Allowed

Indradeo Upadhyaya v. Kalika Choudhary

Patna HC14 May 2024SA/242/1988

Case brief

AI extract

What is this about?

The Patna High Court allowed a second appeal against a lower appellate decree that had set aside a 1965 auction sale. The Court held the original suit was barred under Section 34 of the Specific Relief Act because the plaintiffs sought only declaratory relief while being able to claim possession, and also barred under Order XXI Rule 92(3) CPC as a fresh suit could not be filed after the dismissal

What did the court decide?

Second Appeal allowed with costs of Rs. 5,000; judgment and decree of the lower appellate court set aside; auction sale dated 14.09.1965 in Execution Case No. 29/1963 affirmed.

Indradeo Upadhyaya Vs Kalika Choudhary — Execution and Attachment | Patna HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT PATNA SECOND APPEAL No.242 of 1988

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======================================================

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2.1. Saraswati Devi W/o Late Lallan Upadhyaya Resident of Village- Rakasian, P.O.- Kharari, Via- Nokha, Police Station- Sasaram, District- Rohtas.

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2.2. Shanti Devi D/o Late Lallan Upadhyaya Resident of Village- Rakasian, P.O.Kharari, Via- Nokha, Police Station- Sasaram, District- Rohtas.

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2.3. Kamla Devi D/o Late Lallan Upadhyaya Resident of Village- Rakasian, P.O.- Kharari, Via- Nokha, Police Station- Sasaram, District- Rohtas.

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2.4. Rita Devi D/o Late Lallan Upadhyaya Resident of Village- Rakasian, P.O.Kharari, Via- Nokha, Police Station- Sasaram, District- Rohtas.

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2.5. Punam D/o Late Lallan Upadhyaya Resident of Village- Rakasian, P.O.Kharari, Via- Nokha, Police Station- Sasaram, District- Rohtas.

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2.6. Indu D/o Lallan Upadhyaya Resident of Village- Rakasian, P.O.- Kharari, Via- Nokha, Police Station- Sasaram, District- Rohtas.

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2.7. Shakuntala Devi D/o Late Lallan Upadhyaya Resident of Village- Rakasian, P.O.- Kharari, Via- Nokha, Police Station- Sasaram, District- Rohtas.

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2.8. Brajbelas Upadhya S/o Late Lallan Upadhyaya Resident of VillageRakasian, P.O.- Kharari, Via- Nokha, Police Station- Sasaram, DistrictRohtas.

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2.9. Kamlesh Upadhya S/o Late Lallan Upadhyaya Resident of VillageRakasian, P.O.- Kharari, Via- Nokha, Police Station- Sasaram, DistrictRohtas.

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2.1 Shambhusaran Upadhya S/o Late Lallan Upadhyaya Resident of Village0. Rakasian, P.O.- Kharari, Via- Nokha, Police Station- Sasaram, DistrictRohtas.

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2.1 Nilesh Kr. Upadhya S/o Late Lallan Upadhyaya Resident of Village1. Rakasian, P.O.- Kharari, Via- Nokha, Police Station- Sasaram, DistrictRohtas.

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2.1 Radhey Shyam Upadhya S/o Late Lallan Upadhyaya Resident of Village2. Rakasian, P.O.- Kharari, Via- Nokha, Police Station- Sasaram, DistrictRohtas.

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... ... Appellant/s Versus

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Kalika Choudhary Son of Man Mohan Choudhary Resident of VillageRampur Naresh, P.O.- Kharari, Via- Nokha, P.S.- Agrer, District- Rohtas.

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Devendra Kumar Choudhary, Son of Ram Sagar Choudhary Resident of Village- Rampur Naresh, P.O.- Kharari, Via- Nokha, P.S.- Agrer, DistrictRohtas.

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Ramdei Devi, W/o Late Ram Chandra Choudhary Resident of VillageRampur, P.O.- Kharari, Via- Nokha, P.S.- Kargahar, District- Rohtas.

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4.1. Laxmi Devi W/o Kalika Prasad R/o- Vill. and P.O.- Basdiha, Via- Dinara, Dist.- Rohtas.

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4.2. Mandodari Devi W/o Rajbans Choudhary R/o- Vill. and P.O.- Basdiha, Via-

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Dinara, Dist.- Rohtas.

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4.3. Shivmuni Devi W/o Madhu Chaudhary R/o- Vill. and P.O.- Lalganj, Nokha, Dist.- Rohtas.

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4.4. Tara Devi W/o Brijali Chaudhary R/o- Vill.- Lewara, P.O.- Kharari, ViaNokha, Dist.- Rohtas.

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Lokai Choudhary, Son of Name not Known Resident of Village- Kathwatia, P.O.- Manipur, Via- Nokha, P.S.- Nokha, District- Rohtas.

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Ram Sagar Choudhary, Son of Ramchandra Choudhary Resident of VillageRampur Naresh, P.O.- Manipur, Via- Nokha, P.S.- Kargahar, DistrictRohtas.

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Udai Narain Choudhary, Son of Ramchandra Choudhary Resident of Village- Rampur Naresh, P.O.- Manipur, Via- Nokha, P.S.- Kargahar, District- Rohtas.

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Rajiya Devi, D/o Ramchandra Choudhary, Wife of Loknath Choudhary Resident of Village- Sisirita Tola, P.O.- Manipur, Via- Nokha, P.S.- Nokha, District- Rohtas.

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Fulesnwari Devi, D/o Ramchandra Choudhary, W/o Nagina Choudhary Resident of Village- Basdihan Tola, P.O.- Basdihan, Via and P.S.- Nokha, District- Rohtas.

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Rajkalia Devi, D/o Ramchandra Choudhary, W/o Bhairow Chaudhary, Rajmistri, Resident of Village- Hatta, P.O.- Hatta, P.S.- Chainpur, DistrictRohtas.

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Hira Lal Choudhary, Grand Son of Ramchandra Choudhary Resident of Village- Harbanspur, P.S.- Dinara, P.O.- Bhaluni, District- Rohtas.

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... ... Respondent/s

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================ Appearance :	==	====================================
For the Appellant/s For the Respondent/s ================	: : ==	Mr. S. S. Dwivedi, Sr. Advocate Mr. Parth Gaurav, Advocate Mr.Manu Shankar Mishra, Advocate Mr. Kumar Uday Singh, Advocate Mr. Akhouri Vipin Bihari Shrivastava, Adv. Ms. Patla Kumari, Advocate ====================================
CORAM: HONOUR	AB	LE MR. JUSTICE DR. ANSHUMAN ORAL JUDGMENT

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Date : 14-05-2024

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Heard learned Sr. Counsel for the appellants and

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learned counsel for the respondents.

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The present Second Appeal has been filed by the

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defendants-respondents-appellants against the judgement passed on 27.02.1988 and decree prepared on 14.03.1988 by the learned 6^th Additional District Judge, Rohtas in Title Appeal No. 88 of 1981 reversing and setting aside the judgement passed on 31.08.1981 and decree prepared on 10.09.1981, by the learned 3rd Additional Munsif, Sasaram in Title Suit No. 228 of 1968 by which the suit of the plaintiff-appellants-respondents was dismissed.

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Vide order No. 3 dated 29.01.1990, the following substantial questions of law were formulated at the time of admitting the present Second Appeal :-

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“(a) Whether the lower appellate Court has decided the appeal in a perfunctory way and has failed to consider the bar of the suit under the proviso of Section 34 of the Specific Relief Act and Order XXI Rule 92(3) of the CPC ?

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(b) Whether in view of the bar placed by Order XXI Rule 92(3) of the C.P.C., the lower appellate Court was legally entitled to consider the question of infirmity in publishing and conducting the sale ?”

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The plaintiff – appellant - respondent (Kalika Chaudhary, son of Manmohan Chaudhary and Devendra Chaudhary, son of Ram Sagar Chaudhary) had filed a Title Suit No. 228/1968 for declaration and setting aside the auction sale dated 14.09.1965 of the land described at the foot of the plaint,

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is void, nullity and the same is not binding upon the plaintiffs.

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The case of the plaintiff is that they and the

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proforma defendants are descendants of Ramgulam Chaudhary. The genealogy table of the family of Ram Gulam Chaudhary is as follows :-

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It has been mentioned that the suit properties are the ancestral property of Ram Gulam Chaudhary. His sons Ram

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Charitar Choudhary, Ayodhya Choudhary and Dukhi Choudhary. Ram Charitar Choudhary died issueless. Ayodhaya Choudhary had two sons, namely, Bhagwat Choudhary and Ram Chandra whereas Dukhi Choudhary had two sons namely, Yogendra Choudhary and Manmohan Choudhary. Son of Manmohan Choudhary is plaintiff No.1 and grand-son of Ram Chandra Choudhary is plaintiff No.2 and the other persons shown in the genealogy table are the proforma defendants in the suit. The property described in the Schedule of the plaint is situated at Mauza Rampur Naresh, Revenue P.S. No. 394, Tauji No. 7418, P.S. Karhgar, District Sahabad appertaining to Khata No. 138 Plot No. 463 total area 2 acre 17 decimals is the ancestral property of the plaintiffs whose cadastral survey has been recorded in the name of the common ancestor Ram Charitar Choudhary, Ayodhya Choudhary and Dukhi Choudhary. The plaintiffs further claimed that they are by caste n onia and belong to the backward class and come under the category of protected tenant under the Bihar Tenancy Act, 1885 (hereinafter referred to as the ‘B.T. Act’). The plaintiffs state that Manmohan Choudhary and Bhagwat Choudhary had

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executed a usufructuary mortgage in favour of Indradeo Upadhyay (defendant-respondent-appellant) without any authority on 16.06.1961 but the mortgagee did not come in possession of the said land by virtue of the said usufructuary mortgage (rehan). Said Manmohan Choudhary executed a kabuliyat patta in favour of Indradeo Upadhyay (present appellant) and agreed to pay actual rent for the suit land at the rate of Rs.605/- on 02.07.1961. In result, the suit land continued to be in possession of the proforma defendant. It has been pleaded in the plaint that the said rehan dated 16.06.1961 executed in favour of the appellant was illegal, void and inoperative, which is not binding upon the plaintiffsappellants-respondents. It has been stated that since the alleged mortgagor belongs to the backward class under the category of Protected Tenant under the B.T Act. Therefore,for the purpose of obtaining mortgage, permission from the Collector was mandatory but the present appellant had not taken any permission from the Collector. It has been stated that the said Manmohan Choudhary and Bhagwat Choudhary were not karta khandan and had no right to execute the rehan deed to the present appellant. It has been further stated that the present appellant has filed Rent Suit No. 2/1962 before the Munsiff- II,

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Sasaram on 18.04.1962 in which rent suit was decreed in favour of the present appellant on 18.01.1963, with a view to execute the decree, execution case was filed bearing Execution Case No. 29/1963 in which it was directed to make payment of the decree-holder in four equal installments in which three installments were paid but due to to non-payment of the last installment on 25.10.1964, the said land was auctioned sold which was purchased by the decree-holder (present appellant) on 14.09.1965. It has been mentioned that the plaintiff and the plaintiffs – appellants -respondents had filed Miscellaneous Case No. 126 of 1965 under Order XXI Rule 90 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) for cancellation of the auction in favour of the present appellant which was dismissed on 25.04.1966. Thereafter, the plaintiffappellant -respondents had preferred Miscellaneous Appeal No.19/2011 of the year 1966-67 before the 2nd Additional Subordinate Judge, Sasaram which was also dismissed on 27.02.1968. It has been further pleading that the said auction dated 14.09.1965 is illegal, void, ab initio as well as not binding on the plaintiffs-appellants-respondents. It has been further pleaded that the said auction sale was void and nullity, therefore, they informed the defendant-respondent-appellant to accept the

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sale deed nullity and provide the possession of the land in dispute to the plaintiff-appellant-respondent but it has not been accepted by the defendant - respondent -appellant, due to which the cause of action for filing the suit has arisen.

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Whereas the case of the defendant-respondentappellant is that Manmohan Choudhary and Bhagwat Choudhary were the Karta of the family and had legal and valid rights to represent the family. They have executed two sale deeds in favour of Rajpati Upadhyay and thereafter, executed a usufructuary mortgage ( rehan ) in his favour for payment of the antecedent debt. Rajpati Upadhyay was in possession of the suit land and after Indradeo Upadhyay, rehan mortgagee in his favour became in possession.

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However, the case of the present appellant pleaded in the title suit is that no permission was required to be claimed either for the execution of the mortgage deed or Partition Suit property in Court by auction sale. Manmohan Choudhary and Bhagwat Choudhary were more negligent in making the payment of four installments. They were provided fresh opportunities but when they failed to do so, the said property was auctioned sold in favour of the decree holder. It has been stated that in the Written Statement, eight decimals of

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suit land were acquired as it was part and parcel of a karha and the remaining suit land in his possession. The further case of the defendant-respondent-appellant is that the common ancestor Ram Chand Choudhary died during pendency of the suit and the successor was the proforma defendant whereas the case of defendant -respondents -appellants is otherwise.

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In this appeal, there are two appellants. Original appellant No.1, Indradeo Upadhyay was defendant No.1 in the suit whereas original appellant no.2 Lalan Upadhyay was the intervenor defendant of this suit. Both have filed their different sets of written statements and the rest defendants have filed their joint written statements. Subsequently, their names were struck off from the title suit vide order dated 04.06.1970 and 15.09.1970. In respect thereof, one of the legal heirs of proforma defendants, Ram Chandra Chaudhary, has contested the suit. The defendant-respondent-appellant no.1 through his written statement and additional written statement pleaded that the genealogy table given by the plaintiff is not correct. It has been pleaded that the plaintiffs and the proforma defendants are not protected tenants. The proforma defendants by setting of the plaintiffs had filed the suit on false allegation. It has been submitted that the suit has been contested by the proforma

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defendants behind the back of the plaintiff. It has been specifically pleaded that defendants No. 2 and 3 (Bhagwat Chaudhary and Manmohan Chaudhary ) are karta of the respective family. The father of plaintiff Nos. 1 and 2 and the proforma defendants were not addicted of taking wine. They did not execute any kind of title in the case of intoxication. The land of Schedule -’ Ka’ was not the ancestral property of the plaintiffs and proforma defendants. In the execution of the rent suit filed for auction sale, delivery of possession has been made in favour of answering defendant Indradeo Upadhyay, as Bhagat Chaudhary and Manmohan Chaudhary executed two rehan deeds on 16.06.1961 in favour of defendant No.1 (present appellant No.1) for payment of the antecedent debt of Rajpati Upadhya for which they had already executed two rehan deeds dated 09.01.1957 and other for Rs.1000/- in faovur of one Rajpati Upadhyay. It has been mentioned that Manmohan Choudhary and Bhagwat Choudhary had executed a rehan in favour of Rajpati Upadhyay to pay the antecedent debt due on three hand notes which are mentioned in rehan deeds. It has also been mentioned that another rehan deed for Rs.1,000/- in favour of Rajpati Upadhyay was to pay hathpheri deed and also to purchase of

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bullock the above rehan deeds in favour of Rajpati Upadyyay and defendant Indradeo Upadhyay were executed by both Manmohan Choudharyand Bhagirathi Choudhary and karta of the joint family. Rajpati Upadhyay came into possession of Schedule ‘Ka’ property by virtue of rehan deeds and thereafter the defendant Indradeo Upadhyay after redemption of rehan deeds of Rajpati Upadhyay by defendant No.1 Manmohan Choudhary and Bhagwat Choudhary has executed a kabuliyat on 02.07.1961 as karta and representative of the family for one year. Stipulating to pay 60 and ½ mannas of paddy. Prior to the execution of kabuliat Rajpati Upadhyay came in possession as mortgagee. The mortgages in favor of Indradeo Upadhyay are not illegal rather they are legal, valid with consideration and they are given legal effect also. There was no need to get permission from the Collector for the execution of mortgage deeds. It has been specifically pleaded that in the execution proceeding which arises out of the rent suit. The judgement-debtors were allowed to pay the balance amount in installments which they failed to pay and subsequently, the suit property was allowed to be auctioned sold in favour of the decree-holder and finally sale was confirmed after exhausting all processes. The said decision was done properly and at an

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adequate price. The said decision was void and legal and it is binding upon the plaintiffs as well as proforma defendants of the suit. For the decree passed in Title Suit No. 228/1968, execution case was filed bearing Execution Case No. 29/1963 and in which auction sale made in favour of the present appellant and to set aside the said auction sale Miscellaneous Case No . 126 / 1965 filed it was dismissed thereafter Misc Appeal No . 19 / 2011 was filed which was also dismissed. Thereafter, title suit No 128/1968 was filed.

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Defendant Lalan Upadhyay who is presently sole appellant No.2 and now his heirs and legal representatives are contesting the present appeal after his death pleaded in the suit that original plaintiffs, Kalika Chaudhary and Devendra Kumar Chaudhary were minor and unless they declared to be major by amending the plaint, the suit is not maintainable. The old survey Plot 463 under Khata 138 had been given as New Plot 1330 area 97 decimals and new Plot No.1340 area 1 acre 65 decimals under new Khata 112 and the same is shown two Acres 62 decimals. It has also been mentioned that both the new plots and the portion of land measuring 8 decimals out of Plot No. 463 have been acquired by the canal department for which compensation was paid to the present appellants. It has been

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stated that the suit land was gifted in favour of the intervening defendants on 03.07.1980 and after execution of the said gift deed, intervening defendants are coming into possession. It has been submitted that Indradeo Upadhyay had possession over two acres and 70 decimals of land but after the construction of the canal and after execution of gift deeds, the intervening defendants had possession over only 2 acres and 62 decimals of land and rent receipts as well as water receipts for the disputed land had been granted for the yeas 1963-64, 1964-65 and 196566 by to the defendant Ramsagar Chaudhary @ Ram Sagar Singh on 25.07.64, but on 16.09.67, the same were handed over to the defendant Inderdeo Upadhyay. It has also been stated that this intervenor defendant has also adopted the pleadings of written statement filed by defendant Inderdeo Upadhyay.

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The pleadings of other defendants of the suit had pleaded that the alleged mortgage which is now under the provision of Section 12 of the Bihar Money Lenders Act stands redeemed. The defendant's 1st party had acknowledged the possession over the disputed land of proforma defendant Ram Chandra Chaudhary as malik after the enforcement of the Money Lender Act. The decree-holder of the rent suit did not obtain the permission of the Court to purchase the disputed land

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in the auction sale. The alleged auction sale had not been legally confirmed as there being no hearing. Manmohan Choudhary did not execute the kabuliat and agreement under his signature and L.T.I. If the plaintiff and the defendant 1^st party had obtained the signature and L.T.I. by setting of any third person, the same is not binding on them as it is a breach of trust as well as void. The defendant's 1^st party never got title and possession over the suit land. The possession of deceased Ram Chander Choudhary along with other co-sharers has been coming continuously with due knowledge of the defendant's 1^st party, the alleged purchaser in the auction sale, and in this way, the defendants have perfected their title over the suit land by adverse possession. In the above circumstances, it should be declared that the defendant 1st party is guilty of breach of trust and these defendants have title and possession over the suit land. With these pleadings, the following issues were framed by the original Court, as under :-

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“(i) Is the suit, as framed, maintainable? (ii) Have the plaintiffs got any cause of action or right to sue?

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(iii) Whether the suit is barred by law of limitation, waiver, estoppel, and acquiescence.

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(iv) Whether the suit is hit by the provisions of section 34 of the Specific Relief Act?

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(v) Whether the suit is bad for misjoinder and non-joinder of party ?

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(vi) Whether the Court auction sale dated 14.09.1965 is illegal, invalid, and based on fraud? If not i.e. binding upon Ramchander Chaudhary (since dead) and his legal heirs as well as plaintiffs?

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(vii) Whether Manmohan Chaudhary and Bhagwat Chaudhary jointly executed the Rehan deeds in favour of Rajpati Upadhyay and later on in favour of Inderdeo Upadhyay in respect of Schedule ‘Ka’ land, for payment of antecedent debt out of intoxication?

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( viii ) Whether Manmohan Choudhary executed a kabuliat in favour of Inderdeo Upadhyay out of intoxication?

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(ix) Whether plaintiffs and other proforma defendants are joint or separate in mess and cultivation and re-coming in possession over the suit land having title?

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(x) Whether the suit is hit by the

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provisions of res judicata?

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(xi) Whether the plaintiff is entitled to a decree as claimed for?

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(xii) To what other relief or reliefs, if any, the plaintiffs are entitled?”

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The trial Court at the time of deciding the issues had decided issue no. 9, that the plaintiffs and the proforma defendants Nos. 2 to 10 are jointly headed by Manmohan Choudhary and Bhagwat Choudhary. It has been specifically held in the title suit that the plaintiff and proforma defendants were in the possession of the suit property and this statement is claimed in paragraph 9 of the plaint in which the

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plaintiff has specifically pleaded that they requested the defendants Inderdeo Upadhya and Lalan Upadhyay to return back the possession but no effect. Issued Nos. 7-8 was decided that Manmohan Chaudhary and Bhagwat Kumar Chaudhary executed the rehan deed and kabuliyat out of intoxication. Issue No.6 has been decided by the Court as the auction sale dated 14.09.1965 is not illegal, invalid or fraud. Issue Nos. 3 and 10 have been decided that there is no limitation or res judicata that has arisen in the present suit. Issue No.5 has been decided that this does not suffer from mis-joinder or nonjoinder. Issue No. 4 has been decided that the present suit is hit by the provisions of Section 34 of the Specific Relief Act as the plaintiff has failed to include the further relief of setting aside the decree of rent suit and recovery of possession available to them and this issue is decided against the plaintiff. It has been held that issue nos. 1, 2, 3 not pressed. Issue No. 11 and 12 have been decided that there is no negligent material irregularity or fraud in the Court of sessions. In result, the suit was dismissed with the contest with defendants (present appellant Inderdeo Upadhyay and Lalan Upadhyay) and proforma defendants Hiralal Chaudhary and others).

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Being aggrieved and dissatisfied with the

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judgment and decree, passed on 31.08.1981 and prepared on 10.09.1983 by 3^rd Additional Munsiff, Sasaram in Title Suit No. 128/1968, the plaintiffs – judgment debtor- appellants preferred an appeal against the original decree which was numbered as Title Appeal No. 88 of 1981. The appellate Court with a view to decide appeal has framed the following points for a determination as under :

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“(1) Was the auction sale in favour of Inderdeo Upadhya, principal defendants, dated 14.09.1965 void abinitio and not operative upon the plaintiffs-appellants ?

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(2) Are the impugned judgment and decree fit to be set aside?”

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The appellate court has allowed the title appeal and held that the auction sale and consequent proceedings based on the certificate of sale in the execution case are all illegal and invalid. In the light of the judgment rendered in the case of Bhageran Thakur, Vs. Kewal Singh reported in 1969 PLJR 30 Full Bench . According to this Hon’ble Full Bench struck down section 49 C of the B.T. Act but did not make any order as to the illegality of Section 49 M. Therefore, Section 49M is very much on the statute book and has to be given effect to. According to the appellate Court, Bhageran

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Thakur’s case (supra) was decided on 20.12.1968 and the amendment has come in Bihar Gazette Extraordinary on 07.02.1969.

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According to the appellate Court, section 49 M of the B.T Act cuts at the roots of the sale of the suit land in Execution Case No. 29 of 1963 and is, therefore, fit to be declared void ab initio. On the question of possession, thus the appellate Court held that delivery of possession over the suit land was affected in accordance with law and the principal defendants-decree holders in the execution case got proper transaction. In result, title appeal was allowed and the auction sale dated 14.09.1965 and Execution Case No. 29 of 1963 has been declared void, ab initio, and nullity and possession were declared in favour of the plaintiff – appellant and not in favour of the defendant respondents of the title appeal.

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Against the said judgement and decree dated 27.02.1988 and 04.04.88 passed and prepared by the 6^th Additional District and Sessions Judge, Rotas at Sasaram, in Title Appeal No. 88 of 1981, the present Second Appeal has been preferred by defendant-respondents-appellants and the Hon’ble 2^nd Appellate Court had framed two substantial questions of law with a view to decide appeal which are

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as follows :-

On the point of deciding the first substantial question, learned Sr. Counsel for the appellant submits that the provisions of section 35 of the Specific Relief Act 1963 and Order XXI Rule 92(3) of the CPC are necessary to be looked into. According to learned Sr. Counsel for the appellant, in paragraph no. 9 of the plaint, the plaintiff -appellate-contesting defendants has pleaded that demand of possession for land in question from the defendant had been made but he refused. From the relief portion of the plaint, it becomes crystal clear that no relief for possession was sought by the plaintiff and only a prayer for declaration with regard to the auction sale was demanded. This pleading is present in the judgemnt of the trial

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Court.

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The appellate Court at the time of deciding title appeal has not been set aside or reversed the findings of the original court. Therefore, it is a concurrent finding of fact and in this view of the matter, the suit had clearly barred under the provisions of Section 34 of the Specific Relief Act and relief can be granted.

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In this regard, learned Sr. Counsel for the

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appellant has relied on a judgement rendered by Hon’ble Supreme Court in the case of Union of India Vs. Ibrahimuddin and Others reported in (2012) 8 SCC 148 whose relevant paragraphs are 55 to 58. According to which, no relief can be granted on this point, in favour of the plaintiff -appellantdefendant because the suit itself was barred under the provisions of Specific Relief Act, 1963.

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Learned Sr. Counsel for the appellant further relied on the bar created by law. According to the provisions laid down under Order XXI Rule 92(3) of the CPC 1908. Learned Sr. Counsel for the appellants submits that the auction sale was made in Execution Case No. 29/1963 vide order dated 25.04.66, arising from judgement and decree dated 18.01.1963 passed in Rent Suit NO. 2/1962. The said auction sale was challenged in

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Miscellaneous Case No. 126/65 dismised on 25.04.1966. Said Miscellaneous Case was challenged in Miscellaneous Appeal No.19/2011 of 1966-67 which was dismissed on 27.02.1968. Thereafter, the said auction sale cannot be opened by way of challenging in fresh suit particularly when the plaintiffs were majour and they are karta of the family and have been already party to the execution case, miscellaneous case, and miscellaneous appeal. In this regard, learned Sr. Counsel for the appellants placed further reliance on the judgement rendered in the case of Mutthusamy Udayar Vs. Pichaiammal and Others reported in AIR 1986 Madras 300. Specific reliance has been made on paragraph 2 of the said judgement. According to which, the root of the suit and the very institution of the suit is bad in law. Learned Sr. Counsel for the appellants further submits that the issue raised by the respondent on this appeal relates to deciding the appeal by framing another substantial question of law, learned counsel submits that in the exercise of power under Section 100 (5) of the CPC, it is well within the power of the appellate Court to frame further substantial question of law then it is a matter between the appellant and the Court.

¶114

Learned Sr. Counsel for the appellant further

¶115

Patna High Court SA No.242 of 1988 dt…14-05-2024 22/34

¶116

advanced his argument by submitting that the plea of the respondent to provide an opportunity to him in the light of Section 49 M of the BT Act is absolutely unsustainable in the eye of the law due to the reason that at the time of filing of a petition under Order XXI Rule 90 CPC for setting aside the sale and non raising of such question which they ought to be raised either at the original level or at the appellate level and non raising such question at that time invokes the bar of constructive res judicata . Learned Sr. Counsel for the appellants has relied on a judgement in support of his claim decided by a Five Judges Bench in the case of Baidyanath Prasad Sah Vs. Ramphal Sahay and Others reported in AIR 1962 patna 72 in which it has been held that, this question cannot be considered at a later stage of the execution, if it was not raised soon after service of notice under Order XXI Rule 22 of the CPC. In light of the above submissions, the appellant submits that both the substantial question of law may be decided in favour of the appellant and there is no need of framing further subsequent substantial question of law as this question cannot be raised at a later stage and suffers from the defect of constructive res judicata.

¶117

Learned Sr. Counsel for the respondent on

¶118

Patna High Court SA No.242 of 1988 dt…14-05-2024 23/34

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the other hand primarily raised the issue of applicability of Section 49M of the BT Act. According to him, the plaintiffs belong to the backward class of the BT Act therefore in the light of the Full Bench’s decision rendered in the case of Bhageran Thakur’s case (supra) which has only struck down section 49 C of the B.T. Act which did not make any order as to the legality or otherwise of Section 49 M of the BT Act, which still remains effective and therefore sale proclamation in execution is necessary to be decided in this case. Learned counsel submits that the decree for arrears of rent has been executed clearly against the provisions of Section 49 M of the Bihar Tenancy Act, and is barred under Order XXI Rule 92(3) of the CPC. Learned counsel further submits that the principle of res judicata will not apply in such cases. He submits that the principle of res judicata is a procedural provision and a jurisdictional question if wrongly decided will not attract the principles of res judicata . Thus when an order is passed without jurisdiction, the same becomes a nullity and when an order is nullity, it cannot be supported by invoking procedural principles like estoppel, waiver or r e s judicata .

¶120

In this regard, learned counsel further relied on the judgement rendered in the case of Ashok Layland Ltd.

¶121

Patna High Court SA No.242 of 1988 dt…14-05-2024 24/34

¶122

Vs. State of Tamil Nadu and Another reported in AIR 2004 SC 2836;; 2004(3) SCC 1, Dwarka Prasad Agarwal (D) by L. Rs. And another Vs. B.D. Agarwal and Others reported AIR 2003 SC 2686 ; Ramnik Vallabhdas Madhvani and Others vs. Taraben Pravinlal Madhvani reported in AIR 2004 SC 1084 , AIR 1979 SC 193, 1979 (2) SCC 34.

¶123

Learned counsel for the respondent also submits that the provision of Section 34 of the Specific Relief Act has no applicability in the present case as the auction sale of the suit land dated 14.09.1965 has been done by the executing court in Execution Case No. 29/63 particularly when the said sale is set aside by the learned appellate court on the ground that it was void, ab initio and is a nullity and the judgement debtors or whose family became automatically entitled to restitution of the suit lands under Section 144 of the CPC. He also relied on the explanation made in Section 144 of the CPC inserted in the CPC by C.P.C. (Amendment) Act, 1976 which declares that in express terms restitution is available even in cases where a decree or order is set aside or modified in another subsequent suit filed in another court for that purpose.

¶124

Learned counsel for the respondent submits that in the light of the submissions made by him, the present

¶125

Patna High Court SA No.242 of 1988 dt…14-05-2024 25/34

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Second Appeal is fit to be dismissed as neither question of specific relief act is available to the appellant nor the question bar in the light of Order XXI Rule 92(3) of the C.P.C. is available to him and those substantial questions be decided in favour of the respondents.

¶127

After hearing the parties and upon going through the documents, it is necessary to quote the provisions of law laid down under Section 34 of the Specific Relief Ac, as under :-

¶128

“34. Discretion of court as to declaration of status or right.—Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

¶129

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

¶130

Explanation.—A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.”

¶131

Patna High Court SA No.242 of 1988 dt…14-05-2024 26/34

¶132

This Court further fells it necessary to quote

¶133

Section 49M of the Specific Relief Act, 1963 as under :-

¶134

“Grounds on which under-raiyats, without occupancy right may be ejected :-

¶135

An under-raiyat may be ejected by his landlord from land in which he has not already acquired a right of occupancy in accordance with the provision of section 48-C]1 on one or more of the following grounds and not otherwise, namely:.--

¶136

(a) on the ground that he has failed to pay an arrear of rent;

¶137

(b) on the ground that he has used the land in a manner which renders it unfit for the purposes of the tenancy, or that he has broken a condition consistent with this Act and on breach of which he is under the terms of a contract between himself and his landlord, liable to be ejected;

¶138

(c) where he has been admitted to occupation of the land under a written lease on the ground that the term of the lease has expired.

¶139

2[(d) where he holds the land of any person mentioned in clause (ii) of the proviso to sub-section (i) of section 48 C, on the ground that the status of the raiyat mentioned in the said clause has changed and the raiyat intends to cultivate the land personally.]”

¶140

Patna High Court SA No.242 of 1988 dt…14-05-2024

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27/34

¶142

This Court also feels it necessary to quote

¶143

Order XXI Rule 92 of the CPC as under :-

¶144

“92. Sale when to become absolute or be set aside. -(1) Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute: [Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.

¶145

(2)Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within [sixty days] from the date of sale, [or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale] Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

¶146

[Provided further that the deposit under this sub-

¶147

Patna High Court SA No.242 of 1988 dt…14-05-2024

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28/34

¶149

rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.]

¶150

(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

¶151

[(4) Where a third party challenges the judgment-debtor's title by filing a suit against the auction purchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit.

¶152

(5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court otherwise directs, be revived at the stage at which the sale was ordered.]

¶153

Upon bare reading of Section 49 M of the B.T. Act, 1985, it becomes crystal clear that the said provision has been inserted in the B.T. Act by virtue of substitution made by an amendment in the B.T. Act (Act 10 of 1976) This litigation has been started in the year 1962 by the filing of rent suit decreed in the year 1963. Execution was filed in the year 1963 and auction sale was made in the year 1965. Miscellaneous Case

¶154

Patna High Court SA No.242 of 1988 dt…14-05-2024 29/34

¶155

for setting aside the auction sale was made in the year 1965 and it was dismissed in the year 1966. Miscellaneous Appeal was filed in the year 1966-67 and it was dismissed in the year 1968. Meaning thereby, everything relating to the present case had taken place prior to insertion of Section 49 M in the B.T. Act. That came in the year 1976.

¶156

As well as in the light of Five Judge Bench decision in case of Baidyanath Prasad Sah Vs. Ramphal Sahay and Others reported in AIR 1962 Patna 72 , it has been held that questions cannot be considered at later stage. Here, in the present case such question has not been raised in execution proceeding at the time of auction sale, in Misc. Case in Misc. appeal and respondent lost all then by way of filing fresh suit, they had raised their plea which they ought to be raised earlier and hence, their such pleading shall be barred by the principles of construtive res judicata.

¶157

1. In this view of the matter, this Court is of the firm view that there is no applicability of Section 49 M of the B. T. Act in the present case. Therefore, this Court hereby decides this present appeal by virtue of only the substantial question of law which has already been framed.

¶158

32.With a view to decide the first substantial

¶159

Patna High Court SA No.242 of 1988 dt…14-05-2024 30/34

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question of law , it is necessary to quote paragraph 9 of the plaint, which states as follows :-

¶161

“9. ;g fd cs;kukr lnj ls lkQ tkghj gS fd uhyke etdwj fcYdqy uktk;t void oks nullity gSsaA blfy, okjgka eqnk0 vly ls dgk oks dgyok;k fd otjh;s fdlh uohLrk ds uhyke etdwj dks jí oks okrhy djkj fdft;s oks n[ky dCtk lkfod nLrwj ge eqnbZ;ku dks release dj nhft;s ysfdu eqnk0 eksrotg ugha gq;s fd ukScr ukfy’k gktk dh gqbZA”

¶162

This Court further feels it necessary to quote the

¶163

relief portion of the plaint as follows :-

¶164

“nknjlh

¶165

1. ;g fd crtcht veqjkr eqUnjts vjthnkoh ;g declare fd;k tk;s fd uhyke ejdqes rkjh[k 14-061965 o;kuh;k lnj fcYdqy uktk;t void oks nullity gS ftldh dksbZ ik;oUnh dkuwuu [kkgbUlkQu ugha gks ldrh gS

¶166

2. ;g fd [kpkZ eqdnek gktk eqnk0 ls fnyk

¶167

fn;k tk;sA

¶168

3. ;g fd fnxj nknjlh ftlds eqLrgd eqnbZ;ku fuTn vnkyr le>s tk;s eqnky; ls fnyk fn;k tk;sA”

¶169

Upon bare perusal of paragraph 9 of the pleading

¶170

as well as the relief, it became crystal clear that the plaintiff has sought declaratory relief only whereas in paragraph 9 of the plaint, it has been specifically pleaded that recovery of

¶171

Patna High Court SA No.242 of 1988 dt…14-05-2024 31/34

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possession has been sought from the contesting defendants which has not been provided. Then the present suit has been filed but in the said suit, relief for recovery of possession has not been made. In this view of the matter as well as in light of the decisions rendered in the case of Union of India Vs. Ibrahimuddin and Others reported in (2012) 8 SCC 148 which clearly states that “Section 35 of the Specific Relief Act provides that the Courts have discretion as to declaration of status or right. However, it carves out an exception that a Court shall not make any such declaration of status or right where the complainant, being able to seek further relief that a mere declaration of title, omits to do so. Thus, it is not permissible to claim the relief of declaration without seeking consequential relief.”

¶173

Hence, in the light of the statements of the pleadings and relief of the plaint and upon bare reading of Section 34 of the Specific Relief Act, 1963, it transpires to this Court that suit for declaration of auction sale to be set aside has been filed and the respondent - plaintiff and the plaintiffappellant-respondents was admittedly not in the possession of the suit property. Thus the suit was barred by the provisions of Section 34 of the Specific Relief Act and therefore, the suit

¶174

Patna High Court SA No.242 of 1988 dt…14-05-2024 32/34

¶175

ought to be dismissed solely on this ground. Whereas, the respondent raised that Section 144 of the CPC provides help to the plaintiff -appellant -respondent and once the substantial question shall be decided in favour of the respondent, then restoration of possession shall automatically come in favour of them.

¶176

This Court is of the firm view that when the suit itself is bared from the principles of Section 34 of the Specific Relief Act then there is no question of raising any further plea and hence, this Court hereby decides the first substantial question of law in favour of the present appellant and held that due to the pleading made in paragraph 9 and the relief mentioned above in the plaint, the suit itself was not maintainable and barred according to the provisions of Section 34 of the Specific Relief Act, 1936.

¶177

So far as the second substantial question of law, i.e. whether Order XXI Rule 92(3) of the C.P.C. creates any bar to the lower appellate court and whether the lower appellate court was illegally entitled to consider the question of infirmity in publishing and conducting the same. To answer this substantial question, it is necessary to place the background of this case, i.e. a Rent Suit No. 2/1962 was filed by the present

¶178

Patna High Court SA No.242 of 1988 dt…14-05-2024 33/34

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appellant in which judgment and decree have come on 18.01.1963. For the execution of the said judgement and decree, Execution Case No. 29/63 was filed and in the said execution case, the subject matter of the present suit was auction sold vide order dated 14.09.1965. For setting aside the said auction sale, Miscellaneous Case No. 126/1965 was filed and it was dismissed on 25.04.1966, which was subsequently challenged in Miscellaneous Appeal and it was numbered as Miscellaneous Appeal No. 19/2011 of 1966-67 but it was again dismissed on 27.02.1968. Against which, no further revision or appeal has been filed before any higher Court and the said decision acquired finality. But the present plaintiff-appellant-respondent had filed a fresh Title Suit No. 128/1968 which was dismissed on 31.08.1981 against which title appeal was filed bearing Title Appeal No.88/1981. It was allowed in favour of the plaintiffappellant-respondent vide judgement and decree dated 27.02.1988 and 04.08.1988 respectively. Thereafter, the present Second Appeal has been filed. The provision of Order XXI Rule 92(3) of the CPC clearly states that “No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.”

¶180

By this provision, it became crystal clear that

¶181

Patna High Court SA No.242 of 1988 dt…14-05-2024 34/34

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filing suit has become barred according to law and as such, the second substantial question has also been decided in favour of the present appellant. As such, the judgemnt and decree dated 27.02.1988 and 14.03.1988 passed and prepared by 6th Additional District Judge, Rohtas in Title Appeal No. 88/1981 is hereby set aside.

¶183

This Court hereby directs that either under the provision of Section 34 of the Specific Relief Act or under the provisions of Order XXI Rule 92(3) of the CPC. The suit filed by the plaintiff-appellant -respondent is barred and hence, the present plaintiff -appellant-respondent has no case at all. The order passed in Execution Case 93/1963 in which auction sale of the land in question in favour of the present appeal dated 14.09.1965 is hereby affirmed.

¶184

In result, the Second Appeal is allowed with a cost of Rs. 5000/-.

¶185

(Dr. Anshuman, J)

¶186

Ashwini/-

¶187

AFR/NAFR	AFR
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Uploading Date	14/05/2024
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Indradeo Upadhyaya v. Kalika Choudhary

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Indradeo Upadhyaya v. Kalika Choudhary

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