Gauhati High Court
Smt. Usha Rani Banik vs Haridas Das And Ors. on 11 November, 2003
Equivalent citations: AIR2005GAU1, AIR 2005 GAUHATI 1, (2003) 3 GAU LT 601
Author: D. Biswas
Bench: D. Biswas
ORDER D. Biswas, J.
1. This application for review of the Judgment and order dated 21-8-2002 passed in Second Appeal No. 12 of 1993 has been assigned to this Court for disposal. The Second Appeal was allowed by this Court by the judgment and order under review reversing the Judgment and order, passed in Title Appeal No. 6/1990 and affirming the Judgment and decree dated 19-4-1989 passed in Title Suit No. 2/1987. The matter was heard on 5-3-2003, and by order dated 9-4-2003 it was directed that the original files of Title Suit No. 201/1J985 along with records of Title Suit No. 1/1986, Title Suit No. 2/1987, Title Appeal No. 6 of 1990 and Civil Revision No. 210 of 1991 be placed on record. The matter was again heard on 30-7-2003. The records placed and made available are in a disarrayed condition which caused delay in rendering this judgment.
2. Shri Haridas Das (opposite party in this review application) filed original Title Suit No. 2 of 1987 for cancellation of the sale deed executed on 26-9-1986 by the original owner Kallpada Das in favour of the review applicant Smt. Usha Rani Banik. The learned Munsiff decreed the suit by the judgment delivered on 19-4-1989. Being aggrieved thereby, the review applicant preferred Title Appeal No. 6 of 1990 which was allowed and the judgment and decree passed by the learned Munsiff in Title Suit No. 2 of 1987 were set aside. The opposite party, thereafter, filed the Second Appeal No. 12 of 1993,which was allowed by this Court. The review application filed by Smt. Usha Rani Banik is directed against this judgment passed in second appeal whereby the original decree passed by the learned Munsiff in Title Suit No. 2 of 1987 has been affirmed.
3. The Second Appeal was admitted by an order passed on 21-1-1993 for hearing on the following question of law:-
"Whether the alleged sale deed is bad in law as it was executed during pendency of two suits?"
4. During the pendency of the Second Appeal, the following additional substantial question of,law was formulated:
"Whether the learned lower appellate Court duly exercised its jurisdiction under Order 2, Rule 2 of C.P.C. in allowing the appeal and thereby dismissing the suit filed by the appellant/plaintiff ?"
5. The review applicant purchased the land and the houses standing thereon by the registered sale deed executed and registered on 26-9-1986 and 27-9-1986 respectively from the original owner. This deed was challenged on the ground that on the date of execution of the sale deed, Title Suit No. 201 of 1985, Miscellaneous Case No. 65 of 1985 and Title Suit No. 1 of 1986 were pending. The learned trial Judge accepted the contention and decreed the suit.
6. Mr. A. Banik, attorney of the applicant contended that the applicant is the bona fide purchaser of the suit land and the houses standing thereon for consideration. She had no knowledge of pendency of any suit and, therefore, she cannot be deprived of right, title and interest over the suit property. Mr. Dhar, learned counsel for the opposite party submitted that the transaction was in violation of the provisions of Section 52 of the Transfer of Property Act without delivery of possession and, therefore, there cannot be review of the judgment delivered by this Court allowing the second appeal.
7. It would appear that the first question relating to Section 52 of the Transfer of Property Act has been dealt with by the learned Munsiff in Issue Nos. 5 and 6 together. The learned Munsiff declared the sale deed dated 26-9-1986 as illegal and void on the ground that the original owner being a party to Title Suit No. 201 /85 and Title Suit No. 1/1986 and the connected miscellaneous petition could not have divested title in favour of the review applicant. Learned Munsiff also was of the opinion that the order of status quo passed in Miscellaneous Case No. 65 of 1985 continued in forced despite dismissal of the connected Title Suit No. 201 of 1985.
8. The opposite party, Shri Hartdas Das instituted Title Suit No. 201 of 1985 in the Court of the learned Munsiff No; 2, Karimganj seeking confirmation of possession and for permanent injunction for restraining the original owner Kalipada Das from alienating the suit land etc. In the connected Misc. Case No. 65 of 1985, the learned Munsiff by the order dated 30-7 1985 directed the defendant (Kalipada Das) to maintain status quo in respect of the disputed property. The said Title Suit Was dismissed for default on 11-12-1985. On application, it was restored to file by an order passed on 5-11-1986 along with the miscellaneous case in which the order of status quo was passed. This shows that the Title Suit No. 201 of 1985 and the connected Miscellaneous Case No. 65 of 1985 were non-existent between the period 11-12-1985 and 5-11-1986. The sale deed by the original owner Kalipada Das was executed on 26-9-1986. Therefore, the contention that the sale deed was executed during peridency of Title Suit No. 201 of 1985 and the connected Miscellaneous Case No. 65 of 1985 Is not correct. The reasons given by the learned Munsiff that despite dismissal of the original suit, the order of status quo passed in Miscellaneous Case No. 65 of 1985 remained operative is not tenable in law. A prohibitory order passed in on application filed in a pending suit will automatically stand vacated on dismissal of the original suit.
9. The opposite party, Haridas Das, also filed Title Suit No. 1 of 1986 against the original owner for specific performance of oral contract for sale of land and dwelling houses (suit properties). The oral contract was entered into by the parties on 19-8-1982. This Title Suit was filed in the Court of the learned Assistant District Judge, Karimganj. The question is whether Title Suit No. 1 of 1986 instituted subsequent to the institution of the Title Suit No. 201/1985 in a different Court was barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure? It may be recalled here that the Title Suit No. 201 of 1985 was filed for confirmation of possession and permanent injunction, whereas Title Suit No. 1 of 1986 was filed for specific performance of oral contract of sale.
10. Order 2 of the Code of Civil Procedure reads as follows :
"2. Suit to include the whole claim:- (1) Every suit shall Include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Rellnquishrnent of part of claim:- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so Omitted or relinquished.
(3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.- For the purpose of this rule ah obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
11. It would1 appear that the plaintiff instituting a suit is reqired by law to include the whole of the claim in respect of same cause of action and he Way relinquish any portion of his claim. If the plaintiff omits any portion of his claim; he shall not afterwards be allowed to sue in respect of the portion of the claim so omitted. However, such omission will not preclude him from filing another suit for the omitted portion of the relief if leave is reserved by orders from the first Court. In the instant case, no such leave was obtained from the Court of the learned Munsiff where he had instituted Title Suit No. 201 of 1985. The Title Suit No. 201 of 1985 was filed on 30-7-1985 and Title Suit No. 1 of 1986 was filed on 3-1-1986 for specific performance of oral contract made on 19-8-1982. The opposite party (Haridas Das) did not mention anything about the oral contract in Title Suit No. 201 of 1985. It, therefore, shows that either the story of oral contract made on 19-8-1982 is a subsequent concoction or, alternately, even there was an oral contract, the opposite party omitted to reserve his right to file a separate suit. This omission precludes him from filing separate suit for specific performance. Therefore, Title Suit No. 1 of 1986 was barred by the provisions of Order 2, Rule 2.
12. On this background, let us address the first question of law. Section 52 of the Transfer of Property Act prohibits transfer of an immovable property, which is a subject-matter of a suit or proceeding pending in a Court, by any party to the suit or proceeding so as to affect the right of any other party under any decree or order which may be made in the pending suit or proceeding. The Section itself makes it clear that a sale of a property which is in dispute in a suit will be ineffective to the extent it affects the right of any of the party to the suit that may be determined. The effect of Section 52 is not to wipe out a sale pendente lite altogether. It only operates as a bar to the extent of right, title and interest that may be determined in favour of the other party. In other words, the essence of Section 52 is that a transaction made during the pendency of a suit by a party to the suit cannot prejudice the interest of the other party. Therefore, sale in the instant case in favour of the review applicant will be valid to the extent it does not affect the right of the opposite party, if any, determined or to be determined in Title Suit No. 201 of 1985 and Title Suit No. 1 of 1986. It was, therefore, obviously wrong on the part of the learned Munsiff to accept the contention raised on behalf of the opposite party. In my considered opinion, the sale deed dated 26-9-1986 will be valid without prejudice to the right, title and interest that may be or, might have been, determined in the other two suits. The learned First Appellate Court elaborately dealt with this question in the judgment delivered in Title Appeal No. 6 of 1990 and I am convinced of the reasons given by the learned District Judge that the sale deed will prevail to the extent it does not affect the right of the opposite party. This question is answered accordingly.
13. With regard to the second question, it is already stated hereinbefore that no leave under Order 2, Rule 2 of the Code of Civil Procedure was obtained by the opposite party in Title Suit No. 201 of 1985 reserving the right to file a separate suit. Therefore, Title Suit No. 1 of 1986 filed for specific performance of oral contract for sale of land is hit by the provisions of Order 2 of the Code. Besides, failure on the part of the opposite party to make any mention of the oral contract made in 1982 in this suit (T. S. No. 201 of 1985) also shows that the suit was, in all probability, founded on concoction.
14. The principle governing the applicability of Order 2 is whether the claim in the new suit is founded upon a cause of action distinct from that which was the foundation for the former suit. The Title Suit No. 201/1985 was filed against the original owner Kalipada Das and (on his death substituted by his legal heirs) for confirmation of possession and permanent injunction restraining the defendants from selling the property in dispute. Cause of action for the said suit arose on 14-7-1985 when the defendant tried to oust the opposite party (plaintiff) forcibly from the disputed land by denying his right, claim and interest (Para 9 of the plaint). It is, therefore, clear that the right, title and interest of the opposite party, if any, was in jeopardy which lead him to file the suit. Therefore, it was incumbent upon him to seek relief for specific performance of oral contract made on 19-8-1982. In para 6 of the plaint in Title Suit No. 1 of 1986, the opposite party also cited 14-7-1985 as the date when cause of action first arose. The cause of action, even the date, in both the suits appear to be same. Therefore, the suit filed by the opposite party for specific performance of the contract in 1986 is hit by the provisions of Order 2 of the Code of Civil Procedure for his failure to obtain leave under Order 2, Rule 2.
15. In so far the suit at hand is concerned i.e. Title Suit No. 2 of 1987, the cause of action for this suit arose on 26-9-1986 when the original owner executed the sale deed in favour of the review applicant. The prayer made in this petition is for cancellation of the sale deed. It is already stated hereinabove that Title Suit No. 201 of 1985 and orders passed in Misc. Case No. 65 of 1985 were non-existent on the date of execution of the sale deed, and Title Suit No. 1 of 1986 though on file was not maintainable as per provisions of Order 2 of C.P.C. Besides, the sale deed will be valid to the extent it does not clash with any decree that may be passed or might have been passed in Title Suit No. 201 of 1985 and Title Suit No. 1 of 1986 determining the right of the opposite party. This position makes it further clear that the learned Trial Court fell in error in decreeing the Title Suit No. 2 of 1987 cancelling the sale deed executed in favour of the review applicant. The right, title and interest of the review applicant derived from the sale deed dated 26-9-1986 shall remain valid to the extent that it does not affect the right of the opposite party, determinable or determined, in the aforesaid two suits. This question is answered accordingly.
16. Review of a judgment on account of some mistake or error apparent on the face of record is permissible as provided in Order 17, Rule 1 (1) (c). An error apparent on the face of the record, cannot be defined precisely and it has to be decided judicially on the facts of each case. In Tungabhadra Industries Ltd. v. Govt. of Andhra Pradesh, AIR 1961 SC 1372, it was held that where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinion, clear case of error apparent on the face of the record would be made out. In the instant case, there is no scope for second opinion to the conclusion that a sale deed executed pendente lite will be valid to the extent it does not affect the right of the other party to the suit and that when leave is not obtained under Order 2, Rule 2 of CPC no separate suit He for the same cause of action.
17. On consideration of this proposition of law, I allow the review petition, modify the judgment passed by this Court in Second Appeal No. 12 of 1993 on 21-8-2002 and dismiss the appeal (Second Appeal). Consequent upon this, the judgment and decree passed by the First Appellate Court in Title Appeal No. 6 of 1990 are hereby affirmed in reversal of the judgment passed by the learned Munsiff in Title Suit No. 2 of 1987.
18. This review petition accordingly stands disposed of.