VARDHMAN SPINNING AND GENERAL MILLS Vs. VIJAY KUMAR

JUDGEMENT

(1.) The petitioner has filed the present petition seeking review of the judgment and decree dtd. 25/8/2023, passed by this Court in RSA No. 107 of 2008. It has been asserted that defendant No.1 was held to be a non-bona fide purchaser by the learned Trial Court while deciding issues No.3 and 8(a). It was held that defendant No.1 was informed about the agreement at the time of the execution of the sale deed and he could not be called to be a bona fide purchaser for consideration. This finding was upheld by the learned First Appellate Court. This Court restored the judgment and decree passed by learned Trial Court and the actual effect of defendant No.1 being declared a nonbona fide purchaser is required to be seen. This Court has not considered the question regarding the status of defendant No.1 as decided by the learned Courts below. Since defendant No.1 is not a bona fide purchaser for consideration, therefore, he was not entitled to approach this Court. This Court was required to consider whether defendant No.1 could have approached the Court when he was not a bona fide purchaser for consideration. This Court has agreed with the findings recorded by learned Courts below but failed to consider that defendant no.1 had no title, possession, ownership or any right over the suit property and he could not contest the lis claiming to be the owner of the suit property. The petitioner is in possession. Defendants No.2 to 9 are the legal representatives of Babu Ram and they have not challenged the judgment and decree. The judgment and decree could not have been set aside at the instance of defendant No.1. The time is not the essence of the contract and the suit could not be held to be barred by limitation. The findings in the judgment and decree are contradictory. Petitioner No.1 had performed its part of the contract in the letter and spirit. The complete sale consideration was paid to Babu Ram who had handed over the possession of the suit property to the petitioner. The petitioner had a possessory title which was to be protected in view of Sec. 53A of the Transfer of Property Act. This Court held that the sale deed was to be executed within a reasonable time. The petitioner had paid the full consideration to Babu Ram and there was no question of reasonable time. Substantial questions of law arising in the matter have been left unanswered. The suit was governed by Article 54 and could not have been dismissed by incorporating the principle of reasonable time. Babu Ram had executed General Power of Attorney in favour of the official of the petitioner company. The sale deed could not be executed due to the death of Babu Ram. The petitioner had specifically asserted that cause of action arose to the plaintiff for filing the suit on 30/6/2001 when they came to know about the illegal and fraudulent registration of the sale deed. The sale deed could not be executed after the death of Babu Ram on 25/7/1994 as defendants No.1 to 6 did not cooperate in submitting the fresh documents. No permission could have been obtained by the petitioner without the cooperation of the legal representatives. The Court had re-appreciated the evidence while deciding the Regular Second Appeal. It was stated in para-14 of the judgment that the learned counsel for the plaintiff had supported the judgment and decree passed by the learned Trial Court which is incorrect as the petitioner was contesting the judgment and decree passed by the learned Trial Court. Therefore, it was prayed that the present petition be allowed and the judgment and decree passed by this Court be reviewed.

(2.) I have heard Mr G.D. Verma, learned Senior Counsel assisted by Mr. Digvijay Bisht, learned counsel for the petitioner/plaintiff and Mr. H.S. Rana, learned counsel for the respondents/defendants.

(3.) Mr. G.D. Verma, learned Senior Counsel for the petitioner/plaintiff submitted that both the learned Courts below have consistently held that defendant No.1 is not a bona fide purchaser for consideration. Hence, he was not competent to file an appeal before the Court. This Court entertained the appeal and allowed the same. It was wrongly held that the sale deed was to be executed within a reasonable time. The suit was governed by Article 54 of the Schedule to the Limitation Act. The plaintiff had asserted in the plaint that cause of action arose to him on 30/6/2001 and the suit was within limitation. The plaintiff could not have been non-suited on the ground of delay. Therefore, he prayed that the present petition be allowed and the judgment and decree passed by this Court be set aside.