Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.228 of 2012 ====================================================== Jagdish Kumar @ Jagdish Kumar Rajak Versus .... .... Appellant/s Dharamnath Pandit & Anr .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Rajib Ranjan Jha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 3 16-08-2013 Heard learned counsel Mr. Rajib Ranjan Jha on behalf of the appellant under Order XLI Rule 11 of the Code of Civil Procedure. 2. The defendant-appellant-appellant has filed this Second Appeal against the judgment and decree dated 16.02.2012 passed by the learned 3rd Additional District Judge, Saran at Chapra in Title Appeal No.30 of 2010 whereby the learned lower appellate court dismissed the appeal and
Legal Reasoning
confirmed the judgment and decree dated 14.05.2010 passed by the learned 3rd Munsif at Chapra in Title Suit No.115 of 1996. 3. The plaintiff-respondent filed the aforesaid suit for injunction praying for restraining the defendant from interfering with the possession of the plaintiff on the suit land and further from restraining the defendant from dispossessing the plaintiff and also for demarcation of the plaintiff’s land by appointment Patna High Court SA No.228 of 2012 (3) dt.16-08-2013 2 of survey knowing Pleader Commissioner. 4. The plaintiff claimed the aforesaid relief alleging that the suit land was allotted in favour of the plaintiff in Partition Suit No.29 of 1980, which was decreed on the basis of compromise and the present plaintiff-respondent got 3 dhoors of land in the east of plot whereon he has got a residential house. The plaintiff is residing in the said house with family members. There is a Sahan. The 3 dhoors of land in western portion was allotted in favour of Ram Pravesh, who was the plaintiff in Partition Suit No.29 of 1980. He sold the land to the defendant. However, the defendant subsequently demolished the boundary wall. 5. On the other hand, the case of the defendant is that the vendors of the defendant are not party to the compromise decree passed in Partition Suit No.29 of 1980 and, therefore, the ex-parte compromise decree is not binding on his vendors and the defendant. The plaintiff and his brothers had got 3 dhoors land. There was subsequent partition between the brothers of the plaintiff and Mostt. Maheshwari, one of the widows of plaintiff’s brother. In that amicable partition, the plaintiff was not allotted any share in the suit land and the suit land was allotted in favour of the vendors of the defendant. The vendors of the defendant Patna High Court SA No.228 of 2012 (3) dt.16-08-2013 3 subsequently sold to the defendant by registered sale deed in the year 1985. After purchase the defendant is coming in possession of the property. 6. The trial court after considering the evidences on record came to the conclusion that the defendant-appellant has purchased the land during the pendency of Partition Suit No.29 of 1980. The partition suit was decreed on compromise. The said compromise decree was never challenged by the vendors of the defendant-appellant. The trial court also came to the conclusion that the case of the defendant to the effect that there was amicable partition between the brothers of the present plaintiff has not been proved by the defendant and accordingly decreed the plaintiff’s suit for injunction. 7. The defendant thereafter filed title appeal before the lower appellate court. The lower appellate court confirmed the finding of the trial court and dismissed the defendant-appellant’s appeal.
Legal Reasoning
8. Learned counsel Mr. Rajib Ranjan Jha appearing on behalf of the appellant submitted that although the defendant made a case that there was amicable partition between the brothers of the present plaintiff and in that amicable partition 3 dhoors of land was allotted to the vendors of the defendant Patna High Court SA No.228 of 2012 (3) dt.16-08-2013 4 who sold the property but there is no specific finding recorded by the lower appellate court. The plaintiff of this present suit never challenged the sale deed executed by the vendors of the defendant in favour of the defendant in the year 1985, therefore, the judgment is vitiated. Learned counsel further submitted that in Partition Suit No.29 of 1980 the vendors of the present defendant had not signed the compromise decree, therefore, it is not binding on them and it is a void decree. 9. From perusal of the judgments of both the courts below, it appears that the courts below have considered the evidences and the materials produced by the plaintiff and thereafter recorded the above findings. The submission of the learned counsel that there was amicable partition between the brothers is concerned, from perusal of the lower appellate court judgment it appears that the lower appellate court clearly recorded a finding that it was the onus on the defendant to prove by adducing cogent and reliable evidence in support of the fact that in the amicable partition the present plaintiff was not allotted anything, but the defendant failed to prove this pleading. It may be mentioned here that the sale in favour of the defendant was in the year 1985 i.e. during the pendency of Partition Suit No.29 of 1980. The said suit was decreed on compromise on Patna High Court SA No.228 of 2012 (3) dt.16-08-2013 5 04.01.1990. In the said decree 3 dhoors of land was allotted to the present plaintiff. Therefore, the stand taken by the defendant is contrary to the compromise decree passed in Partition Suit No.29 of 1980. It is admitted fact that neither the vendors of the defendant nor the defendant himself ever challenged the compromise decree passed in Partition Suit No.29 of 1980. In such circumstances at this stage i.e. also by way of defence in the present suit he cannot be allowed to say that the compromise decree passed in Partition Suit No.29 of 1980 is void and not binding on the present defendant-appellant or his vendor. In the case of M. Meenakshi & Ors. Vs. Metadin Agarwal & Ors. reported in (2006) 7 Supreme Court Cases 470 the Hon’ble Supreme Court has held as follows:- “It is well settled principles of law that even a void order is required to be set aside by a competent court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non-est. An order cannot be declared to be void in collateral proceedings”. 10. The same view has been taken in the case of Sultan Sadik Vs. Sanjay Raj Subba, reported in A.I.R. 2004 SC 1377. 11. Considering all these decisions recently the Hon’ble Supreme Court in the case of Inderjit Singh Grewal Patna High Court SA No.228 of 2012 (3) dt.16-08-2013 6 Vs. State of Punjab, reported in 2012 (1) B.L.J. 42 SC at paragraph 14, held that it is evident that even if a decree is void ab initio, the declaration to that effect has to be obtained by the person aggrieved from the competent court. Moreso, such a declaration cannot be obtained in collateral proceedings. 12. In the present case it is admitted that in Partition Suit No.29 of 1980 in the compromise decree the present plaintiff was allotted 3 dhoors of land. The defendant had purchased the property in the year 1985 i.e. during the pendency of the said partition suit. Therefore, his sale will be dependant on the result of the partition suit. In such circumstances, it was not necessary for the plaintiff to challenge the sale deed executed by the vendors of the defendant in favour of defendant because the transfer itself is hit by doctrine of lis pendens as provided under Section 52 of the Transfer of Property Act. 13. So far the case of the defendant that there was amicable partition between the brothers is concerned, both the courts below have categorically recorded the finding that the defendant failed to prove this fact and moreover after the sale in favour of defendant, Partition Suit No.29 of 1980 was compromised on 04.01.1990 and, therefore, the transfer will be always subject to the result of the partition suit. In such Patna High Court SA No.228 of 2012 (3) dt.16-08-2013 7 circumstances, the findings of both the courts below are finding of facts and the points raised by learned counsel for the appellant are not at all substantial questions of law. Accordingly, I find that no substantial question of law is involved in this Second Appeal and thus this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Harish/-