Allowed

Rekhraj v. Additional District Judge NO.3

Rajasthan HC7 Aug 2019CW/1419/2019

Case brief

AI extract

What is this about?

This High Court quashed the trial court's order rejecting an application to frame additional issues in a property dispute. The Court held that the issues framed did not adequately cover the conflict between a registered gift deed in favor of petitioners and an agreement to sell executed subsequently by the property owner.

What did the court decide?

The impugned order dated 7.1.2019 rejected under Order XIV Rule 5 CPC is quashed and additional issues 12 and 13 are framed.

Rekhraj Vs Additional District Judge NO.3 — Specific Performance | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Writ Petition No. 1419/2019

¶3

Rekhraj S/o Shri Madanlal Ji Kachhawa, Aged About 42 Years, By Caste Mali R/o House No. 82, Income Tax Colony, Imartiya Bera, Paota C Road, Jodhpur (Raj.).

¶4

Sumer Singh S/o Shri Madanlal Ji Kachhawa, Aged About 41 Years, By Caste Mali R/o House No. 82, Income Tax Colony, Imartiya Bera, Paota C Road, Jodhpur (Raj.).

¶5

Manmohan S/o Shri Madanlal Ji Kachhawa, Aged About 38 Years, By Caste Mali R/o House No. 82, Income Tax Colony, Imartiya Bera, Paota C Road, Jodhpur (Raj.).

¶6

----Petitioners

¶7

Versus

¶8

Additional District Judge No.3, Jodhpur Metropolitan 2. Roshanlal Kachhawa S/o Shri Madanlal Ji Kachhawa, By Caste Mali R/o House No. 82, Income Tax Colony, Imartiya Bera, Paota C Road, Jodhpur (Raj.).

¶9

Smt. Kalawati W/o Shri Roshanlal Kachhawa, By Caste Mali R/o House No. 82, Income Tax Colony, Imartiya Bera, Paota C Road, Jodhpur (Raj.).

¶10

State Of Rajasthan, Through Collector, Jodhpur.

¶11

Police Commissioner, Police Commissionerate, Jodhpur.

¶12

Smt. Choti Devi W/o Late Sh. Madanlal Kachhawa, By

¶13

Caste Mali R/o Maliyon Ki Gali, Udaimandir, Jodhpur.

¶14

----Respondents

¶15

For Petitioner(s) : Mr. Om Mehta For Respondent(s) : Mr. OP Boob

¶16

JUSTICE DINESH MEHTA

Judgment

07/08/2019

(2 of 7)

[CW-1419/2019]

The present writ petition is directed against the order dated 7.1.2019 passed by the learned Addl. District Judge No.3, Jodhpur Metropolitan, Jodhpur (hereinafter referred to as the learned trial Court), vide which petitioners’ application dated 4.7.2018 filed under Order XIV Rule 5 of the Code of Civil Procedure 1908, has been rejected.

¶22

Briefly narrated the facts appertain to the present writ petition are that the plaintiffs (petitioners herein) filed the suit for possession on the basis of a gift deed dated 14.3.2012, executed in their favour by late Madan Lal Kachhawaha. In the suit so filed by the plaintiffs, the defendants having possession of the property filed a counter claim seeking declaration of ownership asserting that they have procured rights, interest and title in the property by virtue of a sale deed dated 5.4.2012, which has been executed in their favour in furtherance of an agreement to sell dated 1.12.2005 and sought protection of their possession.

¶23

On the basis of the pleadings of the parties, following issues came to be framed by the learned trial Court on 2.4.2018:

¶24

“1vk;k Lo- Jh enuyky th us oknxzLr Hkw[kaM la- 82 ij o’kZ 1989 esa ry eafty dk fuekZ.k dk;Z djok;k ,oa o’kZ 2002 esa cSad ls _.k izkIr dj izFke eafty dk fuekZ.k dk;Z djok;k \ --- oknhx.k

¶25

2- vk;k oknxzLr edku ij LVsV cSad vkQ bafM;k flVh czkap tks/kiqj ls tks _.k fy;k x;k Fkk] mldk Hkqxrku Lo- Jh enuyky }kjk o’kZ 2010 rd fd;k x;k \ --- oknhx.k

¶26

3- vk;k Lo- Jh enuyky us oknhx.k ds i{k esa fnukad 143-12 dks fx¶V MhM fu’ikfnr dj jftLVMZ djok nh vkSj oknxzLr lEiw.kZ tk;nkn dk dCtk oknhx.k dks lqiqnZ dj fn;k rc ls oknhx.k oknxzLr tk;nkn ds ekfyd gS \ --- oknhx.k

¶27

(3 of 7) [CW-1419/2019]

¶28

4- vk;k izfroknh la- 1 fnukad 15-3-12 dks oknxzLr edku ds rkys rksM+dj izFke eafty ij dkfct gks x;k \ --- oknhx.k

¶29

5- vk;k Lo- Jh enuyky }kjk izfroknh la- 1 o 2 ds i{k esa fu’ikfnr fd;s gq, nLrkost fnukad 1-12-05 QthZ ,oa dwVjfpr gS tks izfroknh la- 1 us fo”okl dk nq:i;ksx djrs gq, Lo- Jh enuyky ls cuok;s rFkk fnukad 1-1205 dks fu’ikfnr cspku bdjkjukek lk{; esa xzkg~; ugha gS\ --- oknhx.k

¶30

6- vk;k oknhx.k izfroknhx.k ds fo:) LFkk;h fu’ks/kkKk izkIr djus ds vf/kdkjh gS \ --- oknhx.k

¶31

7- vk;k Lo- Jh enuyky us oknxzLr edku dk iw.kZ izfrQy izkIr djus ds i”pkr izfroknh la- 1 ds i{k esa fnukad 1-12-05 dks cspku bdjkjukek o olh;rukek ,oa izfroknh la- 2 ds i{k esa vke eq[R;kjukek fu’ikfnr fd;k \ --- izfroknhx.k

¶32

8- vk;k Lo- Jh enuyky }kjk izfroknh la- 1 o 2 ds i{k esa fu’ikfnr nLrkostkr ij oknh la- 2 o 3 us lgh ekurs gq, lgefr ds rkSj ij lk[ksa Mkyh ,oa oknhx.k mijksDr nLrkostkr dks pqukSrh nsus ls ,LVksIM (ESTOPPED) gS \ --- izfroknhx.k

¶33

9- vk;k Lo- Jh enuyky }kjk izfroknh la- 1 o 2 ds i{k esa fu’ikfnr nLrkostkr ds i”pkr mudks oknhx.k ds i{k esa fx¶V MhM jftLVMZ djokus o dCtk lqiqnZ djus dk dksbZ vf/kdkj ugha Fkk \ --- izfroknhx.k

¶34

10vk;k izfroknh la- 1 o 2 }kjk tokcnkos esa of.kZr rF;kas ds vuqlkj oknhx.k dksbZ lgk;rk izkIr djus ds vf/kdkjh ugha gS \ --- izfroknhx.k

¶35

11vk;k Lo- Jh enuyky }kjk izfroknh la- 2 ds i{k esa fu’ikfnr vke eq[R;kjukek ds vk/kkj ij izfroknh la- 2 ds i{k esa fnukad 5-4-12 dks foØ; i= jftLVMZ gks pqdk gS ,oa izfroknh la- 1 foØ; i= o olh;r ds vk/kkj ij oknxzLr edku dk vdsyk ekfyd gS rFkk oknhx.k ls

¶36

(4 of 7)

¶37

[CW-1419/2019]

¶38

fookfnr ifjlj dk dCtk izkIr djus dk vf/kdkjh gS \

¶39

---- izfroknhx.k

¶40

12vuqrks’k \”

¶41

After framing of the issues on 4.7.2018, the petitioners filed an application under Order XIV Rule 5 of the Code of Civil Procedure and prayed that additional issues be framed in light of their pleadings, particularly, keeping their stand into consideration that since Late Madan Lal Kachhawa had gifted the property by way of registered gift deed dated 14.3.2012 to the plaintiffs, the right flowing from the agreement to sell dated 5.4.2012 has extinguished and, thereafter, the power of attorney holder could not execute the sale deed in favour of the defendants. It was also prayed that an issue be also framed, in view of the fact that “a suit for declaration is not maintainable simply on the basis of an agreement to sell”.

¶42

The petitioners’ application aforesaid under Order XIV Rule 5 of the Code of Civil Procedure has been rejected by the learned trial Court, vide its order dated 7.1.2019, inter alia, observing that the issues nos.9 and 11 already framed by the trial Court takes care of the plaintiffs’ concern. While rejecting petitioners’ application, the learned trial Court has made a reference of the order dated 14.3.2012, passed by this Court in proceedings emanating from rejection of his application under Order VII Rule 11 of the Code of Civil Procedure filed with respect to defendants’ counter claim.

¶43

Mr. Mehta, learned counsel for the petitioner oopuning the order under consideration argued that the petitioners’ basic stand before the learned trial Court has been that they are having valid title, interest and right in the property in furtherance of a

¶44

(5 of 7)

¶45

[CW-1419/2019]

¶46

registered gift deed executed by late Madan Lal Kachhawa, the owner of the property and hence, their title and interest is superior to the rights of the defendants, which was based on an agreement to sell.

¶47

He admitted that though a sale deed has been executed in favour of the defendants by the power of attorney holder Smt. Kalawati W/o Roshan Lal (respondent no.3 herein), but the same cannot be given credence over the valid title in favour of the petitioners conferred by owner of the property viz., late Sh. Madan Lal Kachhawa. He further argued that the counter claim filed by the defendants – respondents was essentially a suit for declaration of title based upon agreement to sell, which is impermissible in the eyes of law, inasmuch as an immovable property can be transferred only by way of registered document, and not by way of agreement to sell.

¶48

On the other hand, Mr. Boob, learned counsel for the respondents supported the order passed by the learned trial court and contended that the issues nos.9 and 11 as framed by the learned trial court takes into its sweep all the question involved in the case, including the pleadings and concern of the petitioners. He further argued that in the teeth of the finding recorded by this Court in its order dated 14.3.2012, the plaintiffs- petitioners contention is untenable, inasmuch as this Court has observed that the gift deed, which is gratuitous in nature, does not confer any right upon the plaintiffs.

¶49

I have heard learned counsel for the parties and perused the material available on record.

¶50

Looking to the pleadings of the parties, more particularly in view of the fact that the owner of the property namely, late Sh.

¶51

(6 of 7)

¶52

[CW-1419/2019]

¶53

Madan Lal Kachhawa had transferred the property to the plaintiffs – petitioners, vide a registered gift deed dated 14.3.2012, the issue raised by the plaintiffs – petitioners becomes of a significant importance.

¶54

The facts are not in dispute that the sale deed in favour of the defendant no.1 has been executed on 5.4.2012, i.e., after execution of the sale deed in plaintiffs’ favour on 14.3.2012. That apart, the said sale deed had been executed by the wife of the defendant no.1, Smt. Kalawati (defendant no.2) being a person in whose favour a power of attorney had been executed alongwith the agreement to sell dated 1.12.2005.

¶55

The facts highlighted hereinabove goes to the root of the matter and the learned trial court is required to pronounce upon these issues raised by the plaintiffs.

¶56

As far as issues nos.9 and 11 as framed by the learned trial court are concerned, they simply take into account one side of the story, inasmuch as these issues will bring to fore only as to whether the gift deed dated 14.3.2012 in favour of the plaintiffs was valid or not and/or as to whether the owner of the property late Madan Lal Kachhawa had power to gift the property to the plaintiffs in the teeth of the agreement to sell dated 1.12.2005.

¶57

In this view of the matter, I am of the considered opinion that the learned trial court has seriously erred in rejecting petitioners’ application dated 4.7.2018 filed for framing additional issues, under Order XIV Rule 5 of the Code of Civil Procedure. The impugned order suffers from manifest error of law and wrongful exercise of jurisdiction, so vested in the court.

¶58

The order dated 7.1.2019 is, therefore, quashed and set aside. The following additional issues are framed as issues nos.

¶59

(7 of 7)

¶60

[CW-1419/2019]

¶61

12 and 13 and issue no.12 as framed by the learned trial court shall be substituted as issue no.14:

¶62

“¼12½ vk;k cspku bdjkjukek fnukad 1-12-2005 ds vk/kkj ij okafNr ?kks"k.kk dk vuqrks"k iks"k.kh; gS\

¶63

¼13½ vk;k enuykyk }kjk c['kh’kukek fnukad 14-03-2-012 ds fu"iknu ds mijkUr] izfroknh la[;k&2 dks vius gd esa vke eqf[r;kj ukes ds vk/kkj ij izfroknh la[;k&1 dks oknxzLr lEifr ds ckcr fodz; i= fnukad 5-4-2012 fu"iknu rFkk iath;u djokus dk vf/kdkj Fkk\”

¶64

The writ petition is allowed accordingly.

¶65

The stay application also stands disposed of accordingly.

¶66

(DINESH MEHTA),J

¶67

136-CPGoyal/-

Rekhraj v. Additional District Judge NO.3

Case brief

What is this about?

What did the court decide?

Rekhraj v. Additional District Judge NO.3

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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