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2003 Supreme(Gau) 495
IN THE HIGH COURT OF GAUHATI
B. Biswas, J.
Smt. Usha Rani Banik
Vs.
Haridas Das and Ors.
Review Petition No. 76 of 2002
Decided On: 11.11.2003
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Apu Banik, Adv. (in person)
For Respondents/Defendant: N. Dhar and P.B. Mazumdar, Advs.
The central legal point established in the judgment is the validity of a sale deed executed during the pendency of suits and the bar under Order 2, Rule 2 of CPC for filing a separate suit for the same cause of action.
Headnote:
Review Application - Validity of Sale Deed - Section 52 of Transfer of Property Act - Order 2, Rule 2 of CPC - [Section 52 of Transfer of Property Act, Order 2 of CPC] - The court discussed the validity of a sale deed executed during the pendency of two suits and the applicability of Section 52 of the Transfer of Property Act. It also considered the bar under Order 2, Rule 2 of the Code of Civil Procedure for filing a separate suit for the same cause of action.
Fact of the Case:
The review applicant purchased land and houses through a sale deed, which was challenged on the grounds of pending suits. The court analyzed the validity of the sale deed and the bar under Order 2, Rule 2 of CPC for filing a separate suit.
Finding of the Court:
The court found that the sale deed was valid to the extent it did not affect the rights of the opposite party determined in the pending suits. It also concluded that the separate suit for specific performance of an oral contract was barred under Order 2, Rule 2 of CPC.
Issues: Validity of sale deed during pendency of suits, applicability of Section 52 of Transfer of Property Act, and the bar under Order 2, Rule 2 of CPC for filing a separate suit.
Ratio Decidendi: The court held that a sale deed executed during the pendency of suits is valid to the extent it does not affect the rights of the opposite party determined in the pending suits. It also ruled that failure to obtain leave under Order 2, Rule 2 of CPC precludes filing a separate suit for the same cause of action.
Final Decision: The review petition was allowed, the judgment in the Second Appeal was modified, and the appeal was dismissed. The judgment and decree passed by the First Appellate Court were affirmed in reversal of the judgment passed by the learned Munsiff.
D. Biswas, J.
1. This application for review of the Judgment and order dated 21-8-2002 passed in Second Appeal No. 12 of 1993 has been assigned to this Court for disposal. The Second Appeal was allowed by this Court by the judgment and order under review reversing the Judgment and order, passed in Title Appeal No. 6/1990 and affirming the Judgment and decree dated 19-4-1989 passed in Title Suit No. 2/1987. The matter was heard on 5-3-2003, and by order dated 9-4-2003 it was directed that the original files of Title Suit No. 201/1J985 along with records of Title Suit No. 1/1986, Title Suit No. 2/1987, Title Appeal No. 6 of 1990 and Civil Revision No. 210 of 1991 be placed on record. The matter was again heard on 30-7-2003. The records placed and made available are in a disarrayed condition which caused delay in rendering this judgment.
2. Shri Haridas Das (opposite party in this review application) filed original Title Suit No. 2 of 1987 for cancellation of the sale deed executed on 26-9-1986 by the original owner Kalipada Das in favour of the review applicant Smt. Usha Rani Banik. The learned Munsiff decreed the suit by the judgment delivered on 19-4-1989. Being aggrieved thereby, the review applicant preferred Title Appeal No. 6 of 1990 which was allowed and the judgment and decree passed by the learned Munsiff in Title Suit No. 2 of 1987 were set aside. The opposite party, thereafter, filed the Second Appeal No. 12 of 1993,which was allowed by this Court. The review application filed by Smt. Usha Rani Banik is directed against this judgment passed in second appeal whereby the original decree passed by the learned Munsiff in Title Suit No. 2 of 1987 has been affirmed.
3. The Second Appeal was admitted by an order passed on 21-1-1993 for hearing on the following question of law:-
"Whether the alleged sale deed is bad in law as it was executed during pendency of two suits?"
4. During the pendency of the Second Appeal, the following additional substantial question of,law was formulated:
"Whether the learned lower appellate Court duly exercised its jurisdiction under Order 2, Rule 2 of C.P.C. in allowing the appeal and thereby dismissing the suit filed by the appellant/plaintiff ?"
5. The review applicant purchased the land and the houses standing thereon by the registered sale deed executed and registered on 26-9-1986 and 27-9-1986 respectively from the original owner. This deed was challenged on the ground that on the date of execution of the sale deed, Title Suit No. 201 of 1985, Miscellaneous Case No. 65 of 1985 and Title Suit No. 1 of 1986 were pending. The learned trial Judge accepted the contention and decreed the suit.
6. Mr. A. Banik, attorney of the applicant contended that the applicant is the bona fide purchaser of the suit land and the houses standing thereon for consideration. She had no knowledge of pendency of any suit and, therefore, she cannot be deprived of right, title and interest over the suit property. Mr. Dhar, learned counsel for the opposite party submitted that the transaction was in violation of the provisions of Section 52 of the Transfer of Property Act without delivery of possession and, therefore, there cannot be review of the judgment delivered by this Court allowing the second appeal.
7. It would appear that the first question relating to Section 52 of the Transfer of Property Act has been dealt with by the learned Munsiff in Issue Nos. 5 and 6 together. The learned Munsiff declared the sale deed dated 26-9-1986 as illegal and void on the ground that the original owner being a party to Title Suit No. 201 /85 and Title Suit No. 1/1986 and the connected miscellaneous petition could not have divested title in favour of the review applicant. Learned Munsiff also was of the opinion that the order of status quo passed in Miscellaneous Case No. 65 of 1985 continued in forced despite dismissal of the connected Title Suit No. 201 of 1985.
8. The opposite party, Shri Hartdas Das instituted Title Suit No. 201 of
