Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.476 of 2011 ====================================================== Jagarnath Singh @ Badri Singh & Anr. Versus .... .... Appellant/s Raja Ram Singh & Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Shashi Bhushan For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 5 06-08-2013 Heard learned senior counsel Mr. Kamal Nayan Choubey appearing on behalf of the appellants under Order XLI Rule 11 of the Code of Civil Procedure. 2. The interveners-defendants-appellants-appellants have filed this Second Appeal against the judgment and decree dated 30.06.2011 passed by the learned 3rd Additional District Judge, Rohtas in Title Appeal No.26 of 2004, whereby the
Legal Reasoning
learned lower appellate court dismissed the appeal and confirmed the judgment and decree dated 12.05.2004 passed by the learned 2nd Munsif, Sasaram in Title Suit No.12 of 2001. 3. The plaintiff-respondent filed the aforesaid suit praying for declaration that the registered sale deed no.12824 dated 07.08.2000 executed by the original plaintiff Antarwaso Devi (deceased) in favour of defendant nos.1 and 2 as infructuous because of non-payment of the consideration money and also Patna High Court SA No.476 of 2011 (5) dt.06-08-2013 2 prayed for cost of the suit. According to her, she executed the registered sale deed in favour of defendant nos.1 and 2 for consideration of Rs.28,500.00. Rs.8,500.00 was only paid by defendant nos.1 and 2. They did not pay the rest amount to the plaintiff, therefore, the plaintiff retained the original sale deed with her. The plaintiff gave legal notice for payment of the balance consideration amount but they did not pay. Because of non-payment of consideration, the needs of the plaintiff frustrated and now, therefore, she was not intending to sell the property. Before the D.C.L.R. in the pre-emption case she appeared and contended that the pre-emption case is immature because real transfer has not taken place and title has not passed to the defendants. 4. Defendant nos.1 and 2 filed contesting written statement. However, subsequently they compromised with the plaintiff admitting the plaintiff‟s claim that the full consideration amount was not paid. Pursuant to the compromise, the consideration amount of Rs.8,500.00 was returned to them. 5. The interveners-defendants-appellants appeared and filed a contesting written statement alleging that in fact full consideration amount had already been paid by defendant nos.1 and 2 which is clear from the recital of the sale deed. The right, Patna High Court SA No.476 of 2011 (5) dt.06-08-2013 3 title and possession already passed to the vendee through the sale deed as would be evident from the sale deed itself. Since the pre- emption application has already been allowed by the authorities under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 the suit filed by the plaintiff is barred under section 43 of the said Act. 6. The trial court recorded the finding that in fact full consideration amount was not paid by defendant nos.1 and 2 and that the suit is not barred under section 43 of the Ceiling Act. Accordingly, the plaintiff‟s suit was decreed. The interveners- defendants filed the appeal before the lower appellate court. The lower appellate court recording the same finding dismissed the appeal.
Legal Reasoning
7. The learned senior counsel Mr. Kamal Nayan Choubey submitted that in the sale deed itself it was mentioned that full consideration amount of Rs.28,500.00 was paid and title and possession was delivered to the defendants. Contrary to the said contents of the sale deed, the parties could not have adduced evidence or compromised in the suit alleging that in fact the defendants had not paid the full consideration amount. According to learned counsel, because a pre-emption order had already been passed by the D.C.L.R., which was confirmed by the appellate Patna High Court SA No.476 of 2011 (5) dt.06-08-2013 4 authority, to frustrate or to overreach the said order the present suit was filed by the plaintiff and defendant nos.1 and 2 conspired with the plaintiff. The learned counsel further submitted that before the authorities under the Ceiling Act the plaintiff contested the matter and alleged that title did not pass to the defendants because of non-payment of full consideration amount, which was negatived by the original court under the Ceiling Act as well as the appellate court. Therefore, that findings have become final between the parties and the said question again cannot be decided in the present suit. 8. It may be mentioned here that it is specific case of the plaintiff that he retained the original sale deed and the same was never handed over to the defendants. The defendant nos.1 and 2 compromised the case and have received the consideration amount paid by them i.e. Rs.8,500.00. The defendants are interveners in the suit. Their defence is that the plaintiff and defendant nos.1 and 2 have colluded. The full consideration amount was in fact paid by the defendants. It may be mentioned here that so far this defence of interveners-defendants is concerned, it is directly against the defence of defendant nos.1 and 2. Moreover, it is not the case of the interveners-defendants that in fact the sale deed was not retained by the plaintiff rather it Patna High Court SA No.476 of 2011 (5) dt.06-08-2013 5 was handed over to the defendants. When the parties to the sale deed agreed that in fact no full consideration amount was paid, the interveners-defendants, who are not party to the said sale deed, can not be allowed to say so. 9. So far the submission that in the sale deed it has been recited that the full consideration amount was paid and the title and possession were given to the defendants is concerned, in the case of Janak Dulari Devi and another vs. Kapildeo Rai and another, reported in (2011) 6 Supreme Court Cases 555, the Hon‟ble Supreme Court has held that as per the practice of ta khubzul badlain prevalent in Bihar i.e. title to the property passing to the purchaser only when there is exchange of equivalents. Where a sale deed recites that the entire sale consideration has been paid and possession has been delivered, but the registration receipt is retained by the vendor and possession of the property is also retained by the vendor, as the agreed consideration, either full or a part, is not received, irrespective of the recitals in the sale deed, the title would not pass to the purchaser, till payment of the entire consideration to the vendor and the registration receipt is obtained by the purchaser in exchange. So far this submission is concerned, this decision of the Hon‟ble Supreme Court is an answer to this Patna High Court SA No.476 of 2011 (5) dt.06-08-2013 6 submission. 10. So far the submission of learned counsel that the suit is barred under section 43 of the Ceiling Act is concerned, it may be mentioned here that the authorities under the Ceiling Act have no jurisdiction to decide the passing of title of the property. In the case of Horil vs. Keshav & Anr., reported in 2012 (2) B.L.J. 1 SC, the Hon‟ble Supreme Court has held that Revenue Courts are neither equipped nor competent to effectively adjudicate on allegations of fraud that has been overtones of criminality and the courts really skilled and experienced to try such issues are the courts constituted under the Code of Civil Procedure. Under section 9 of the Code of Civil Procedure the Civil Court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority. According to section 43 of the Ceiling Act, (1) „Save and except as provided in this Act no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Board of Revenues, the appellate authority or the Collector. (2) No order of the Board of Revenue, the appellate authority or the Collector made under this Act, shall be Patna High Court SA No.476 of 2011 (5) dt.06-08-2013 7 questioned in any court. Therefore, in view of the said provision, the jurisdiction of the Civil Court regarding passing of consideration or passing of title is not barred under the said Act. Here, the question decided by the courts below is of pure civil nature and it cannot be said that the question decided here was to be settled by the authorities under the Ceiling Act. In my opinion, therefore, both the courts below have rightly held that section 43 of the Ceiling Act does not bar the present suit. 11. Admittedly in this case the plaintiff came with a case that title did not pass to the defendants because of non- payment of full consideration amount. The defendant nos.1 and 2 although filed written statement but subsequently they filed compromise application. The interveners-defendants filed application under Order I Rule 10 of the Code of Civil Procedure for being added as party and their defence is contrary to the case of the plaintiff and defendant nos.1 and 2. In the case of Kasturi vs. Iyyamperumal and others, reported in (2005) 6 Supreme Court Cases 733, the Hon‟ble Supreme Court has held that from a plain reading of the expression “all the questions involved in the suit” used in Order I Rule 10 (2) of the Code of Civil Procedure it is abundantly clear that the legislature clearly meant that only the controversies raised as between the parties to the Patna High Court SA No.476 of 2011 (5) dt.06-08-2013 8 litigation must be gone into, i.e. to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiffs or the defendants inter se or questions between the parties to the suit and a third party. Therefore, in this case so far the point raised by the interveners-defendants is concerned, it is entirely not connected with the dispute between the plaintiff and the original defendant nos.1 and 2. The interveners defendants are 3rd party relating to the sale deeds in questions and their claim that the parties to suit colluded can not be decided. Likewise the compromise is void or it was done with a view to over reach the order of D.C.L.R. cannot be gone into. They have also not filed any counter claim. 12. In view of the above facts, the points raised by learned counsel for the appellants are not at all substantial questions of law. Therefore, in my opinion, no substantial question of law is involved in this Second Appeal and accordingly, this Second Appeal is dismissed at the stage of admission itself. (Mungeshwar Sahoo, J) Harish/-