Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.595 of 1991 =========================================================== 1. Uchita Nand Jha son of Parmeshwar Jha, 2. Sachita Nand Jha son of Parmeshwar Jha 3. Mosmat Urmila Devi wife of Parmeshwar Jha 4. Rama Nand Pandey 5. Gaya Nand Pandey 6. Arbind Kumar, all sons of Parmeshwar Jha 7. Manorma Devi, daughter of Parmeshwar Jha, all residents of Talebpur in the town of Barh P.S. Barh District Patna 8. Paro Sao son of Nathoo Sao. 9. Srimati Krishna Devi wife of Om Prakash, all residents of Mohalla Salimpur P.S. Barh District Patna Versus .... .... Appellant/s 1. Sahdeo Prasad son of Sohan Sao, resident of mohalla Talibpur P.S. Barh District Patna 2. Most Radhika Devi widow of Amar Nath Choudhary, resident of village Mahmar Police Station Mahnar District Muzaffarpur, at present residing at Kankarbagh Colony, P.S. Kankarbagh District Patna 3. Gopal Prasad Chaudhary son of Ramdahin Lal. 4. Surendra Kumar Jaiswal son of Ramdahin Lal 5. Ashok Kumar Chaudhary 6. Sarban Kumar Chaudhary 7. Krishna Kumar Chaudhary @ Kishore Kumar Chaudhary, all sons of late Bishun Lal Chaudhary 8. Manoj Prasad 9. Prakash Chand 10. Pramod Chaudhary, all sons of late Kailash Prasad Chaudhary, all residents of mohalla Talebpur Town of Barh P.S. Barh District Patna .... .... Respondent/s =========================================================== Appearance: For the Appellant/s : Mr. Triloki Nath Maitin, Sr. Adv. Mr. Sudhir Kumar Bijpuria, Adv. For the Respondent/s : Mr. Shiv Nandan Prasad Singh, Adv. Mr. Murari Nr.Chaudhary, Adv. Mr. Manoj Kumar, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMENT Date: 20-12-2013 This appeal is directed against the judgment and decree dated 29.8.1991/5.9.1991 passed by the Additional District Judge-II, Barh, Patna in Title Appeal No. 55 of 1990/38 of 1991 whereby the appellate 2 Patna High Court SA No.595 of 1991 dt.20-12-2013 2 / 14 Court below while dismissing the appeal filed by the plaintiffs, has upheld the judgment and decree dated 10.5.1990 passed by the Sub Judge-III, Barh, Patna in Title Suit No. 39 of 1982 whereby the suit had been dismissed. The plaintiff is in appeal before this Court against the concurrent findings of the Courts below.
Legal Reasoning
I shall be referring to the status of the parties as occurring before the trial Court unless clarified by specific reference. Facts of the case briefly stated is that the Title Suit No. 39 of 1982 was filed by the plaintiff praying for a declaration of their title over the Schedule I and II property after setting aside the auction sale dated 8.2.1982 held pursuant to the order passed in Execution Case No. 19 of 1979. The plaintiff further prayed for a declaration that the delivery of possession dated 25.8.1983 is a paper transaction not binding the plaintiff. Facts of the case as reflected from the judgments of the Courts below in brief is that one Ramdahin Choudhary who happens to be the father of the defendant Nos. 3 and 5 and the husband of the defendant No.4, had purchased a piece of land in the year 1950 through a registered deed of sale. The said Ramdahin Choudhary had mortgaged the property admeasuring 4 kathas as well as 4 anna share in the residential house to Radhika Devi, the defendant No.2 through two 3 Patna High Court SA No.595 of 1991 dt.20-12-2013 3 / 14 mortgage deeds marked as Exts. D and D/1. Upon failure of the mortgagor to repay the loan, a Title (Mortgage) Suit No. 46 of 1970 was filed by the mortgagee Radhika Devi and the suit was decreed by Munsif, Barh vide judgment and decree dated 16.5.1977 marked as Ext.15. Following the judgment, the preliminary and final decree was prepared on 27.5.1977 and 2.7.1979 respectively marked as Ext. 16/1 and 16 respectively and which was put to execution giving rise to Execution Case No. 19 of 1979. In between the judgment debtors sold the suit property. Vide sale deed dated 3.9.1979, the son and wife of Ramdahin Lal Choudhary sold Schedule I property in favour of the plaintiff Nos. 1 to 3 and by a second sale deed executed in between 1979-81 the defendant Nos. 3 to 12 sold Schedule-II property in favour of the plaintiff Nos. 4 and 5 through four registered sale deeds. On the other hand pursuant to orders passed in the Execution Case No. 19 of 1979, the suit property was put on auction sale and was purchased by the defendant No.1. According to the plaintiffs as they apprehended dispossession at the hands of defendant No.1 following the sale, that the suit in question was filed with the reliefs detailed hereinabove. It is the case of the plaintiffs that the land mentioned in Schedule I of the plaint was bonafidely purchased by plaintiff Nos. 1 to 3 upon payment of consideration to Gopal Prasad Choudhary the son of Ramdahin Chaudhary and Most. Jagtarini Devi, the widow and 4 Patna High Court SA No.595 of 1991 dt.20-12-2013 4 / 14 after the purchase they came in peaceful possession of the suit land. It is further their case that similarly the plaintiff Nos. 4 and 5 have purchased the Schedule II property from the defendant Nos. 3 to 12 and are in possession of their respective land after getting their name mutated in the municipality. It is the case of the plaintiffs that the auction sale having taken place on 3.5.1982, they became aware about the order passed in the Execution Case No. 19 of 1979 only lately and thus after taking certified copy thereof, it came within their knowledge that the defendant No.1 had purchased the suit property along with some other lands by playing fraud upon the Court. It is also the case of the plaintiffs that the auction purchaser defendant No.1 and the decree holder Radhika Devi were in collusion and have managed the auction purchase by playing fraud on the defendants. It is only the defendant No.1, the auction purchaser who contested the suit and filed the written statement. According to the defendant No.1 the property in question was a self acquired property of Ramadin Lal Choudhary ad measuring 4 kathas situated in Mohalla Talibpur Ward No.5 Holding No. 162 within the Township of Barh in the District of Patna. It was the case of the defendant No.1 that following need of money, the said Ramadin Lal Choudhary executed two registered mortgage deeds on 8.7.2004 for a consideration of Rs.4000/- in favour of the defendant No.2 Radhika Devi who came in 5 Patna High Court SA No.595 of 1991 dt.20-12-2013 5 / 14 possession over the same. On the failure of Ramadin Lal Choudhary to pay back the mortgage money, the Title (Mortgage) Suit No. 46 of 1970 was filed and was decreed. It is at this stage that the sales in question were made by the judgment debtors in favour of the plaintiffs by different sale deeds as detailed above. As the decree stood dissatisfied, hence the execution case was filed by the decree holder defendant No.2 giving rise to Execution Case No. 19 of 1979. Two Miscellaneous applications were filed by the judgment debtors in the execution case which were numbered as 15 of 1982 and 54 of 1982 marked as Ext. E and E/1 respectively raising objections as to the execution of the decree inter alia on different grounds as also for stay of delivery of possession. Both the miscellaneous applications were rejected by the Executing Court. The judgment debtors did not choose to assail either the judgment and decree in the Title Suit No. 46 of 1970 or the rejection of the miscellaneous application before any superior Court and which has attained finality. On the basis of the rival pleadings, the trial Court framed nine issues which are as follows: I. Is the suit, as framed, maintainable? II. Whether the plaintiffs have got cause of action for the suit? III. Is the suit barred by principles of resjudicata? 6 Patna High Court SA No.595 of 1991 dt.20-12-2013 6 / 14 IV. Is the suit bad for misjoinder and non-joinder of necessary parties? V. Whether the auction sale held in execution case no. 19/1979 was held within the knowledge of proforma defendants and plaintiffs? VI. Whether plaintiffs acquired any right, title and possession over the suit land purchased by defendant no.1 in execution case no. 19/1979? VII. Whether the sale deeds of the plaintiffs are farji documents? VIII. Whether the sale deeds of the plaintiffs are hit by the doctrine of lispendence? IX. Are the plaintiffs entitled to the decree as prayed for? All the issues were decided against the plaintiff except Issue No.3 inasmuch as the trial Court held the suit not barred on the principles of resjudicata. The plaintiffs being aggrieved by the judgment and decree of the trial Court filed Title Appeal No. 55 of 1990 and which has been dismissed vide judgment and decree dated 29.8.1991 and hence this appeal.
Legal Reasoning
Mr. Triloki Nath Maitin, learned Senior counsel has appeared on behalf of the plaintiffs while the defendant No.1, the auction purchaser 7 Patna High Court SA No.595 of 1991 dt.20-12-2013 7 / 14 has appeared through Mr. Shree Nandan Prasad Singh. Mr. Maitin, learned Senior counsel appreciating his difficulty in meeting the challenge of concurrent findings by the Courts below and the law laid down by the Supreme Court as to the limited interference in such decrees, advanced his argument primarily on three issues namely: (a) It was submitted that even when the decree passed in Title Suit No. 46 of 1970 was not in relation to Schedule II property which is relatable to Holding No. 26/28, the Courts below have made out a third case to hold that Holding No. 26/28 was a part of Holding No. 162. Learned counsel has relied upon a judgment of this Court reported in 2012(4) BBCJ 552 (Kaushal Vs. Sachidanand Jha) . (b) With reference to the statutory provisions underlying Order 34 Rule 14 of the Code it was submitted that even when the decree in Suit No. 46 of 1970 was in the nature of a money decree, the Court below in execution of the said decree have illegally put the suit property on auction sale which runs counter to the stipulations underlying Order 34 Rule 14 of the Code. Learned counsel in this regard has relied upon a judgment of this Court reported in AIR 1950 Patna 465 (Shamsunder v. Dhirendra). On the strength of the judgment 8 Patna High Court SA No.595 of 1991 dt.20-12-2013 8 / 14 passed in the case of Shamsunder (supra) it was submitted with particular reference to paragraph 9 of the judgment that where a decree itself is void, a second suit would not be a bar. In this regard learned counsel has also referred to a judgment of the Supreme Court reported in AIR 2001 SC 2553(Dhurandhar Prasad v. Jai Prakash University & Ors.) (c) It was submitted that no issue of lis pendens or resjudicata arose in the present case because the suit properties were purchased by the plaintiffs after the decree and prior to the execution case being filed and further that the present suit is for declaration of a title and hence there was no occasion for application of either the doctrine of lis pendens or resjudicata. The arguments of Mr. Maitin has been contested by Mr. Singh appearing for the auction purchaser who submits that besides the fact that the issue whether Schedule II property formed part of Holding No. 162 or not, was purely issues of fact and does not constitute a substantial question of law, that the Schedule II property formed part of the mortgaged property and also formed one single block, stands substantiated not only by the evidence of the plaintiffs themselves but also that of the Pleader Commissioner who was led by the plaintiffs as P.W.14. It was submitted that the provisions underlying Section 52 of 9 Patna High Court SA No.595 of 1991 dt.20-12-2013 9 / 14 the Transfer of Property Act bars any transaction relatable to the suit property after the institution of the suit and until the satisfaction of the decree and since it is not in dispute that the suit property was purchased by the plaintiffs after passing of the decree and before it could be satisfied, hence the law of lis pendens would apply to the transactions with all force. Proceeding further it was submitted that two miscellaneous applications were filed by the judgment debtor who are the vendors of the plaintiffs, before the Executing Court contesting the execution on the anvil of a void decree and that it was not executable but without success. It is thus submitted that the judgment debtors having been unsuccessful in their quest and having not assailed either the decree of the trial Court or the order passed in the execution case before a superior Court, this suit is manifestly barred on the principles of resjudicata and whatsoever error in opinion of the trial Court on this issue, stood modified by the decree of the appellate Court. It is submitted that the plaintiffs having stepped into shoes of the judgment debtor the remedy if any and if available to them would only be under the provisions of Section 47 of the Code and not by way of separate suit as held by the Court below. It was thus submitted that apart from the fact that the issues raised in the suit lacked merit, the suit was also barred on the principles of lis pendens, resjudicata and Section 47 of 10 Patna High Court SA No.595 of 1991 dt.20-12-2013 10 / 14 the Code of Civil Procedure. I have heard learned counsel for the parties and I have perused the materials on record. Of the nine issues framed by the trial Court, Issue Nos. 3, 5, 6 and 9 were the issues germane to the matter in contest and the appellate Court appreciating this aspect, framed the following points for determination. 1. Whether the suit of the plaintiff-appellants are barred by law of lispendence, resjudicata as well as U/section 47 of the C.P.C.? 2. Whether the auction sale dated 8.2.1982, held in Execution case no.19/79, is fit to be set aside on the grounds mentioned in the plaint? 3. Whether the property of both the Schedules of the are part and parcel of holding no. 162 or separate? 4. Whether the plaintiff-appellants are entitled to get decree for declaration of their title as well as recovery of possession over the suit land? 5. Whether the judgment and decree under appeal are liable to be set aside? All the points so formulated by the appellate Court were decided against the plaintiffs and which led to the dismissal of the appeal. 11 Patna High Court SA No.595 of 1991 dt.20-12-2013 11 / 14 Adverting to the questions raised by Mr. Maitin to seek interference with the concurrent findings of fact, I would be dealing with each of the issues individually. The first of the issue raised by Mr. Maitin was whether the Courts below could have made out a third case by holding that Holding No. 26/28 formed part of the Holding No. 162. This Court would wonder as to how this issue becomes a substantial question of law when by the very reflection it is purely an issue of fact to be determined on the evidence available. This issue has been considered by the appellate Court while dealing with Point No.3 and with reference to the evidence of the Advocate Commissioner who was examined as P.W. 14, the sale certificate issued in Execution Case No. 19 of 1979 led as Ext. J and the evidence of the plaintiff themselves, it was held that the suit property was one block of land which was auction sold and put to question in the present suit. Thus there lay no occasion to doubt that the Holding No. 26/28 was nowhere distinct to the property which was auction sold. At least no such evidence was led by the plaintiff to demonstrate as such. There being a concurrent findings on facts with no perversity reflecting, this Court would not delve into this issue. This would bring this Court to the second issue raised by Mr. Maitin relying upon the provisions of Order 34 Rule 14 of the Code. 12 Patna High Court SA No.595 of 1991 dt.20-12-2013 12 / 14 True it is that the provisions of Order 34 Rule 14 applies to money claims where the suit is filed exclusively for recovery of money and in which case the property cannot be put to auction sale in the garb of execution of a money decree but whether the suit filed by the mortgagee defendant No.2 namely, Mosmt Radhika Devi was a money suit is manifest from the decree itself which reflects multiple reliefs and one of which is for sale of the mortgaged property for recovery of the mortgaged money, meaning thereby, the suit was filed for recovery of the mortgaged money by sale of the mortgaged property. The suit thus was not a money suit simplicitor. The reliance of Mr. Maitin on the provisions of Order 34 Rule 14 of the Code is thus wholly misplaced and even the judgment of this Court rendered in the case of Shamsunder (supra) does not come to his aid rather applies against him. The judgment of Shamsunder (supra) is in a case where the money suit was filed for realization of the money and which was decreed. In execution of the decree, certain properties belonging to the judgment debtor was put to auction sale and it is in this context that the provisions of Order 34 rule 14 was referred to. Paragraph 9 relied upon by Mr. Maitin to support his contentions holds as follows: “.…….Where however, the facts themselves have to be determined which may lead to the inference that the property is not saleable, those facts must be pleaded and proved like any other question for determination by the Court itself; and if those questions are not raised at a proper 13 Patna High Court SA No.595 of 1991 dt.20-12-2013 13 / 14 the stage, applicable…………….” bar of res judicata must be Applying the principles laid down in the said judgment to the present case, it is seen that all the objections raised by the plaintiffs through the suit in question were in fact raised by their vendors by filing miscellaneous applications in the execution case and were negated. The rejection was never questioned and have attained finality. Can the plaintiffs by filing a separate suit, question this attainment of finality? The answer has to be in the negative for it would be hit by the principles of resjudicata. That the plaintiffs never chose to take recourse to Section 47 of the Code is now a history. The decree in the mortgage suit filed by the defendant no. 2, in no circumstance either can be rendered a void decree or can be stated to be in contravention of the Order 34 Rule 14 of the Code. The last of the contention raised by Mr. Maitin, is that the transaction was not hit by the principles underlying Section 52 of the Transfer of Property Act. The argument advanced is simply fallacious. Mere time lag in between the passing of the decree and institution of the execution case cannot give a cause of action to any party and in no circumstance would permit a judgment debtor to enter into any transaction relatable to the decreetal property. The provisions of Section 52 equally binds the plaintiffs having stepped into the shoes of the judgment debtor and there is no escape there from. The plaintiffs 14 Patna High Court SA No.595 of 1991 dt.20-12-2013 14 / 14 having stepped into the shoes of their vendors, all issues decided inter parties between the judgment debtor and the decree holder in so far as it relates to the suit property would equally bind the plaintiffs and since the decree passed in Title Suit No. 46 of 1970 has since attained finality, it cannot be permitted to be disturbed at the instances of the plaintiffs by way of an independent suit by raising issues of auction sale which stands concluded by the orders passed in the Execution Case No. 19 of 1979. For the discussions made hereinabove, I find no reason to interfere with the concurrent findings of the Courts below and this appeal failing to raise any substantial question of law is dismissed accordingly. Let the Lower Court Records received in connection with Title Appeal No. 55 of 1990/38 of 1991 from the Court of Additional District Judge-II, Barh, Patna together with the records of T.S. No. 39 of 1982 be returned forthwith. Bibhash/- (Jyoti Saran, J)