VINDU GOENKA Vs. JAI NARAIN

JUDGEMENT

(1.) The present revision petition under Article 227 of the Constitution of India has been preferred challenging the orders dtd. 23/7/2008 and 18/8/2008 dismissing the objection petitions filed by the petitioner herein.

(2.) A brief history of the case needs to be noted here before adverting to the merits of the matter. On 3/4/1984 Dhan Singh s/o Kalu Ram executed an agreement to sell in favour of Jai Narain etc., the respondents herein, for a sale consideration of Rs.4.35 Lakhs. The agreement stated that Rs.6,000.00 had been paid at the time of signing of the agreement to sell and Rs.1.74 lakh already stood paid prior to the agreement. The total land involved in the agreement to sell was 116 kanals 1 marla i.e. 1/3rd share of 348 kanals and 4 marlas situated in the revenue estate of village Wazirpur, Tehsil and District Gurgaon. After the execution of the alleged agreement to sell dtd. 3/4/1984, Dhan Singh sold land measuring 20 kanals out of his share of 116 kanals and 1 marla to Rampat vide registered sale deed dtd. 11/03/1986. On 16/8/1988 a civil suit was filed for specific performance of the alleged agreement to sell dtd. 3/4/1984 by Jai Narain etc., the plaintiff-respondents herein, against Dhan Singh respondent No.9 herein. It is apt to note that in the written statement filed by Dhan Singh no disclosure was made regarding 20 kanals of land having been sold to Rampat vide sale deed dtd. 11/03/1986 and hence Rampat was not impleaded as a party. Subsequently, Rampat vide sale deed dtd. 30/6/1989 sold 20 kanals of land in favour of Tej Ram. Tej Ram vide sale deed dtd. 27/11/1989 sold 20 kanals of land to Madhulika. On 21/9/1994 ex-parte judgment and decree was passed in favour of Jai Narain etc. in the suit for specific performance. It is apt to note here that though the suit was filed for specific performance of agreement to sell dtd. 3/4/1984 as well as for delivery of possession, however, the judgment and decree was passed only granting specific performance of agreement to sell dtd. 3/4/1984 and no decree qua possession was passed. On 31/8/1995 an execution petition was filed by Jai Narain against judgment-debtor Dhan Singh (respondent No.9 herein) wherein it was prayed that the plaintiff decree-holders (respondents herein) be granted a decree for specific performance of the agreement to sell dtd. 3/4/1984 on depositing of balance sale consideration as well as for possession. During the pendency of the execution petition, vide sale deed dtd. 13/12/1995 Madhulika sold 9 kanals out of 20 kanals to Vindu Goenka the present petitioner. In the execution petition, on 17/8/1998 the sale deed was executed through the agency of the Court in favour of Jai Narain etc. Thereafter, it was brought to the notice of the Court that the judgment-debtor Dhan Singh was not in possession of the suit land and that there were 21 purchasers of the said land. Accordingly, the decree-holders filed an application for delivery of possession against 21 purchasers including the petitioner herein. The purchasers mentioned at Sr. Nos.3, 17, 19 and 20 put in appearance and the remaining remained unserved. On 5/8/2006 a statement was made by the learned counsel for the decree-holders that the impleadment of the subsequent purchasers was unnecessary and there was no requirement to summon them. The said fact is noticed in the order dtd. 7/8/2006 passed by the Executing Court. Objections were filed by the petitioner which were dismissed vide the impugned order dtd. 23/7/2008. The appeal of the petitioner was also dismissed vide order dtd. 18/8/2008.

(3.) Learned senior counsel appearing on behalf of the petitioner would contend that without going into the detailed objections raised by the petitioner, the Executing Court has dismissed them only on the ground of the petitioner having purchased the property lis pendens. Learned counsel would further contend that out of the 116 kanals 1 marla of land Dhan Singh sold 20 kanals to Rampat on 11/03/1986 and, therefore, on the date of passing of judgment and decree dtd. 21/9/1994 Dhan Singh was not even the owner of land measuring 116 kanals 1 marla. It is submitted that the petitioner herein has purchased the land from Madhulika who in turn had purchased it from Tej Ram and Tej Ram had purchased it from Rampat. It is further the contention of the learned counsel that without going into the question whether the sale in favour of Rampat would be hit by the principles of lis pendens, the Executing Court erred in dismissing the objections filed by the petitioner.