Keshav Singh vs Guruttar Grih Nirman Sahkari Samiti Ltd. and Others

Anil Sharma, J.—The appellant has filed this appeal u/s 96 of CPC against the order dated 30/08/2011 passed by 10th Additional District Judge, Gwalior, District Gwalior (MP) in MJC no. 7/2010, allowing the application filed under Order 21 Rule 97 CPC by the respondent No. 1 Guruttar Grih Nirman Sahkari Samiti Ltd. Gwalior. Succinctly stated facts of the case are that respondent no. 4 Lochan Prasad Katare was the owner of the land which was subject matter of civil suit no. 23-A/06 and executed an agreement to sale in favour of the appellant and other respondents whereby he agreed to alienate the suit property and there after, as the sale deed was not executed, civil suit no. 23-A/06 was filed which was decreed on 31/07/2006. The respondent no. 1 / Society got executed a sale deed in its favour by Lochan Prasad Katare by playing fraud and against this fraud itself Lochan Prasad Katare filed a civil suit no. 62-A/09 on the ground that the sale deed has been got executed by society wrongly by playing fraud and without payment of consideration but during pendency of the present proceedings, suit was withdrawn vide order dated 22.12.2010 by Lochan Prasad Katare in collusion with respondent no. 1 society. Thereafter, an application under Order 21 Rule 97 CPC was filed by the respondent no. 1 Society for a relief that the society is not bound by the judgment and decree dated 31.7.2006 passed in civil suit no. 23-A/06 and the learned trail court without considering the mala fide on the part of the respondents and collusion in between Society and Lochan Prasad Katare, erred in allowing the application. Therefore, the appellant has preferred this appeal.

The appellant has filed this appeal on the ground that the learned trial court is not justified in holding that possession cannot be taken on the execution of decree passed in civil suit no. 23-A/06 from the respondent no. 1.

The main question for consideration in this appeal is whether the learned trial court is justified in passing the impugned order by allowing the application filed by the respondent no. 1 under Order 21 Rule 97 CPC.

Learned counsel for the appellant has submitted that the application under Order 21 Rule 97 CPC read with section 151 CPC has been filed through President of the respondent no. 1 Society Smt. Omlata. Ex.P/1 is the authority letter authorizing Ravindra Agrawal for filing complaint on behalf of the society against Lochan Prasad Katare who has executed agreement for selling his half share by agreement Ex.P/6 dated 13.12.2000. It is further submitted by learned counsel for the appellant that no specific portion has been given to the respondent Society. It is further alleged that there is no record produced by the society before the learned lower court regarding payment of money to the seller. Since, the society is a registered society and maintains the account, therefore, how funds are collected and how the payment was made was required to be proved by the society as the account of the society is subject to audit every year, therefore, in the absence of any evidence regarding payment of consideration, the alienation in favour of the respondent society is void.

Learned counsel for the appellant has further submitted that the appellant has entered into an agreement for sale of disputed property with Lochan Prasad on 23.2.1999 after payment of Rs. 5 lacs and society has purchased the same property by registered sale deed dated 13.2.2000 on the basis of registered agreement for sale dated 19.1.2000 which was after the agreement executed by Lochan Prasad Katare in favour of the appellant.

It is further submitted by learned counsel for the appellant that Lochan Prasad Katare has filed civil suit no. 62-A/ 09 in the court of learned 3rd Additional Judge to the court of First Additional District Judge, Gwalior for declaration and permanent injunction alleging that the agreement and sale deed executed in favour of respondent Guruttar Grih Nirman Sahkari Samiti Ltd. is forged and fake, therefore, Lochan Prasad Katare entered into a compromise with the defendants including the respondent Society on 22.12.2010 and got his suit dismissed.

Learned counsel for the appellant has further submitted that the application filed by the respondent Society under Order 21 Rule 97 read with section 151 CPC on 6.4.2007 and after that civil suit has been filed by Lochan Prasad Katare against the respondent society and by conspiracy they have got the civil suit no. 62-A/09 dismissed on the basis of compromise during pendency of the application filed under Order 21 Rule 97 CPC. Even Lochan Prasad Katare who has filed his affidavit in support of respondent society did not appear in cross examination and in his affidavit of examination-in-chief he has given consent for declaring the judgment and decree by filing an application under Order 21 rule 97 null and void. The said judgment and decree has been passed in civil suit no. 23-A/06 on 31.7.2006.

Learned counsel for the respondent society has submitted that the question of consideration cannot be raised by the appellant and there is registered sale deed in favour of the respondent society mentioning possession of land sold to the society and thereafter, the name of the society has been entered into Bhu-Adhikar and Rin-Pustika Ex.P/7, therefore, the learned trial court is justified in passing the impugned order and there is no ground in appeal.

Learned counsel for the appellant has submitted that there is no authority letter in favour of Ravindra Agrawal. Ex. P/1 does not bear seal of the society. Further, there is no copy of proposal and minutes of the society authorizing Ravindra Agrawal for conducting the case for giving evidence. It has been admitted by Ravindra Agrawal that he is enrolled with the society in the year 2007 and he has no knowledge what happened earlier before he joined the society.

Judgment and decree dated 31.7.06 passed in civil suit no. 23-A/06 has been passed on the basis of compromise between the plaintiff who is appellant herein and Lochan Prasad Katare who is defendant in the suit after due verification by recording statement of Lochan Prasad Katare and it was Lochan Prasad who had filed civil suit no. 62-A/09 against the respondent society and others for declaring his title and permanent injunction and Lochan Prasad who has filed his affidavit of examination-in-chief in support of respondent society has not entered into witness box for cross examination, therefore, adverse inference against the respondent society should have been drawn by the learned lower court while considering the question of setting aside of judgment and decree after verification by recording statement of parties including Lochan Prasad. Further, there is no evidence regarding payment of consideration by the society to Lochan Prasad Katare as no record of account has been filed by the society. Ravindra Agrawal who appeared in witness box on behalf of the society was having no knowledge regarding transaction of the society before the year 2007. Even, he was not having personal knowledge of execution of agreement and sale deed in favour of his society.

Learned counsel for the appellant has drawn attention towards the provision of Section 44 of the Transfer of Property Act which is reproduced hereinbelow:-

Transfer by one co-owner-"Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor''s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

Learned counsel for the appellant has cited judgment of the Hon''ble Apex court in the matter of Gajara Vishnu Gosavi Vs. Prakash Nanasahed Kamble and Others, , in which it has been held that "considering the provision of Sections 44 and 8 of the Transfer of Property Act that the property having two parts not formally partitioned by metes and bounds, whether vendee of one part can claim possession of the part purchased by him, of two parts, one occupied by K and M each, one part belonging to K purchased by appellant, dispute regarding possession of said part arose between appellant and legal heirs of M. Appellant filed civil suit seeking declaration and injunction against legal heirs of M. Concurrent findings of fact that partition had never been given effect to in respect of suit property. Held, "in the absence of partition of property by metes and bounds, either by decree of a court in a partition suit, or by settlement among the co-sharers, possession cannot be handed over to vendee."

Learned counsel for the appellant has submitted that even if the agreement or sale deed executed in favour of Lochan Prasad Katare be taken, the possession of said property cannot be handed over to Guruttar Grih Nirman Sahkari Samiti and his name cannot be mutated on specific portion unless there is partition of the suit property between Lochan Prasad and his other family members.

Learned counsel for the appellant has further cited judgment of this court in the matter of Basant Kumar Gaur Vs. Suggamal and Another, , in which it has been held that "Principle of lis pendens does not apply to a lis pendens transferee, who has made purchase under his preexisting rights.

Learned counsel for the respondent society on the other hand has submitted that after the sale of land in favour of Guruttar Grih Nirman Sahkari Samiti by registered sale deed, he is not saleable right to sell the said property or to enter into compromise regarding the said property. He has cited judgment of this court in the matter of Om Prakash Soni and another v. Rajmal Jain, 1999 (2) Vidhi Bhasvar 115 in which it has been held that u/s 55 of the Transfer of Property Act, 1882, vendor having no saleable right purchaser acquires none even if the property is sold to him."

Learned counsel for the respondent has further submitted that the decree obtained by the appellant in civil suit no. 23-A/06 is a collusive decree, therefore, the learned lower court has rightly dismissed the said judgment and decree. In this regard, he has further cited judgment of this court in the matter of Pran Singh v. Bankelal 1999 (2) MPWN SN 195 in which it has been held that "where under Order 23 Rule 3 CPC, collusive suit for declaration of title, defendant having no saleable interest but transferring property in compromise, compromise and suit rightly dismissed." It is further held that "collusive suit for declaration of title, rightly dismissed.

Learned counsel for the respondent no. 1 society has raised an objection that out of three defendants appeared before the trial court, only one has preferred the appeal and other two are proforma parties and the appeal has not been preferred by all the respondents, therefore, in the absence of any challenge in appeal by other respondents, the appeal is not maintainable. The order passed by the learned trial court has been challenged by one of the defendants before it and if the order has been passed without proper application of facts and evidence then non-filing of appeal by some of the defendants does not make the appeal not maintainable and if the order is set-side, benefit of it will go to all the defendants.

In the present case, Lochan Prasad Katare has entered into an agreement with the appellants earlier then the respondent society. The transfer of undivided share does not give possession of suit land to the respondent. Further, neither the payment of sale amount / consideration has been proved by the respondent society which is under legal obligation to maintain the account and audit of every year nor there is evidence that specific portion has been obtained by them by partition of suit land and further, even if, there is some shadow of doubt on the judgment and decree passed in civil suit no. 23-A/06, the matter before the learned executing Court under Order 21 rule 97 CPC has not been proved by the respondent society as no person from the society has entered into witness box who has seen the witnesses. Transaction took place between both the parties in the year 1999 till 2006 there is no evidence of payment of consideration to the seller. Further, Lochan Prasad Katare has not been produced for cross examination by the appellant, therefore, the affidavit filed by him in examination-in-chief in the absence of cross examination has no evidentiary value and for setting aside the decree under Order 21 Rule 97 CPC, a cogent proof for setting aside a decree is required which has not been produced by the respondent society before the trial court. Therefore, in the absence of reliable and cogent evidence, the order passed by the learned trial court allowing the application under Order 21 Rule 97 CPC is not sustainable. Therefore, the appeal is allowed and impugned order dated 30/08/2011 passed by 10th Additional District Judge, Gwalior, District Gwalior (MP) in MJC no. 7/2010 is hereby set-aside. The respondent no. 1 society shall bear his own costs as well as costs of the appellant. Counsel fee, if pre-certified, be calculated according to rules. Decree be drawn accordingly.