dated 04.05.2018 two substantial questions of law were framed and thereafter ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 9 / 21 sa235.18.odt by order dated 15.10.2019 another substantial question of law was framed. The rival parties were heard exhaustively on the three questions of law framed by this Court. (8) The said substantial questions of law read as follows :-
(i) Whether the suit filed by original plaintiff/ respondent No.1 for declaration simplicitor is maintainable in the absence of relief of decree of possession sought by him, considering the facts and circumstances of the case ?
(ii) Whether the suit filed by the original plaintiff/ respondent No.1 is hit by non-joinder of parties considering the admitted facts on record ?
(iii) Whether the findings rendered by the courts below pertaining to sale deed dated 21.03.1985 registered on 26.06.1985, holding the same to be nominal, are perverse?
(9) Mr. R. S. Sundaram, learned counsel appearing on behalf of appellants submitted that the Courts below had committed a grave error in passing decree in favour of respondent No.1 and declaring the aforesaid sale deed as null and void. It was submitted that there was absence of material on record to show that the aforesaid sale deed was a nominal sale deed or that it ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 :::
10 / 21 sa235.18.odt was liable to be set aside on the ground that the respondent No.1 was under an impression that the respondent No.2 society was a co-operative society, while it was actually a society registered under the Societies Registration Act and it was a 'Trust'. It was further submitted that suit for simplicitor declaration was not maintainable in the absence of prayer for grant of possession because there was ample material on record to show that the possession of the property had already passed into the hands of the society and thereafter to the appellants by execution of registered sale deeds by the respondent No.2 society in favour of appellants. (10) It was further submitted that the appellants were necessary parties in the suit filed by the respondent No.1, as he was well aware about the agreements executed by the respondent No.2 society in favour of the appellants for sale of plots in the said property, in which, the respondent No.1 had signed as a witness and further when registered sale deeds had been executed in favour of the appellants in pursuance thereof. The interests of the appellants were obviously to be adversely affected by ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 11 / 21 sa235.18.odt the prayers made in the suit filed by respondent No.1 and therefore, they were necessary parties and the suit deserved to be dismissed for non-joinder of necessary parties. It was submitted that the entire approach of the Courts below, while declaring that the said sale deed was a nominal sale deed, was erroneous and that therefore, the decree passed in favour of the respondent No.1 deserves to be set aside.
(11) On the other hand Mr. K. B. Ambilwade, learned counsel appearing for respondent No.1 submitted that the agreements executed earlier to the said sale deed indicated that the then Secretary of the respondent No.2 society had misled the respondent No.1 and that the whole basis of execution of the sale deed was sham and bogus, thereby showing that the Courts below had correctly declared the sale deed to be null and void and a nominal document. It was further submitted that the respondent No.1 was not required to incorporate a prayer for grant of possession, because the sale deed was itself nominal and possession was not passed from the respondent No.1 to the respondent No.2 society. It was ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 12 / 21 sa235.18.odt further submitted that the appellants could not be said to be necessary parties in the present case, because when the respondents No.2 society itself had not acquired valid title it could not have passed any title in favour of the appellants. On this basis, the learned counsel for respondent No.1 submitted that the appeal deserved to be dismissed.
(12) In the present case, there is no dispute about the fact that the aforesaid sale deed was a registered document, whereby the property in question was sold by the respondent No.1 to the respondent No.2 society. The payment of consideration of Rs.80,000/- to the respondent No.1 has been recorded and acknowledged in the said registered sale deed and it is also recorded that possession of the property was handed over to the respondent No.2 society on the date of the registered sale deed. It is also significant that the respondent No.1 was signatory as a witness to the agreements of sale executed by the respondent No.2 in favour of the appellants, whereby plots demarcated in the property in question were agreed to be sold by the society ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 13 / 21 sa235.18.odt to the appellants. Therefore, respondent No.1 was aware about the fact that the respondent No.2 society was intending to sale plots demarcated in the said property to the appellants on the date when registered sale deed was executed by him in favour of the society. There is no dispute about the fact that the respondent No.2 society indeed executed registered sale deeds in favour of the appellants in respect of the plots demarcated in the said property. The material on record also indicates that the appellants took possession of the said plots pursuant to the registered sale deed executed in favour of the respondent No.2 society and after applying for building permissions from the competent authorities, they proceeded to construct houses on such plots. This material clearly shows that the interest of the appellants was created in the property in question and they would be vitally affected by the suit filed by respondent No.1 in the present case. As noted above, since the respondent No.1 himself was a witness to the agreements of sale executed by respondent No.2 society in favour of the appellants in respect of sale of plots in the said property, the respondent No.1 was clearly aware about such interests ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 14 / 21 sa235.18.odt of the appellants in the property in question. (13) Despite these facts, the respondent No.1 chose not to add the appellants as parties to the suit filed before the Trial Court. The appellants were clearly necessary parties, as any adverse order in the suit pertaining to the registered sale deed executed in favour of the respondent No.2 society would adversely affect the interests of the appellants who had registered sale deeds in their favour in respect of the plots demarcated in the property in question. The Courts below failed to appreciate this aspect of the matter while passing the impugned judgments and orders. It is surprising that the Appellate Court in this context observed that the respondent No.1 could take the help of the principle of lis pendens against the appellants without their being any material on record to show that the respondent No.2 society had proceeded to execute registered sale deeds in favour of the appellants during the pendency of the suit to frustrate the suit filed by respondent No.1. (14) The Appellate Court itself had granted leave to the appellants to file appeal against the judgment and ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 15 / 21 sa235.18.odt order passed by the Trial Court, yet on the question of failure of respondent No.1 to join appellants as necessary parties to the suit, it was observed that the appellants could not claim that the suit was bad for non-joinder of necessary parties, because they failed to get themselves impleaded as parties before the Trial Court. On this basis the Appellate Court erroneously held that the appellants could not raise such plea in respect of the suit filed by respondent No.1. The Appellate Court erred in adopting such an approach and the Trial Court clearly failed to approach appreciate this aspect of the matter while passing the decree in favour of respondent No.1. Therefore, question No.(ii) framed by this Court is answered in favour of the appellants and against the respondent No.1.
(15) On the question as regards maintainability of the suit filed by respondent No.1 in the absence of prayer for grant of possession, both the Courts below have held in favour of respondent No.1. In the present case, the declaration sought by the respondent No.1 was that the aforesaid sale deed executed in favour of respondent ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 16 / 21 sa235.18.odt No.2 society was null and void. The said registered sale deed recorded the fact that the possession of the property was handed over to the respondent No.2 society. The respondent No.1 himself was a witness to the agreements for sale executed by the respondent No.2 society in favour of the appellants and it is established on record that registered sale deeds were executed by respondent No.2 society in favour of the appellants in respect of plots demarcated in the property and that the appellants had taken possession thereof, pursuant to which, they had obtained building permissions & constructed the houses. Such material on record demonstrated that respondent No.1 was no longer in possession of the suit property. Even though it was claimed by the respondent No.1 that the said sale deed was nominal and it was not binding upon him, it was necessary for the respondent No.1, in the facts and circumstances of the present case, to pray for a decree of possession, if his prayer for declaration that the sale deed was null and void was to be granted by the Court. Yet, the respondent No.1 merely filed a suit for declaration simplicitor. At least after written statement was filed by the then Secretary of the ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 17 / 21 sa235.18.odt respondent No.2 society, asserting that consideration amount had been paid and possession of the property was obtained by the society and that registered sale deeds had been executed in favour of plot holders i.e. appellants, it was incumbent upon the respondent No.1 to have incorporated a prayer for decree of possession. But, the respondent No.1 failed to do so and yet the two Courts below concurrently not only entertained the suit, but also passed the decree in favour of respondent No.1. Therefore, this Court finds that the question No.(i) framed by this Court deserves to be answered in favour of the appellants and against the respondent No.1. (16) This leaves the third question framed by this Court to be taken up for consideration. The same pertains to findings rendered by the Courts below in respect of the aforesaid sale deed, holding that the same was null and void. The Courts below in this context have placed much emphasis on the claim of respondent No.1 that he was misled by the then Secretary of the respondent No.2 society into executing the sale deed as it was claimed that the respondent No.2 society was a ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 18 / 21 sa235.18.odt cooperative society, while it turned out to be a Trust and a society registered under the Societies Registration Act. It was claimed that since respondent No.1 was misled in the said manner, the execution of the registered sale deed itself stood vitiated and that therefore, the sale deed deserved to be declared as null and void. It is strange that when a registered sale deed was on record, wherein it was recorded that the consideration amount had been paid to respondent No.1, in pursuance of which he had executed the sale deed in favour of respondent No.2 society, how could such a sale deed be declared null and void, even if it was found that the respondent No.2 society was a Trust and society registered under the Societies Registration Act and not a cooperative society. The Courts below have erroneously proceeded to hold that the property in question was sold by respondent No.1 believing the respondent No.2 society to be cooperative society meant for housing for the poor and when it was found by respondent No.1 that the society was actually a Trust, the sale deed itself stood vitiated. This Court finds that when a commercial transaction for sale of immovable property was undertaken for consideration, wherein there ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 19 / 21 sa235.18.odt was no condition that the property was to be sold only to a society which intended to construct houses for the poor, there was no question of holding that the sale deed was null and void on that ground. The entire approach adopted by the two Courts below in this regard is found to be erroneous, which has led to perverse findings in respect of the aforesaid sale deed.
(17) Another aspect in the present case is emphasis placed by the Courts below on agreements executed between respondent No.1 and the respondent No.2 society prior to execution of the registered sale deed, on the basis of which it is held that the sale deed was nominal. It is held by the Courts below that as per the first of the two agreements, the respondent No.2 society was to share the proceeds of sale of plots an a agreed proportion and that subsequently it was agreed that a nominal sale deed would be executed. But, the registered sale deed itself makes no reference to the said agreements and it is indeed recorded that the entire consideration of Rs.80,000/- was paid to respondent No.1. It is also recorded that the possession of the property was ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 20 / 21 sa235.18.odt handed over to the respondent No.2 society in pursuance of execution of the registered sale deed. As noted above, the respondent No.1 himself signed as witness to the agreements of sale executed in favour of the appellants and they sought building permissions and started construction of their houses. It is not the grievance of respondent No.1 against the respondent No.2 society in the suit that he was entitled to proceeds of sale of plots by the respondent No.2 society. The prayer in the suit is for declaring the registered sale deed executed in favour of the respondent No.2 society itself as null and void. The Courts below failed to appreciate the material on record in the proper perspective to hold that the sale deed was nominal and that it deserved to be declared as null and void. In any case, as noted above, the appellants were clearly vitally interested parties, about whose interests the respondent No.1 was clearly aware from the very beginning and yet he chose to file the suit only against respondent No.2 society for declaration in respect of the aforesaid sale deed as being null and void. These aspects were not properly appreciated by the Courts below leading to perverse findings and declaration of the said ::: Uploaded on - 04/11/2019 ::: Downloaded on - 05/11/2019 03:18:16 ::: 21 / 21 sa235.18.odt sale deed executed on 21.03.1985 and registered on 26.06.1985, as being null and void. Therefore, it becomes clear that the question of law (iii) framed by this Court also deserves to be answered in favour of the appellants and against the respondent No.1.
(18) In view of above, it is found that decree concurrently granted by the two Courts below in favour of respondent No.1 is not sustainable and it deserves to be set aside.
(19) Accordingly, the appeal is allowed. The judgment and orders passed by the two Courts below are quashed and set aside and the suit filed by the respondent No.1 is dismissed.
(20) No order as to costs.
JUDGE
KOLHE
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