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2018 Supreme(Chh) 602
IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
Sanjay K. Agrawal, J.
Marium Bibi, W/o Md. Hafiul Haque – Appellant
Versus
Prabandhak, Bhumi Vikash Bank, Distt. Sarguja (C.G.) and ors. – Respondents
Second Appeal No.248 & 249 of 2001
Decided On : 23-10-2018
For the Appellant :Mr. A.K. Prasad, Advocate.
For the Respondent:Mr. Sunil Tripathi, Advocate, Mr. Neeraj Choubey, Advocate, Mr. Anurag Singh, Advocate, Mr. Ashish Surana, Panel Lawyer.
Headnote:
Civil Suit - Suit for declaration of title and permanent injunction - Registered sale deed – Gift Deed - Execution of - Whether judgment of first appellate Court in reversing the finding of the trial Court on the basis that the suit is not maintainable is proper or not, particularly, when the suit of the plaintiff was for declaration of title and permanent injunction - Whether the suit property could have been mortgaged by Mohd. Khalil or Baitul Bibi on account of fact that the suit property was already sold to mother of the plaintiff by a registered sale deed - Plaintiff, filed a suit for declaration of title and permanent injunction stating inter alia that she is the owner of suit land - She further averred that suit property was originally held by Baitul Bibi, wife of Rustam Ali, who sold the property through registered sale deed to mother of plaintiff) and possession was delivered to said mother of plaintiff gifted suit property to plaintiff by gift deed and mutation was done in her favour - Further stated that defendant No.5, being Karta of Muslim Undivided Family, took a loan from defendant Bank and along with other properties, plaintiffs suit land was also erroneously mortgaged and mortgage deed Ex.D-2 was executed by Mohd. Khalil and Baitul Bibi, though Baitul Bibi had already transferred the property to Mother of plaintiff had gifted the property to the plaintiff - Held, A careful perusal of Section 34 of the Madhya Pradesh Sahakari Krishi Aur Gramin Vikas Bank Adhiniyam, 1999, would reveal that where an auction sale has been made and confirmed under Chapter V of Adhiniyam, 1999, the title of the purchaser shall not be impeachable on the ground that no cause had arisen to authorise sale or that due notice was not given or that the power was other-wise improperly or irregularly exercised, but the concerned person shall have the remedy of damages against the Bank. But it is not the case here - Here Bank has mortgaged the property of a person (plaintiff) at the behest of defendant No.5 who was having no title over the suit land on the date of mortgage and thereafter, further, without making any enquiry, proceeded to auction the property held by the plaintiff - No Bank is entitled to auction the property by illegally mortgaging the land which is not owned by the person who has mortgaged land - Right to property though is not a fundamental right, but is a constitutional right guaranteed under Article 300A of Constitution of India and therefore no person can be deprived of his property except in accordance with law - Judgment and decree passed by the first appellate Court are set aside and that of the trial Court are restored - Second appeals are allowed
1. Since both these appeals involve common substantial questions of law, they are being disposed-off by this common judgment.
2. The substantial questions of law commonly involved, formulated and to be answered in both these second appeals preferred by the plaintiff are as under: -
“1. Whether the judgment of the first appellate Court in reversing the finding of the trial Court on the basis that the suit is not maintainable is proper or not, particularly, when the suit of the plaintiff was for declaration of title and permanent injunction?
2. Whether the suit property could have been mortgaged by Mohd. Khalil or Baitul Bibi on account of the fact that the suit property was already sold to one Tajuman Bibi on 11.7.1973 by a registered sale deed?”
(For sake of convenience, parties would be referred hereinafter as per their status shown in the trial Court.)
3. Marium Bibi – the plaintiff, filed a suit for declaration of title and permanent injunction stating inter alia that she is the owner of the suit land bearing Khasra No.754/2, area 0.713 hectare. She further averred that the suit property was originally held by Baitul Bibi, wife of Rustam Ali, who sold the property through registered sale deed dated 11-7-1973 (Ex.P-1) to Tajmun Bibi (mother of the plaintiff) and possession was delivered to said Tajmun Bibi and Tajmun Bibi gifted the suit property to the plaintiff by gift deed dated 10-9-1974 (Ex.P-2) and mutation was done in her favour on 13-10-1974. It was further stated that Mohd. Khalil – defendant No.5, being Karta of Muslim Undivided Family, took a loan of Rs. 8,500/- from the defendant Bank and along with other properties, the plaintiff's suit land was also erroneously mortgaged and mortgage deed Ex.D-2 was executed by Mohd. Khalil and Baitul Bibi, though Baitul Bibi had already transferred the property to Tajmun Bibi and Tajmun Bibi had gifted the property to the plaintiff. When the loan was not repaid, the plaintiff's property was also auctioned by the Bank in favour of defendant No.4 Brijmohan as such, since the property was not owned by defendant No.3 Rustam Ali or Baitul Bibi, therefore, the Bank was not entitled to auction the same and as such, the plaintiff is entitled for declaration of title and further declaration that the auction sale is void.
4. Defendants No.1 and 6 Bank have filed their written statement stating inter alia that loan was taken by Mohd. Khalil and the suit land was rightly mortgaged in favour of the Bank whereas, defendant No.4 claimed to be the bona fide purchaser and defendant No.5 accepted the claim of the plaintiff stating inter alia that the suit land belongs to Baitul Bibi and it did not belong to him.
5. The trial Court after appreciating oral and documentary evidence on record, decreed the suit holding that Baitul Bibi transferred the suit land in favour of Tajmun Bibi and Tajmun Bibi gifted the property to the plaintiff vide Ex.P-2 on 10-9-1974 and as such, Baitul Bibi was not having any mortgageable right in favour of the Bank. Appeals were preferred by the auction purchaser – defendant No.4 as well as by defendants No.1 & 6 – Bank before the first appellate Court separately. Both the appeals have been allowed by the first appellate Court holding that the suit was barred under Sections 82(3), 89 and 90 of the Madhya Pradesh Co-operative Societies Act, 1960, and therefore two separate appeals have been preferred by the plaintiff under Section 100 of the Code of Civil Procedure, 1908 in which substantial questions have been framed and set-out in the opening paragraph of the judgment.
6. Mr. A.K. Prasad, learned counsel for the plaintiff/appellant, submits that the mortgage made by Mohd. Khalil – borrower along with Baitul Bibi and Rustam Ali – defendant No.3 vide Ex.D-2 in favour of the Bank was not in accordance with law, as the mortgage deed is dated 10-4-1974, whereas the suit land was already sold by Baitul Bibi in favour of Tajmun Bibi vide Ex.P-1 on 11-7-1973 and was gifted
