BHOPAL THAPA Vs. RIVA DEVI SHAW AND ORS.

JUDGEMENT

(1.) In this application under Section 115 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure read with Article 227 of the Constitution of India, the petitioner, namely, Sri Bhopal Thapa who is defendant No.8 in Title Suit no. 345 of 2011 has challenged the order dated 02.07.2014 rejecting the prayer for holding the suit as not maintainable.

(2.) To understand the case it is necessary to state the essential facts. The plaintiff Smt Riva Devi Shaw instituted Title Suit No. 345 of 2011 in which one Deepak Kumar Jain was arraigned as defendant No.1. Central Bank of India was impleaded as Defendant No.2 where as the defendants No.3 & 8 are private opposite parties. It is the case of the plaintiff that one Smt Charu Prabha Baruah became owner of a plot of land measuring 1 Bigha covered by Dag No. 351 of K.P. Patta No. 87 in Revenue Village Jyotikuchi in Beltola Mouza, Kamrup, Guwahati, by purchasing the same from its original owner Guna Ram Mikir vide registered deed dated 04.06.1967. This Guna Ram Mikir was the father of the defendant No.3 in the present case. The seller handed over the possession of the land to Charu Prabha Baruah following execution of sale deed and thereafter, she obtained mutation in her favour in the records of rights in place of Guna Ram Mikir. She also had been paying land revenue regularly in respect of the land described in Schedule-B to the plaint and being in the peaceful possession and enjoyment thereof sold 1 Katha 10 Lechas out of the said suit land to the plaintiff on 09.03.2007 by executing a registered sale deed No. 3052 of 2007 with due and prior permission of the concerned authorities. Plaintiff was handed over possession of the land by Charu Prabha Baruah and she also obtained mutation in the records of right with respect to the same land. While the plaintiff was in continuous and peaceful possession of the Schedule-A land which is a part of land described in Schedule-B of the plaint, she was dispossessed by the police personnel on 29.08.2011 forcefully. Upon enquiry she discovered that her dispossession was done consequent to a decree passed by Debts Recovery Tribunal, Guwahati at the instance of defendant No.2, Central Bank. The plaintiff came to know on enquiry that defendant No.1 had mortgaged Schedule-A land in favour of the defendant no.2 Central Bank while standing Guarantee for loan granted to defendants No.4, 5 & 6. The plaintiff thereafter obtained certified copies of the orders and found that the aforesaid orders were passed in O.A. 25 of 2011 by the Debt Recovery Tribunal, Guwahati. The records reveal that the defendant No.1 claimed to have purchased the same land on 16.07.1983 from the defendant No. 3 who is none other than the son of Guna Ram Mikir i.e. the person who had sold the whole of the land described in Schedule-B including the Schedule-A land to Charu Prabha Baruah, the vendor of the plaintiff, on 16.07.1983. The plaintiff was astonished to find that when father of the defendant No. 3 had exhausted his title by sale of the Schedule-B land to Smt. Charu Prabha Baruah on 04.06.1967, the defendant No. 3 could not have been left with any title to Schedule-A land which is only a part of Schedule-B land and thus, fraud was perpetrated by showing a sale of the Schedule-A land in favour of the defendant No.1, who on turn mortgaged the land in favour of defendant No.2. Neither the defendant No.1 had ever any possession over the land in question nor had he acquired any title to the suit land and so purported sale in favour of defendant No.1 followed by his mortgage of the same with defendant No.2 in securing financial assistance to defendants No. 4 to 6 was a fraudulent and collusive act and thus, purchase of defendant No.1 and subsequent mortgage in favour of the defendant No.2 are vitiated by fraud. With these basic facts, plaintiff approached the learned Civil Court with a prayer for decree declaring that sale deed dated 16.07.1983 executed by defendant No.3 in favour of the defendant No.1 and mortgaged by defendant No.1 in favour of defendant No.2 vide deed dated 06.10.1994 and the consequent certificate issued by Debts Recovery Tribunal, Guwahati on 08.04.2003 and 28.04.2003 in O.A. No. 25 of 2001 are all fraudulent, null and void ab initio etc.

(3.) Defendant No.8 submitted a written statement in the aforesaid suit denying the case of the plaintiff and stated that he purchased the suit land by way of auction sale pursuant to order passed in O.A. No. 25 of 2001 of the Debts Recovery Tribunal, Guwahati. He being the bonafide purchaser cannot be deprived from the fruit of the auction sale. Along with the written statement the defendant No.8 submitted as many as 5 draft issues and at the foot of the same he made a prayer that the application be admitted and the suit be dismissed as not maintainable. It is not shown under which provision of law the application was filed. Although the defendant No.8 claimed that the same was a preliminary objection but it does not appear that the same was filed in appropriate time for framing preliminary issue under Order XLI Rule 2(2) of the Code of Civil Procedure. It also does not appear that this is an application under Order VII Rule 11 of the Code of Civil Procedure. Be that as it may, the learned trial court heard both sides on this application containing 5 draft issues and held that the case involved disputed question of fact which needs a fullfledged trial. In the result, the preliminary objection was rejected.