Mithilesh Thakur v. Radha Devi

petitioners/plaintiffs for an enquiry into the contract for sale 2 ( Mahadanama) executed by defendant/Respondent no.1 with different persons with respect to suit property, which is a dwelling house.

2. The fundamental dispute in the present case is with respect of the nature of the suit property. The plaintiffs‟ case is that the suit property is commercial- cum-residential in nature whereas, as per defendant/Respondent no.1, the suit property is purely a dwelling house. If the suit property is held to be purely a dwelling house, Section 4 of the Partition Act, 1893 (hereinafter referred to as the „Act‟) shall apply, otherwise not. Section of the „Act‟ reads thus:- “4. Partition suit by transferee of share in dwelling-house.-(1) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. (2) If any case described in sub-section(1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by Sub-section (2) of the last foregoing Section.” 3

3. This is not in dispute that a suit was filed by the plaintiffs for partition of 8 dhurs 93 dhurkies land in Schedule II of the plaint, from 1 Katha 12.88 dhurkies of total land as described in Schedule I of the plaint. The plaintiffs‟ claim over the said 8 dhurs 93 dhurkies is based on their purchase of the said land. This is also not in dispute that the defendant/ Respondent first party appeared in the said suit and in his written statement he expressed his willingness and gave undertaking to buy the share of the plaintiffs. This is also not in dispute that the suit was decreed and the claim of the defendant/respondent first set was rejected by the trial Court vide judgment and decree dated 28.2.1997.

4. Title Appeal No. 09 of 1997 against the said decree and judgment dated 28.2.1997 preferred by the respondent first set was allowed by learned Additional District Judge, Darbhanga by his judgment dated 19.9.1998. Learned appellate Court held that respondent first set was entitled to purchase the share of the plaintiffs on valuation to be fixed by the Court below in accordance with Section 4 4 of the Act. The case was, accordingly, remanded back to the trial Court. A second appeal against the said judgment and decree of the lower Court was preferred by the plaintiffs who are petitioners in the present proceeding under Article 227 of the Constitution of India vide S.A No. 29 of 1999. The second appeal was dismissed and thus, the judgment and decree of the lower appellate Court stood affirmed. An appeal under the Letters Patent of this Court filed vide LPA No. 598 of 2002 was also dismissed.

5. The judgment and decree passed by the lower appellate Court having thus been affirmed in second appeal, a proceeding with regard determination of the valuation of the property in question was taken up by learned trial Court. The parties vide an order dated 22.02.2005 were directed to adduce evidence for determination of prevailing price of the Schedule II property of the plaint. The order dated

22.2.2005 passed by the trial Court, requiring the parties to adduce evidence was challenged by the respondent first set before this Court vide Civil Revision No. 500 of 5

2005. This Court vide an order dated 18.1.2006 set aside the order dated 22.2.2005 passed by the trial Court, holding that the date on which the respondent first party exercised their option under Section 4 of the Act, would be the relevant date for fixation of the value of the property in Schedule II of the plaint. This is not in dispute 12.2.1993 is the date on which the respondent first set had exercised her option under Section 4 of the Act by filing the written statement. The trial Court was, accordingly, directed by this Court to determine the value of the suit property as on 12.2.1993, accordingly. The order of this Court dated 18.1.2006 was challenged before the Supreme Court vide Special Leave to Appeal (Civil) No. 8186 of 2006. The Special Leave to Appeal before the Supreme Court against the order dated

18.1.2006 came to be dismissed on 11.5.2006.

6. On the basis of above facts, it is evident that the judgment and decree passed by the learned lower appellate Court dated 19.9.1998, wherein the respondent first set was held entitled to purchase the share of the 6 plaintiffs on the valuation to be fixed by the Court below at prevailing rate in the manner prescribed under Section 4 of the Act, attained finality. Further, the order of this Court dated 18.1.2006 whereby this Court fixed the date of exercising of option under Section 4 of the Act, to be crucial for determination of the value of the suit property i.e.

12.2.1993, also attained finality.

7. Pursuant to the judgment and decree of the learned lower Appellate Court read with the order of this Court dated 18.1.2006 as noted above, the trial Court proceeded to determine the value of the property in question. On the basis of the evidence adduced in course of such enquiry, which included oral and documentary, learned trial Court, vide an order dated 19.10.2006 held that the valuation of the suit property described in Schedule II of the plaint was Rs. 40,000/- as on 12.2.1993. Petitioners were accordingly, directed to execute the sale deed with respect to Schedule II property of the plaint in favour of the respondent first set, on receipt of consideration money deposited in the Court. The Court indicated that if 7 respondent first Set failed to do so, the sale deed would be executed in favour of respondent no.1 through process of Court. The said order was passed by the Court below on

19.10.2006.

8. The order dated 19.10.2006 passed by the learned Court below was challenged by these petitioners by filing a revision petition vide Civil Revision No. 45 of 2007 on the plea that the contention of respondent first party that the property was a dwelling house was totally false and fraudulent and that she had concealed the fact that it was a commercial property. This Court after examining the contentions raised on the behalf of the plaintiffs/petitioners dismissed the revision application vide an order dated

15.4.2008 which is reported in 2008 (4) PLJR 111( Mithilesh Thakur vs. Radha Devi). This Court while dismissing the revision petition held as follows in paragraphs 9 and 10 of the order:- “9. From the facts and circumstances of the case, it is quite apparent that the learned lower appellate Court by its judgment and decree dated 19.9.1998 passed in Title Appeal No. 9 of 1997 had clearly allowed the claim of defendant no.1 under the provision of Section 4 of the Partition Act. The said Section 4 of the 8 Partition Act specifically deals with respect to a dwelling house and hence it is quite apparent that the lower appellate Court has held that Schedule II property of the plaint was a dwelling house. The said judgment and decree of the lower appellate Court was affirmed by this Court as well as by the Hon‟ble Apex Court. In the said circumstances, the question now sought to be raised by the plaintiffs-petitioners that the said property was not a dwelling house, rather it was commercial in nature is not entertainable and the learned court below has rightly rejected the said claim.

10. Furthermore, the valuation fixed clearly in by the learned Court below is accordance with the valuation given in the said Annexure-1 ( Ext.1/A) for residential premises, which was also fully supported by other documentary and oral evidence produced on behalf of the plaintiffs and which could not be disproved by any evidence adduced on behalf of the defendants. It may also be noted that the plaintiffs had filed Partition Suit No. 89 of 1992 on 28.9.1992 giving valuation of the suit property as Rs. 20,000.00 whereas defendant no.1 filed her in which written undertaking was given to buy the share of the transferee plaintiffs and hence in the said circumstances, it does not lie in the mouth of the plaintiffs to now claim that within a period of six months the value of the property enhanced from Rs. 20,000.00 to any amount beyond Rs. 40,000.00 i.e. more than double”. statement on 12.2.1993

9. It seems that on 24.8.2007 the petitioners had filed an application before the Court below seeking an enquiry as regards the nature of the suit property i.e. 9 whether it is being used for commercial purpose or is purely a dwelling house. Learned Court below, however, rejected the said petition by the impugned order dated 14.2.2008. The said order dated 14.2.2008 is under challenge in the present application under Article 227 of the Constitution of India.

10. Mr. Shashi Shekhar Dwivedi, learned senior Counsel appearing on behalf of the petitioners has contended that the respondent first set obtained the judgment and decree from the lower appellate Court by playing fraud, inasmuch as the suit property which the respondent first set claimed to be dwelling house was not in fact purely a dwelling house but there was commercial activity also in the said house. In such circumstance, he submits that first lower appellate Court‟s judgment is based on completely wrong facts and such judgment is a nullity having been obtained by fraud. He further contends that the judgment/order of this Court passed in SA No. 29 of 1999 dated 22.3.2002 is also a nullity in the eye of law as the same is based on fraud. 10

11. He has placed reliance upon certain judgments of the Supreme Court in order to contend that a judgment or decree obtained by fraud is a nullity in the eye of law and can be questioned in any proceeding including collateral proceeding. In the facts and circumstances of the case, he submits that this Court in exercise of power under Article 227 of the Constitution of India should hold that the judgment of the lower appellate Court as well as the second appellate Court have been obtained by playing fraud and, therefore, nullity. He has pressed into service following judgments in support of his contention:-

1. (1994) 1 SCC 1 ( S.P. Chengalvaraya Naidu (Dead) By LRS. Vs. Jagannath ( Dead) By LRS. And others)

2. 2003 (4) PLJR (SC) 208 ( Ram Chandra Singh Vs. Savitri Devi)

3. ( 2007) 4 SCC 221 (A.V. Papayya Sastry & ors. Vs. Government of A.P and ors)

12. Before I deal with the contentions raised in the present application, I must refer to paragraph 8 of the 11 order passed by this Court in Civil Revision No. 45 of 2007 dated 15.4.2008 which reads thus:- and hence “8. The aforesaid order is under challenge in the instant civil revision. The claim of the plaintiffs-petitioners is that the contention of defendant first party that Schedule II property was a dwelling house is fraudulent and she had concealed that it was commercial property defendant never wanted to live therein. It is also claimed by the plaintiffs-petitioners that the purpose of defendant no.1 was only profiteering as she had already made an agreement for sale with some intended intention of purchasers and hence defendant no.1 was clearly against the spirit of Section 4 of the Act. The plaintiffs- petitioners also claimed that the valuation fixed by the learned court below was very low as the letter of the Collector dated 17.3.2005 ( Annexure-1) clearly showed that the value of the commercial land as on 21.11.1992 was Rs. 1,75,000.00 per katha.”

13. From the above paragraph of the order of this Court, it will appear that earlier also similar plea, that schedule II property was not a dwelling house was taken by the petitioners which plea was rejected by this Court vide order dated 15.4.2008.

14. This application under Article 227 of the Constitution of India is also based on same plea as regards 12 nature of the suit property. There is one peculiarity which I have noticed in the present case. This Court dismissed C.R. No. 45 of 2007 on 15.4.2008. The present application under Article 227 of the Constitution of India arises out of Civil Revision No. 565 of 2008 which was permitted to be converted into a writ petition under Article 227 of the Constitution of India by an order dated 10.8.2011. This Civil Revision application (C.R. No. 565 of 2008) was filed on the same day on which Civil Revision No. 45 of 2007 was dismissed i.e. 15.4.2008. I have also noticed that the said Civil revision petition was affidavitated prior to 15.4.2008 i.e. on 10.4.2008.

15. Mr. S.S. Dwivedi, learned senior counsel may be correct in his submission that a decree obtained by fraud is a nullity and can be challenged even in collateral proceeding but such proposition has no application in the present facts and circumstances of the case, as this Court had an occasion to consider similar plea on earlier occasion. In the facts and circumstances of the case, I find no merit in the submission made on behalf of the petitioners, 13 particularly when this Court had an occasion to deal with similar plea and reject it. I do not find any merit in such submission.

16. Mr. Dwivedi has drawn my attention on a supplementary affidavit which has been filed on behalf of the petitioners to bring on record the fact that respondent first set sold the property by a subsequent registered sale deed dated 25.8.2009. It has been submitted that had it been the intention of respondent no.1 to retain the said share of the property only to secure privacy of the family, she would not have sold it. It has been submitted that the purpose behind enactment of Section 4 of the Act is to secure privacy of a family living in the same dwelling house. He contends that by invoking Section 4 of the Act, the respondent first set purchased the said property and sold it only for the purpose of profit making.

17. In my opinion a co-sharer after having exercised option available to him under section 4 of the Act is not denuded of his power or authority to sell the property after having purchased it by invoking Section 4 of the Act. 14 The contention made in this regard on behalf of the petitioners cannot be accepted.

18. In my opinion, the institution of the present revision application on the same grounds and facts which were not acceptable by this Court in the previous proceeding is not bonafide and deserves to be dismissed.

19. This application is, accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumar/-