BINOD MISHRA & Ors. v. Both sons of Raghunath Mishra

defendants appellants were directed by an order of injunction not to transfer the suit properties which have been described in partition suit no. 83 of 1982. On perusal of the documents, it appears that earlier this appellant had been granted the privilege by this Court for selling 7 acres 70 decimals of land, and this time without permission of the Court, they have again transferred by two separate sale deeds, 4 decimals and 2 kathas of land on 28.9.2003. In the show cause filed by the appellants - 2 - in the Court below, it has been stated at paragraph 6 “that the opposite party no. 1 executed the two sale deeds mentioned in the petition under the impression that the land sold by her was not the subject matter of the suit in the case. ” Paragraph 7 “that the area of C.S.P. Plot No. 284 is 3 Bighas 3 Kathas out of which only

1.83 acres of R.S.P. Plot No. 823 is in the suit. ” Paragraph 8 “that the opposite party no. 1 executed the sale deed under the impression that the land sold by her was out side the area mentioned in plaint of partition Suit No. 83 of

1982.” In the present appeal, the stand taken on behalf of the appellants is mentioned at paragraph 9 wherein it has inter alia been stated at paragraph 9 that the appellants, “ defendants filed show cause denying the allegations that they have not sold the lands out of the suit land, rather they sold the land out beyond the area of 1.83 acres of Plot No. 823 which was not the suit land as the C.S. Plot No. 823 R.S. Plot No. 284 had an area of 3 - 3 - Bighas 3 Kathas which is equivalent to 78 Kathas whereas suit land measuring 1.83 acres is equivalent to 43.1/ 4 Kathas only.” From the aforesaid statements made in the Court below and before this Court it appears that to different stands are being taken by the appellants contradicting themselves not only with respect to the stand but with respect to the case of the parties in the suit. This fact is in itself a good ground for rejecting the appeal and confirming the order of punishment. The appellants have argued that in fact the suit lands i.e. C.S. Plot No. 823 was settled by the ex-landlord through a Patta executed in favour of the present appellant, with respect to which they have filed Title Suit No. 120 of 1993. Therefore, they claim that since the land that has been sold is part of the Title Suit No. 120 of 1993, in which suit there is no order of injunction, or status quo, with respect to the suit lands the appellant was entitled to dispose of or transfer the lands in question. As against the submissions made by the learned counsel for the appellants the learned counsel appearing on behalf of the - 4 - respondents submits that the settlement made by the ex-landlord was annulled under Section 4H of the Bihar Land Reforms Act, 1950 by the State of Bihar against which the appellants went in appeal which was also dismissed and thereafter suit 120 of 1993 was filed for setting aside the orders passed in a proceeding under Section 4H of the Bihar Land Reforms Act, 1950. It has also been submitted and pointed out in the Court that the plaint of partition suit no. 83 of 1982 would indicate that C.S. Plot No. 823 is part of the suit lands in the partition suit and, therefore, it is incorrect on behalf of the appellants to submit before this Court that they are not in contempt and that they have not sold lands which were part of the partition suit. On perusal of the plaint which is annexure- B to the reply petition on behalf of the respondents, it is apparent that plot no. 823 measuring 1.83 acres has been shown as part of the lands which was subject matter of the partition suit. The stand of the appellants before Court therefore, substantiated on facts. The Court below has taken pains and discussed the entire facts the - 5 - orders etc. passed by this Court and by the Court below while hearing the application under Order XXXIX Rule 2A and has come to a finding that the appellants had sold the suit land despite a restrain order by the Court and has found them guilty under Section XXXIX Rule 2A of the Code of Civil Procedure. There is no defect in the reasoning or the facts as stated by the Court below and as such this Court finds no reason to interfere with the order dated

25.3.2008. Mr. Das has submitted that the appellant no. 1 is old lady about 80 years of age whereas appellant no. 2 could not be punished for contempt, in view of the fact that he is a witness to the sale deed and as such was not responsible for executing the sale deed. This Court finds that the appellant no. 2 was party in the partition suit and was very much aware of the order by which the appellant no. 1 was injuncted from not selling any part of the suit properties and as such it cannot be said that he can be exonerated by this Court. The counsel for the respondents have brought on record a sale deed executed in 2006 by the appellants and - 6 - submits that the parties continue to violate the order of the Court even though they are facing civil contempt proceedings. It is further submitted that the lands which have been sold are prime lands and the sale deeds do not reveal the true value of the land. The respondents could in fact never be compensated for the loss that they will suffer, even if the share of the parties are adjusted. It is also emphasized that the appellants have sold beyond their share. These issues will be decided in proper proceedings. However, considering the age of appellant no. 2 this Court orders that the appellants who are mother and son should pay a sum of Rs. 50,000/- within a period of six weeks from the date of receipt/production of a copy of this order before the Court below and in default of which the order of the Court below dated

25.3.2008 shall come into play and the appellants will have to undergo one month of civil imprisonment. This appeal is dismissed with the aforesaid observations. Sanjay (Sheema Ali Khan, J.)