Second Appeal No.1002 of 2006

21st January, 2008

Petitioner Counsel: Shri. B. R. WARMA
Respondent Counsel: Shri. GIRISH RANE

Cases Cited:
Suraj Rattan Thirani Vs. Azamabad Tea Co. Ltd., AIR 1965 SC 295 [Para 5]
M/s. Parasram Harnand Rao Vs. M/s. Shanti Parsad Narinder Kumar Jain, AIR 1980 SC 1655 [Para 5]
M/s. Chanana Steel Tubes Pvt. Ltd. Vs. H.P.S.I.D.C., AIR 2003 Himachal Pradesh 36 [Para 5]
Keshrimal Jivji Shah Vs. Bank of Maharashtra, 2004(3) Mh.L.J. 893 [Para 7]
Surjit Singh Vs. Harbans Singh, AIR 1996 SC 135 [Para 8]

JUDGMENT

JUDGMENT :- This is an appeal by the original defendant no.4 challenging the judgment and decree passed by the Additional District Judge, Amalner on 15-4-2006 thereby partly allowing the appeal preferred by the appellants/original plaintiffs.

2. Appellant/original defendant no.4 is purchaser of the suit property from defendant no.1 deceased Harkchand Sancheti. Regular Civil Suit no.80/1980 came to be instituted by the plaintiffs seeking partition and possession of the agricultural land gat no.93 admeasuring 4 H 10 R situated at village Dapore, Tq. Amalner, Dist. Jalgaon contending that the said suit property is joint family property of the plaintiff, defendant no.1 and Defendant no.2 Uttamchand, and they were jointly cultivating the said land. It is contended that said suit claiming partition and separate possession came to be dismissed in default. Miscellaneous Application no.5/86 for restoration of said suit came to be rejected by trial court on 27-1-1988. Miscellaneous civil application challenging order in Miscellaneous Civil Application no.5/86 also came to be dismissed on 8-9-1997. After first round of litigation was over plaintiff again demanded partition by serving notice on 23-2-1988. However, the same request was not considered. Therefore he had to file instant suit being Regular Civil Suit no.39/86. Defendant no.4 who has purchased the suit property under sale-deed dt.6-6-1980 from Harakchand has been added as party vide application at exh.13. The plaintiff claims 1/3rd share in the suit property.

3. The legal representatives of deceased Harakchand resisted the suit by filing written statement. It is their contention that deceased Harakchand was exclusive owner of the suit land and as such the plaintiff had no right, title or interest in the suit land. It is further contended that the suit bearing Special Civil Suit no.5/62 was filed in the court of Civil Judge, S.D., Dhule and in pursuance to the agreement arrived at between the parties in the said suit, the property was delivered in possession of deceased Harakchand. It is contended that deceased Harakchand had faught litigation and obtained possession of the suit property in execution of the darkhast. It is denied that the property belongs to joint family. However, it is contended that deceased Harakchand was the exclusive owner and possessor of the suit property.

4. The trial court framed several issues. So far as the issue in respect of ancestral nature of the property is concerned, the trial court as well as the appellate court were concurrent on the point that the property is joint family property. So also there is finding recorded by the courts below that the defendant Harakchand had not acquired ownership of the suit property by virtue of the decision in previous litigation. However, the trial court dismissed the suit holding that the defendant no.4 is a bonafide purchaser for value without notice. The said judgment and decree in respect of dismissal of suit was subject matter of challenge before the lower appellate court. The lower appellate court has reversed the decree holding that defendant no.4 cannot be treated to be bonafide purchaser of the property. By maintaining all other findings recorded by the trial court, the lower appellate court decreed the suit to the extent of 1/3rd share allottable to the plaintiffs.

5. Shri. Warma, learned counsel for the appellants has vehemently contended that in view of dismissal of previous suit which was filed by plaintiff in default, and also, dismissal of restoration application by the Additional District Judge, Amalner, the instant suit filed by the plaintiff is barred by virtue of provisions of Order 9, Rule 9 of the Code of Civil Procedure. The lower appellate court has held that the cause of action in respect of partition suit is continuous. The appellant has placed reliance on the judgment between Suraj Rattan Thirani Vs. Azamabad Tea Co. Ltd. reported in AIR 1965 SC 295 as well as decision rendered by the Apex court in the matter of M/s. Parasram Harnand Rao Vs. M/s. Shanti Parsad Narinder Kumar Jain reported in AIR 1980 SC 1655. The appellant has contended that in view of dismissal of the earlier suit in default as well as dismissal of the application for restoration of earlier suit, the present suit is barred by provisions of Order 9, Rule 9, r/w section 11 of the Code of Civil Procedure. Learned counsel for the respondents has placed reliance on reported judgment in the matter of M/s. Chanana Steel Tubes Pvt. Ltd. Vs. H.P.S.I.D.C. reported in AIR 2003 Himachal Pradesh 36.

6. The learned counsel for the appellant has invited my attention to all the grounds referred to in the memorandum of appeal filed by him and contended that he has raised almost ten grounds which involve substantial question of law. In normal course, this court would have considered the contentions raised by the appellant. However, in my view this is not a fit case to cause any interference in this matter at the instance of the appellant who is a purchaser of the property during continuance of the prohibitory orders those were passed by the trial court. It is admitted by the parties at bar that the purchase of property by defendant no.4 from deceased Harakchand was during continuance of the order of injunction passed by the trial court against said Harakchand. The learned counsel has further invited my attention to the fact that an application was tendered against deceased Harakchand for taking action against him for flouting the order of injunction which is considered by the court below favourably and he was asked to be kept in civil prison.

7. It is evident that purchase of the property by defendant no.4 was during continuance of the prohibitory orders. Learned counsel for the respondents has invited my attention to the judgment in the matter of Keshrimal Jivji Shah Vs. Bank of Maharashtra reported in 2004(3) Mh.L.J. 893. In para no.26 of the judgment, it has been observed by the Division Bench of this court as below :-

"26. We cannot accept Shri. Nephade's contention that observations of the Supreme Court in the case of Surjeet Singh should be read as restricted to proceedings under Order 22, Rule 10 of Civil Procedure Code and the same cannot be extended to defiance of injunction order issued under Order 39, Rule 1 of Civil Procedure Code. Once the issue is placed on the pedestal of public policy and the very faith of litigants in Rule of law and administration of justice, then it is not possible to make the distinction or bifurcation suggested by Shri. Naphade. It would mean that consequences of nullifying such transaction not being provided by the Statute, it would not lose its legal efficacy even if it is in utter disregard to or in violation of or breach of prohibitory order or order of injunction issued by a Court of law. It would mean that parties can breach and violate Court orders openly and with impunity and neither they nor the beneficiaries suffer any consequences. It is time that we recognise the principle that transfer of immovable property in violation of an order of injunction or prohibition issued by Court of law, confers no right, title or interest in the transferee, as it is no transfer at all. The transferee cannot be allowed to reap advantage or benefit from such transfer merely because he is not party to the proceedings in which order of injunction or other prohibitory direction or restraint came to be issued. It is enough that the transferor is a party and the order was in force. These two conditions being satisfied, the transfer must not be upheld. If this course is not adopted then the tendency to flout orders of Courts which is increasing day by day can never be curbed. The Court exercises its powers on the foundation of respect and regard for its authority by litigating public. People would loose faith and respect completely if the Court does not curb and prevent this tendency. The note of caution of the Supreme Court must be consistently at the back of everybody's mind. Therefore, Shri. Naphade is not right in the distinction which he is trying to make."

8. The judgment cited supra in turn places reliance on judgment in the matter of Surjit Singh Vs. Harbans Singh reported in AIR 1996 SC 135. The Apex court observed in para no.4 of the said judgment as below :-

"In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent state of affairs to exist while it is in seisin of lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes."

In this view of the matter, this court need not examine all the contentions raised at the instance of such person who is purchaser of the property during continuance of the prohibitory orders. Even otherwise, I find that the reasons recorded by the courts below are reasonable and founded on proper appreciation of evidence on record. There appears no irregularity which warrants interference at the hands of this court. No substantial question of law arises for consideration in the instant appeal. The appeal is devoid of substance hence dismissed summarily.

9. Learned counsel for the appellant makes a request for grant of status quo as he intends to approach Apex court in order to challenge the judgment and order passed by the courts below which are confirmed by this court. In view of the facts and circumstances of this case, the request does not deserve any consideration. The request stands rejected.

Appeal dismissed.