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2008 Supreme(SC) 1709
2008(8) Supreme 730
SUPREME COURT OF INDIA
S.B. Sinha and cyriac Joseph, JJ.
Hamidkhan — Appellant
versus
Ashabi & Ors. — Respondents
Civil Appeal No. 6711 of 2008
[Arising out of SLP (Civil) No. 776 of 2006]
Decided on : 19-11-2008
For the Appellant :Sunil Kumar, Sr. Adv., Ms. Anita Kanungo, M. Khairati and Irshad Ahmad, Advocates.
For the Respondents:Rajesh Mahale and Devendra Kr. Singh, Advocates.
IMPORTANT POINT
When an order is set aside, all steps taken pursuant thereto become non est in the eyes of law.
Headnote:Judicial Propriety – When an order is set aside, all steps taken pursuant thereto become non est in the eyes of law. (Paras 16 and 17)
Facts of the case :
1. Defendant No. 1 - Respondent No. 8 herein is a charitable trust. By a registered deed dated 5.07.1951, the plaintiff - respondent No. 1 purchased the lease hold rights in respect of the land together with the superstructure standing thereupon from Shri Hasansab Bepari.
2. In the year 1955, the original defendant No. 1 filed a suit against several persons. Defendant No. 1, having regard to the fact that the plaintiff had already purchased the superstructure, agreed to sell the land to her by an agreement dated 26.02.1980 for a consideration of Rs.25,000/-. Out of the said amount, a sum of Rs.8000/- was paid by way of earnest money.
3. An order was passed by the Charity Commissioner directing that the land should be sold in public auction and the highest bidder should be permitted to purchase the suit land.
4. On the matter having been remitted by the High Court the Charity Commissioner in his order dated 15.04.1987 noticed that the appellant herein had been in possession of the suit property. A deed of sale was executed in his favour by the defendant No. 1 on or about 12.05.1988.
5. Plaintiff - Respondent No. 1 thereafter filed a suit for specific performance of the said agreement dated 26.02.1980 and furthermore questioned the validity of the said deed of sale dated 12.05.1988
6. By reason of a judgment and decree dated 22.01.1993, the said suit was decreed by the learned Trial Judge holding that the appellant is not a bona fide purchaser for value without notice. The suit was held to be not barred by the law of limitation.
7. An appeal preferred thereagainst was dismissed by the Ist Addl. Distt. Judge, Dharwad
8. The second appeal filed by the appellant thereagainst has been dismissed by the High Court
Finding of the Court :
Appellant is not entitled to the suit property but in view of his long possession and investments made in the property, he is entitled to be adequately compensated.
Result : Appeal allowed partly.
JUDGMENT
S.B. Sinha, J. —
1. Leave granted.
2. Defendant No. 2 in the Original Suit No. 358 of 1988 filed in the Court of the Additional Civil Judge, Hubli is the appellant, herein.
Defendant No. 1 - Respondent No. 8 herein is a charitable trust. By a registered deed dated 5.07.1951, the plaintiff - respondent No. 1 purchased the lease hold rights in respect of the land together with the superstructure standing thereupon from Shri Hasansab Bepari. In the year 1955, the original defendant No. 1 filed a suit against several persons. Plaintiff got herself impleaded as a defendant therein. Defendant No. 1, having regard to the fact that the plaintiff had already purchased the superstructure, agreed to sell the land to her by an agreement dated 26.02.1980 for a consideration of Rs.25,000/-. Out of the said amount, a sum of Rs.8000/- was paid by way of earnest money.
The relevant term of the said agreement reads as under:
“The said Rayanal math, being a public math, the necessary permission required to sell the said math properties shall be obtained from the Charity Commissioner, Belgaum and the Deputy Commissioner, Dharwad, and after intimating you about the same and receiving the balance consideration amount within one month thereafter, sale deed shall be executed in the presence of the sub-registrar”.
3. Admittedly, in terms of the said agreement, permission from the Charity Commissioner in terms of Section 36 of the Bombay Public Trust Act was required to be taken. On or about 30.10.1982, an order was passed by the Charity Commissioner directing that the land should be sold in public auction and the highest bidder should be permitted to purchase the suit land.
Defendant No. 1, purported to be in pursuance thereof and in furtherance of the said order, by a notice dated 22.04.1983, stated:
“As stated above, the Charity Commissioner has granted permission subject to certain conditions. Therefore, you are hereby informed that my client intends to conduct the public auction as per the order of the Charity Commissioner within a few days. If you intend to purchase the said property you may participate in the public auction. You will be entitled to adjust the earnest money paid by you against the bid amount. In case you are unable to purchase the said properties in the public auction, my client is willing to refund the balance of the earnest money paid by you after deducting appropriate amount as mesne profits you your (sic) occupation till now. You are entitled to receive such amount. You may understand that the contracts till now are cancelled. This notice dated 22.4.1983 is for your information.”
4. Indisputably, the said order of the Charity Commissioner was set aside by the High Court and the matter was remitted directing it to pass a fresh order. The Charity Commissioner in his order dated 15.04.1987 noticed that the appellant herein had been in possession of the suit property. A deed of sale was executed in his favour by the defendant No. 1 on or about 12.05.1988.
5. Plaintiff - Respondent No. 1 thereafter filed a suit for specific performance of the said agreement dated 26.02.1980 and furthermore questioned the validity of the said deed of sale dated 12.05.1988 in the Court of Principal Civil Judge, Hubli, praying inter alia for the following reliefs:
“It is, therefore, humbly prayed that, the sale in favour of Defendant No. 2 by the Defendant No. 1 being not binding upon the plaintiff, as it is in derogation of the right of the plaintiff to purchase the suit property by a sale agreement dated 26.2.1980; be cancelled by a decree with an ancillary relief of a decree for specific performance against the Defendant No. 1, directing the Defendant No. 1 to sell the suit property to plaintiff at the value at which it has been sold to the Defendant No. 2. In case, if the Defendant No. 1 declines to or does not execute the sale deed of the suit property on receipt of balance of consideration in pursuance of a contract of sale dated 26.2
