RADHEY SHYAM RAM Vs. MUNI TIWARI

JUDGEMENT

(1.) Heard counsels appearing on behalf of the respective parties at length. Pleadings are complete. The writ petition is listed for admission. As agreed between the parties, the writ petition is being heard finally. The impugned order in the instant writ petition is dated 20th December, 2011 passed in T.A. No. 1 of 2011 by the District Judge-II, Garhwa.

(2.) The petitioner's father Sarju Ram executed two sale-deeds and transferred certain land in favour of the contesting respondent Nos. 1 and 2 in the year 1982. A deed of re-conveyance was also executed in the same year. Subsequently in the year 1984 father of the petitioner Sarju Ram claimed specific performance of the deed of re-conveyance. The said suit was dismissed. Thereafter Sarju Ram executed sale-deeds in favour of other persons regarding a portion of the suit property in respect of some plots, which was sold to respondent Nos. 1 and 2. Respondent Nos. 1 and 2 instituted Title Suit No. 45 of 1994 and Sarju Ram was arrayed as defendant No. 19. During the pendency of the suit defendant No. 19, Sarju Ram died without filing written statement. Thereafter an application under Order XXII, Rule 4(4), CPC was preferred for granting exemption from filing substitution application. The said application was allowed vide order dated 21.2.2002 and the suit proceeded which was decreed. The petitioner submits that he filed written statement after the death of his father, which was not accepted. The aforesaid suit was decreed on 20th December, 2010; defendant No. 9 in the said suit is a purchaser from deceased Sarju Ram and he preferred Title Appeal No. 1 of 2011 arraying the petitioner as respondent No. 20. A cross-objection has been preferred at the behest of the petitioner, which has been dismissed by means of the impugned order.

(3.) The admitted fact is that the petitioner has also instituted a suit vide T.S. No. 51 of 2011 on 28th April, 2011, which is still pending. The grievance of the petitioner is two fold. First argument advanced on behalf of the petitioner is that the contesting respondent was liable to be substituted in place of defendant No. 19 Sarju Ram, as the petitioner is his son and heir and he was very much alive and eager to contest the suit. He had also filed written statement, which was not accepted by the Court. The second contention is that two sale-deeds could not have been executed as it is hit by Section 46 of the C.N.T. Act. The precise objection in the cross-objection preferred in T.A. No. 1 of 2011 is also to the same effect that the sale-deeds are in contravention of the provisions of Section 46 of the C.N.T. Act. The submission of the learned counsel is that sale-deeds are invalid, besides the petitioner Is deprived of preferring an appeal as well as he was not arrayed or substituted in the suit and, therefore, he will suffer irreparable loss. The suit proceeded against the petitioner taking advantage of the fact that late Sarju Ram failed to file a W.S. And the Court allowed application under Order XXII, Rule 4(4), CPC.