JAGDISH CHANDRA GUPTA Vs. VIMLA DEVI AND ORS

JUDGEMENT

(1.) I have heard Shri Brijesh Kumar Saxena, learned counsel for the appellant and Shri Mayank Pandey, learned counsel for the respondents and perused the record.

(2.) The appellant has challenged the judgment and order dated 7.10.2009, passed by the Additional District Judge, Court No.10, Lucknow, in Regular Civil Appeal No. 38 of 2008, whereby the appeal was allowed and the matter was remitted back to the trial court with direction that an issue with regard to collusion between the parties be framed and another issue be framed as to whether the relief of permanent injunction can be granted to the plaintiffs and thereafter decide the suit afresh and if necessary fresh evidence be also taken.

(3.) The facts in brief are that the plaintiff/ respondent no.1 filed a Suit No. 263 of 2005, against the appellant and respondents no. 2 and 3 for permanent injunction and a decree for declaration on the ground that she was the owner of house no. 149 /109 situated at Hari Nagar Dugawan, District Lucknow. It was also stated that she purchased the aforesaid house from the respondents no.2 and 3 through their attorney, namely, Om Prakash on 27.7.2003. The seller had assured the plaintiffs/ respondent no.1 that the house was free from all the encumbrances. and the respondent no.2 was the owner on the basis of a Will dated 13.4.1992 executed by Smt. Laxmi Devi. The plaintiff- respondent no.1 on being satisfied, purchased the house. When the plaintiff/ respondent no.1 received notice of Execution Case No. 8 of 2003, she appeared and filed objections under Section 47 CPC which was rejected. She was therefore left with no other option, except to file a suit for declaration and permanent injunction. It was also pleaded by her in the suit that the appellant and the respondents no. 2 and 3 were in collusion. The respondents no.2 and 3 did not appear and the case proceeded exparte against the appellant. Defendant no.1 contested the suit and filed his written statement. It was stated by the defendant/appellant that the plaintiff/ respondent no.1 purchased the disputed house on 25.7.2003. It was also said that a suit against the respondent no.2 was filed for specific performance of contract, which was Regular Suit No. 24/2001. This suit was decided on 25.11.2002 against the respondent no.2. Feeling aggrieved by the dismissal of the suit, he preferred Regular Civil Appeal No. 3/2003, which was also dismissed. The second appeal No. 242 of 2003 was filed which was also dismissed as not pressed. Thereafter the execution Case No. 8/2003 was filed in which the notice was issued to the respondent no.2. The respondent no.2 also moved an application before executing court for permission to execute the sale deed which was allowed but thereafter when the respondent no.2 reached at the disputed house, only then he came to know that the house has already been sold to plaintiff/ respondent no.1. He then impleaded the plaintiff/ respondent no.1 in the execution case and thereafter notice was issued to her. She also appeared before the execution case and filed her objection under Section 4 CPC but the same was rejected. Thereafter the suit for declaration and permanent inunction was filed by the plaintiff/ respondent no.1. The declaration was sought to the effect that the agreement between the defendant No.1 and defendant no.2 of the original suit was not binding on the plaintiff/ respondent no.1. The appellant in his written statement challenged the aforesaid relief and stated that such declaratory decree cannot be granted by the court.