PHULWASI DEVI Vs. ASHAN DEVI

JUDGEMENT

(1.) This appeal has been preferred by the abovenamed appellant (opposite party 1st Set) against the order dated 2 -6 -2000 passed by Sri Mahatam Prasad, Sub -ordinate Judge, IX Patna in Misc. case No. 18 of 1996 filed under Order XXI, Rule 99 read with Section 151 of the Code of Civil Procedure for redelivery of possession of the disputed land in question.

(2.) The appellant Phuiwasi Devi filed Title Suit No. 22 of 1987 for specific performance on an agreement for sale regarding the land situationed at plot Nos. 54, 55 and 60 Khata No. 507 of village Dhakanpura (Boring Road), part of holding Nos. 116/108, circle No. 249, ward No. 34 of Patna Municipal Corporation having an area of 8 khatas 11 dhoors. Originally, the land in question was owned by the respondents second set, namely, Bani Dey, her son Debashish Dey and daughter Jayshree Roy, of whom are now residing in Calcutta. Originally, the land in question was purchased by one Banilata Devi, paternal aunt of late Ashish Kumar Dey. Banilata Devi; bequeathed her entire property including the disputed land in favour of her nephew Ashish Kumar Dey through a Will on 28 -7 -1957. After the death of Banilata Devi, Ashish Kumar Dey filed an application for grant of probate of the Will before this Court and probate was granted in favour of Ashish Kumar Dey in Testamentary case No. 2 of 1961 and he took over possession over the disputed land along with the other properties mentioned in the Will. He died leaving behind his widow Bani Dey, son Debashish Dey and daughter Jayshree Roy as legal heirs. They also came in possession on the death of their predecessor. An agreement was arrived at between Phuiwasi Devi and the above -mentioned three owners for sale of the disputed land for a consideration of four lakh and the appellant paid the earnest money of Rs. 1 lakh to the respondent Nos. 3 to 5 by way of two bank drafts each of the amount of Rs. 50,000/ - drawn on the State Bank of India oat Bikaner, Jaipur, 'R' Block, Patna, to its branch at Calcutta and a deed of agreement was executed on 12 -7 -1984. As per the agreement, the original sale deeds of Banilata Dey had also been made over to the appellant. It was stipulated in the agreement that the respondents shall take necessary permission from the authority before executing the sale -deeds on payment of the balance of consideration money of Rs, 3 lakh. The respondents did not take any steps in executing the sale -deeds after receiving the earnest money although several requests were made from the side of the appellants. A legal notice was sent to the respondents but still then no sale -deed was executed. Finding no other alternative, the appellant filed Title Suit No. 27 of 1987 against the respondents second set on 6 -1 -1987 for enforcing the agreement of sale before the sub -ordinate Judge at Patna. According to the appellant, respondent No. 3 Bani Dey, personally appeared in the suit through,her lawyer on 18 -6 -1987, filed Vakalatnama and a petition seeking time to file written statement. Her son and daughter also appeared separately on 19 -8 -1987 through their attorney Nihar Kumar Das. They also filed Vakalatnama and petition for filing written statement through their attorney. Although several adjournments were granted in the suit for filing written statement but the respondents second set, who were defendants in the suit, did not file any statement nor taken any steps in the suit. Subsequently, the suit was heard ex parte. It appears that a petition was filed from the side of the appellant, as plaintiff in the suit, for publication of summons in the news paper as required under Order V Rule 20 of the Code of Civil Procedure although there was already appearance by the defendants in the suit but that petition was ultimately not pressed. By the judgment and order dated 8 -11 -1990, the suit was decreed ex parte by the Sub -ordinate Judge and directed the defendants (respondents second set) to execute the sale -deed within 90 days and, if not, the deed would be executed through the process of the Court. There was no prayer for possession in the suit. As per the decree granted, the appellant deposited the balance of consideration amount of Rs. 3 lakh by challan on 30 -11 -1990. When no sale -deed was executed by the defendants the appellant filed Execution Case No. 4 of 1991 and prayer was made for execution of the sale deed by the Court. The deed was executed by the Court and was sent for registration. The Registration office took objection in registration as no permission was therefrom the authority regarding the sale but ultimately, the same was registered through the direction of the Court as the deed was executed by the Court itself in pursuance of the decree granted by the Court. Ultimately, the sale -deed was registered on 1 -6 -1993. Then there was prayer for delivery of possession but at the first stage such prayer was not entertained. But, on the basis of a Division Bench judgment ultimately order was passed for issuance of delivery of possession through the process of the Court. As per prayer of the decree -holder -appellant, the Nazir along with the Magistrate and police force went to the spot and possession was delivered on 5 -9 -1996 to the appellant. According to the appellant, after delivery of possession she started construction work over the land in question. The delivery of possession was granted by the executing Court, and satisfaction to that effect was recorded by the executing Court on 20 -11 -1996 but the matter was kept open regarding the satisfaction of the cost decree.

(3.) On 21 -9 -1996, the respondents second set filed an application under Order XXI Rule 99 of the Code of Civil Procedure for restoration of possession which was registered as Misc. Case No. 18 of 1996, The case of the respondents first set was that by the four sale deeds dated 4 -6 -1985,5 -6 -1985,29 -11 -1985 and 2 -12 -1985, the land in question had been purchased by them from respondents second set and that immediately after their purchase they were put in possession and have been continuing in their possession as the owner and that their names were being mutated not only in the revenue records but also before the Municipal authorities. One of the purchasers Ramrati Devi died on 1 -6 -1987 and her only son respondent No. 2 also got his name mutated and came in possession with respondent No. 1. According to them, coming to know of attempt of disturbances in possession in the evening of 5 -9 -1996 they informed about breach of peace before the local police but no action was taken. Consequently, on 6 -9 -1996 a petition was filed before the S.D.M. Sadar, Patna, to preserve peace, who called for a report but no report was submitted. Then again, a petition was filed on 10 -9 -1996 by respondent No. 1 and a proceeding under Section 144 of the Code of Criminal Procedure was initiated against the parties by order dated 10 -9 -1996 but then the respondents could know that delivery of possession was made through the Court and as such, they searched in the Civil Court at Patna and came to know that delivery of possession was taken by the appellant through paper transactions although they remained in possession and as per advice, filed the petition for redelivery of possession as contemplated under Order XXI, Rule 99 of the Code of Civil Procedure. On the basis of such petition, the above -mentioned Misc. case was registered. Both the parties adduced both oral and documentary evidence and the learned Sub -ordinate Judge -IX, Patna, who was the executing Court in respect of Execution case No. 4 of 1991, passed the impugned order of redelivery of possession. Hence, this appeal.