SHANTA VERMA Vs. VIJAY KUMAR AND OTHERS

JUDGEMENT

(1.) This judgment shall dispose of the appeal filed by the appellant/defendant under Sec. 96 read with Order 41 Civil Procedure Code against the judgment and decree of the Court of learned Additional District Judge, Una, dated 16.10.2008, vide which the suit for declaration filed by respondents No.1 and 2 (hereinafter also referred to as the plaintiffs) against the appellant (hereinafter also referred to as defendant No.1) and as against respondents No.3, 4 & 5 (hereinafter also referred to as the defendants No.2, 3 and 4, respectively), was decreed as against defendant No.1. This judgment shall also dispose of the writ petition filed by the HPFC/defendant No.4 challenging the sale proceedings qua the suit land.

(2.) Briefly stated, the facts of the case are that the plaintiffs filed a suit for declaration to the effect that the suit land along with the superstructure existing on the land measuring 0-1-47-42 hectares comprised in Khasra No.9, 10 etc. was owned and possessed by the plaintiffs having been purchased from defendant No.4 for Rs.8.5 lacs. The plaintiffs have further challenged the mutations of attachment No.475 and 510 procured by defendants No.2 and 3 and the subsequent auction sale, by having played fraud. It was alleged that the land in suit was owned and possessed by one Navjyoti Engineering Pvt. Ltd., not a party before this Court, and the said concern had secured a loan of Rs.19.50 lacs from defendant No.4. An equitable mortgage was also created by deposit of the deed of immovable property in favour of defendant No.4 as is entered in the copy of jamabandi. The original owner Navjyoti Engineering Pvt. Ltd. failed to pay the loan and under the provision of Sections 29 and 30 of the State Financial Corporation Act, defendant No.4 took over the possession of the mortgaged property on 5.7.1995. After taking over the possession, defendant No.4 advertised in the daily newspaper inviting bids for the sale of the taken over assets for 9.4.1999. Defendant No.4 thereafter called upon the bidder for negotiating the price. The plaintiffs also deposited a sum of Rs.17,000.00 as earnest money along with the bid. The plaintiffs successfully negotiated with defendant No.4 and the price settled was Rs.8.5 lacs as on 30.8.1999. The plaintiff, as per this settlement with defendant No.4, also deposited the sale money.

(3.) It was further alleged that defendant No.4 delivered the possession of the sold assets on 23.7.2001 to the plaintiffs and since then the plaintiffs have been coming in possession of the suit land, building and machinery attached therein. It was also alleged that proforma defendant No.4 was in possession prior to handing over the possession to the plaintiffs for which defendant No.4 had employed a Chowkidar to look after the property. The plaintiffs after the purchase, posted their own person for looking after the property. It was further alleged that from examination of the record, it was revealed that Navjyoti Engineering Pvt. Ltd. had filed a suit for mandatory injunction against defendants No.2 and 3 and the suit was dismissed as withdrawn by way of compromise. No decree in favour of defendants No.2 and 3 was passed. However, it was revealed that defendants No.2 and 3 filed Execution Petition No.45 of 1995 on the basis of the dismissed suit and by misleading the court fraudulently got attached the suit land vide rapat No.475 and 510, dated 29.7.1998 and 24.8.1998, though there was no executable decree and the land could not be attached. It was also alleged that defendant No.2 and 3 in conspiracy with defendant No.1, without adopting the procedure of Order 21, Rule 66 , got the land auctioned in favour of defendant No.1 for a paltry sum of Rs.50,000.00. The proceedings of attachment and sale were kept secret. It was also alleged that the super structure existing over the suit land was of value of more than Rs.2.00 lacs. The plaintiffs were not made a party to the execution proceedings. Defendant No.4 continued in possession of the suit land and other assets and thereafter the plaintiffs came in possession of the suit land. The plaintiffs had challenged the warrant of attachment issued and the subsequent auction in favour of defendant No.1 and had also challenged mutation No.210 in favour of defendant No.1 being wrong, illegal and void. It was also alleged that the transaction was illegal in view of the charge and lien of defendant No.4 and no auction or sale could take place unless no objection certification was taken form defendant No.4 since they were having the first charge over the said property. Defendant No.1 has also procured entry of delivery of possession but this rapat is merely a paper entry since the possession was never delivered to defendant No.1. Thus, the plaintiffs had prayed for declaration that the sale in favour of defendant No.1 and the mutation of attachment procured by defendants No.2 and 3 and subsequent sale be declared null and void since they are the result of fraud and in the alternative relief of possession was also claimed.