AppellantVersusParween Sultana Abdul Rauf Takeand others.. RespondentsShri S v. Natu
Legal Reasoning
1 sa 179.25IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 179 OF 2025Shivanand Dhulappa Mathpati.. AppellantVersusParween Sultana Abdul Rauf Takeand others.. RespondentsShri S. V. Natu, Advocate h/f Shri A. A. Joshi, Advocate for the Appellant.Shri Satish S. Manale, Advocate for the Respondent Nos. 1 to 3.CORAM :SHAILESH P. BRAHME, J.CLOSED FOR ORDER ON:30.07.2025ORDER PRONOUNCED ON:20.08.2025.FINAL ORDER :.Heard both sides.2.The present appeal is emanating from the proceedingsunder Order XXI Rule 97 of the Code of Civil Procedure (for thesake of brevity and convenience hereinafter referred as to the‘C.P.C.’) in Regular Darkhast No. 07 of 2022. It is contended bythe appellant that his objection U/O XXI Rule 97 of the C. P. C.was summarily rejected by the Executing Court, which wasconfirmed by the lower Appellate Court and he wanted to leadevidence. One of the possibilities was remand of the matter to theExecuting Court. I made it clear to the parties to decide it 2 sa 179.25finally, instead of admitting the appeal. I have heard both sidesat length.3.The respondent Nos. 1 to 3 are original plaintiffs cumdecree holders. The respondent Nos.4 to 8 are the originaldefendants cum judgment debtors. The parties are referred asper their original status in Spl. C. S. No. 164 of 2008.4.Plaintiffs had filed Spl. C. S. No. 164 of 2008 for possession,mesne profit and mandatory injunction of demolition of the houseof the defendant Nos. 4 and 5. The defendants contested thesuit. It was partly decreed by the Trial Court on 29.09.2011. Thesuit was substantially dismissed, hence plaintiffs preferredR.C.A. No. 220 of 2012. It was partly allowed vide judgmentdated 20.08.2019, directing the defendants to deliver vacantpossession of 10R land as shown in the measurement map atExhibit 102 by demolishing constructions of the defendant Nos. 4and 5. A decree of mesne profit was also passed. Plaintiffslodged R. D. No. 07 of 2022 against the defendants. Appellant –Shivanand filed application at Exhibit 22 U/O XXI Rule 97 of theC. P. C. It was rejected by the executing court on 15.02.2025.Being aggrieved, R.C.A. No. 38 of 2025 was filed, which was alsodismissed on 27.03.2025.5.In the present second appeal substantial questions of lawrecorded by this Court vide order dated 05th May, 2025 arepressed into service and argued by the learned counsel Mr.
Legal Reasoning
3 sa 179.25Sharad V. Natu by the appellant. It is contended by theappellant that he purchased a plot No. 2 admeasuring 1653.75square feet of gut No. 93 by registered sale deed dated04.02.2008 from his wife Mahadevi. He and his predecessor intitle were not party to the earlier litigation. If the decree isexecuted, he will be dispossessed. It is contended that he hasindependent right, title and interest, which needs adjudicationby the executing court.6.Learned counsel Mr. Sharad Natu submitted thatapplication Exhibit 32 was decided summarily without extendingopportunity to lead evidence and in slipshod manner. There isviolation of principles of natural justice. It is argued that he isnot bound by the decree and his right, title and interest have notbeen decided in earlier round of litigation. It is furthercanvassed that he is entitled to defend the decree independentlybecause the defendant No. 3, who is purchaser in title failed totake necessary stand and pleas in suit. Therefore, objectivescrutiny needs to be undertaken, which is not done by both theCourts below. It is contended that appellant is bonafidepurchaser for value without notice.7.Per contra, learned counsel Mr. Manale, for the respondentNos. 1 and 2 submitted that both the Courts concurrentlydecided against the appellant and no substantial question of lawarises in the appeal. It is submitted that appellant was aware ofearlier litigation. He was fence sitter. As he did not take timely 4 sa 179.25steps against his predecessor in title, especially the defendantNo. 3 – Ramrao. His immediate predecessor in title is his ownwife Mahadevi. It is vehemently contended that when defendantNo. 1 – Ramlal had no salable title, alienation by him in favour ofthe defendant No. 3 – Ramrao and further alienation are bad inlaw. Plaintiffs have acquired title of 41R of land vide sale deeddated 24.10.1996 executed by the defendant No. 1 – Ramlal intheir favour, which is prior in time. It is contended thatappellant is not a bonafide purchaser.8.The defendant No. 1 – Ramlal Tiwari was owner of landgut No. 93 admeasuring 9H 34R situated at village Arvi, Tq.Latur. He alienated different parcels of his land to the parties tothe litigation, which gave rise to the litigation. Following are thematerial events, which need consideration.Sr. No.DateEvents01.24.10.1996Sale deed executed by defendant No. 1 -Ramlal to the plaintiffs.02.01.06.1996Sale deed executed by defendant No. 1 –Ramlal to the defendant No. 3 - Ramrao03.16.02.2004Sale deed executed by defendant No. 3 –Ramrao to Mahadevi.04.04.02.2008Sale deed executed by Mahadevi to theappellant.05.22.09.2008Filing of Spl.C.S. No. 164 of 2008.06.29.09.2011Judgment passed in Spl. C. S. No. 164 of2008.07.20.08.2019Judgment passed in R.C.A. No. 220 of2012. 5 sa 179.259.Neither appellant, nor his predecessor in title, his own wifeMahadevi were party to Spl. C. S. No. 164 of 2008 and R.C.A. No.220 of 2012. But Mahadevi’s predecessor in title was defendantNo. 3 – Ramrao. Admittedly, sale deed executed on 24.10.1996by the defendant No. 1 – Ramlal in favour of the plaintiffs for41R out of gut No. 93 is prior in time. All other sale transactionsfrom the said gut number are subsequent.10.Plaintiffs purchased 41R of land from gut No. 93 from theoriginal owner i. e. defendant No. 1 – Ramlal vide registered saledeed. Interestingly, the defendant No. 3 – Ramrao PandurangPatil was the attesting witness to the sale deed. As it wasregistered sale deed it can be presumed that public at large hadnotice of the transaction. Thereafter, defendant No. 1 – Ramlalsold part of the land to the defendant No. 3 – Ramrao.11.Defendant No.3 Ramrao in turn sold 1655 square feet areato appellant’s wife Mahadevi on 16.02.2004. Then Mahadevi soldthat area to the appellant on 04.02.2008. The vendor ofdefendant No.3 and inter alia appellant had no saleable title.Because already defendant No.1 Ramlal had alienated 41 R. ofland to the plaintiffs.12.Both Courts below have recorded concurrent findings offacts that sale deed dated 24.10.1996 is prior in time and has notbeen questioned by anybody. By implication of Section 48 of 6 sa 179.25Transfer of Property Act, the subsequent alienations are of noconsequences. Thus, rights of subsequent purchasers would notco-exists with the rights or the interest created in favour of theplaintiffs. There is no perversity in the findings recorded byCourts below. 13.The plea of the appellant that he was bonafide purchaserfor value and without notice has also been examined by bothCourts below. In view of Section 48, sale deed dated 24.10.1996issued in favour of the plaintiffs would prevail. It is difficult tocomprehend that appellant or Mahadevi or defendant No.3 werenot aware of earlier sale transaction. Being registered sale deed,the public at large is presumed to have notice of sale deed24.10.1996. Subsequent transferee ought to have conducted duesearch of title before purchasing part of the suit land. They hadevery occasion to learn that defendant No.1 Ramlal had nosaleable title. In the absence of due inquiry and search, thesubsequent transferee are not bound to succeed on precious pleaof bonafide purchaser. 14.It is relevant to notice that defendant No.3 Ramrao wasattesting witness of sale deed dated 24.10.1996. Despite that, hepurchased part of Gut No.93 from defendant No.1 on 01.06.1996and further endeavoured to transfer the same to Mahadevi.When Court Commissioner was measuring the suit land,appellant and his wife Mahadevi were present for themeasurement. It has come on record that defendant Nos.2 to 5 7 sa 179.25are friends of original owner defendant No.1 Ramlal. Theconduct of the appellant and defendants is doubtful and theycannot be said to be innocent purchasers.15. The remedy of the appellant is not to take recourse toOrder 21 Rule 97 of the C.P.C. He should have taken actionagainst defendant Nos. 1 and 3. His in action creates doubt overhis claim. No case is made out to show that he has independentright and title in the suit land. The decree passed in favour of theplaintiffs has become final and has to be executed. 16.Appellant has to blame himself for not conducting propersearch of title before purchasing the land from the person whohad no saleable interest. Now, it is not open for him to obstructthe execution with a plea that he could have defended the suitfiled by the plaintiffs on the grounds which were not agitatedeither by defendant No.1 or defendant No.3. He was takingchances. He is guilty of lapses. Now, he has to suffer theconsequences. I am of the view that no case is made out forcausing any interference in the orders passed by Courts below.It is an abuse of process of law to resort to Order 21 Rule 97 ofthe C.P.C. The plaintiffs are waiting for possession of 10 R. landsince judgment of Lower Appellate Court passed on 20.08.2019. 17.Learned counsel Mr. Natu seeks to rely on followingjudgments :(a)Gaurihar Baburao Batane and others Vs. Ashok 8 sa 179.25Banudas Gajare and another ; 2000 SCC OnLine Bom 220.If a case is made out by the objector then the procedurecontemplated under Rule 101 would be followed. The ratiocannot be interpreted to mean that no sooner than objection israised in execution by third person entire procedurecontemplated by Rule 101 or 105 has to be followed withoutexamining independent right of objector. It is distinguishable onfacts. (b)Nusserwanji E. Poonegar and others Vs. Shirinbai F.Bhesania and others ; 1984 SCC OnLine Bom 6. Thisjudgment will also not help the appellant. The facts aredistinguishable from the case at hand. It is not that everyobjection received in execution would be treated to be one underOrder 21 Rule 97 and it is mandatory to undertake objectivescrutiny as per Rule 101. 18.Learned counsel Mr. Manale has relied on the judgment inthe case of Kaushik Premkumar Mishra and another Vs.Kanji Ravaria @ Kanji and another ; 2024 AIR (SC) 3766.It is useful to refer paragraph No.35 which is as follows :“The doctrine of bona fide purchaser for value applies insituations where the seller appears to have some semblance oflegitimate ownership rights. However, this principle does notprotect a subsequent purchaser if the vendor had alreadytransferred those rights through a prior sale deed. In a casewhere the vendor deceitfully executes a second sale deed 26years after the initial transfer, without disclosing the earlier 9 sa 179.25transaction and without any ongoing litigation regarding theproperty, the subsequent purchaser cannot claim the benefits of abona fide purchaser. Essentially, if the vendor's rights werealready severed by the first sale, any later sale deed madewithout transparency and in bad faith is invalid. The subsequentpurchaser, even if unaware of the prior sale, cannot beconsidered bona fide because the vendor no longer had the legalright to sell the property. Thus, the protection afforded by thebona fide purchaser doctrine is nullified by the vendor's deceitfulconduct and the pre-existing transfer of rights. This ensures thatthe original purchaser's rights are upheld and prevents unjustenrichment through fraudulent transactions.”Both Courts below have rightly referred to above ratio and Iconcur with their view. 19.The substantial questions of law which are posed forconsideration before me are found to be meritless. Hence, secondappeal is dismissed. [ SHAILESH P. BRAHME J. ] bsb/Aug. 25