Saraswati Devi (Smt.) Vs. Maharao Brajraj Singh and ors. - Court Judgment

Vineet Kothari, J.

1. This appeal is directed against the order dated 1.3.2007 passed by learned ADJ No. 1, Kota dismissing the civil suit No. 1/2000 on an application filed under Order 7 Rule 11 CPC by defendant No. 6 Ijyaraj Singh son of Sh. Maharao Brajraj Singh on 15.9.2006.

2. The facts leading to the present impugned order in brief are like this.

3. The plaintiff Smt. Saraswati Devi, appellant herein filed a suit for specific performance against the defendant with regard to 80 bighas of land which came under ceiling and under an exemption order passed on 24.2.1990 by the State Government exempting the land in question from the provisions of the Urban Land & Ceiling Act, 1976 (since repealed in 1999) on 24.2.1990. The agreement in question is said to be oral and made on 26.2.1990 and according to the plaintiff, she paid entire consideration of Rs. 12 lacs to the defendant No. 2 Prithvi Raj Singh who was trusted assistant of Maharao Bhim Singhji, who has since expired and present defendants are the family members. According to the plaintiff, they were also put in possession of the land in question.

4. The suit was contested by the defendants inter alia on the ground that the said agreement was only subject to framing of an scheme and approval by the UIT, Kota. The defendant No. 6 who filed the present application under Order 7 Rule 11 CPC, submitted before the court that the property in question was bequeathed to him by way of Will by his grand father Sh. Bhim Singhji and, therefore, the suit was barred by law as the agreement in question was void as hit by Section 5, 10(4) & 27 of the Urban Land & Ceiling Act. There appears to be a multiplicity of litigation between the parties about the land in dispute pending in civil, revenue & criminal side courts and the matter has also travelled up to Hon'ble Supreme Court on the issue of temporary injunction and on two occasions to this court in two civil misc. appeals, reference to which would be made a little later.

5. The trial Court has allowed the application under Order 7 Rule 11 CPC mainly relying on the Judgment of Madras High Court in Raptakos Brett and Co. Pvt. Ltd. v. Modi Business Centre (Pvt.) Ltd. reported in : AIR2006Mad236 wherein the learned Single Judge has held that the relief of specific performance can be granted in respect of an immovable property on the basis of an oral agreement, but the oral agreement was entered into between the parties in respect of 21.71 acres which property admittedly belonged to the defendant, and the same property was under the clutches of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. If an agreement entered into between the parties at the inception is void, it can, by no stretch of imagination, be legalized by a subsequent repealing of the Act or by an order of the Court. Relying on the Full Bench view of Madras High Court in P. Gopirathnam v. Feerodous Estate (Pvt.) Ltd. reported in 1993 (3) RLW 249, the court held that if that person holds more land than prescribed under Section 5, such transfer shall be deemed to be null and void in view of prohibition under Section 6 against the transfer of the land and thus the agreement could not be enforced. The court thus allowed the application under Order 7 Rule 11 CPC.

6. Mr. M.M. Ranjan, learned Counsel for the respondent-defendants also relied upon the judgment of Hon'ble Supreme Court in K. Narendra v. Riviera Apartments (P) Ltd. reported in (1995) 5 SCC 77 in which the Hon'ble Supreme Court applying the doctrine of comparative hardship to the parties and relevance of long lapse of time instead of granting specific performance, awarded compensation to the plaintiff where the defendant-appellant entered into an Agreement to Sell a plot of land to respondent to construct a multi storeyed building in an area covered the Master/Zonal plan and requiring several sanctions and clearances which were not within the power of the parties but the parties knowingly depended on the respondents for securing the requisite sanctions and clearance. He further relied on : AIR1992SC1567 Smt. Meera Gupta v. State of West Bengal and Ors. in which the Hon'ble Supreme Court in para No. 13 held that the words 'any other land' in the sequence would thus mean any other built-upon land except the one excluded from the expression 'vacant land' on account of it being occupied by a building which stood constructed or was in the process of construction on the appointed day, finds support from Section 5 which pursues and does not leave alone transfer of vacant land in the gap period. The provisions of Section 5 reflects in scheme of the Act inasmuch as transfers of vacant land within the gap period are ignorable, and likewise, vacant land brought under construction of building by a person within the gap period is also ignorable for the purpose of calculating the extent of vacant land, so that the provisions of law are not defeated by human ingenuity.

7. On the other hand, strongly opposing the submissions of Mr. Ranjan, learned Counsel for appellant, Mrs. Sonia Shandilya & Mr. Sandeep Pathak submitted that the application filed under Order 7 Rule 11 CPC by defendant No. 6 Ijyaraj Singh was not only not maintainable but was barred by the principles of res judicata contained under Order 2 Rule 2 CPC because similar application under Order 7 Rule 11 CPC was filed by defendant No. 1 Maharao Brajraj Singh son of late Sh. Maharao Bhim Singh and father of defendant No. 6, which came to be rejected by the same Presiding Officer on 11.8.06. Yet after filing of the written statement, the defendant No. 6 who was impleaded in the suit as defendant, when he claimed through a Will alleged to have been executed by late Maharao Bhim Singh in his favour, filed the present application under Order 7 Rule 11 on almost the same grounds but the same came to be allowed by the same Presiding Officer on 1.3.2007 by impugned order. They submitted that the suit for specific performance deserved a full dress trial and where the mixed questions of law and facts were involved, there was no question of dismissing the suit at the threshold on an application under Order 7 Rule 11 CPC that too after written statement was filed by the defendants (in September 2006), six years after the filing of the suit.

8. They contended that once the land in question was exempted from Ceiling by an order passed under Section 20 of the ULCRA Act by the State Government on 24.2.1990, there was no prohibition or bar in law in entering into an Agreement to Sell by the late Maharao Bhim Singh two days after the said order on 26.2.1990 much before his death on 21.7.1991. They submitted that the trial Court had wrongly construed the said order of exemption under Section 20 of the ULCRA Act as one being under Section 21 of the said Act which empowers the competent authority, not to treat the excess vacant land, as vacant land in certain cases and in which case, rest of the provisions of Chapter III of the said Act about disposal of the excess land and Section 27 containing prohibition of transfer of urban property could be applied. Furthering their arguments, learned Counsel for the appellant submitted that in view of exemption under Section 20 of the Act vide order dated 24.2.1990, even if subject to certain conditions, it could not be said that for the alleged non-compliance or non-fulfillment of such conditions, the Agreement to Sell the land in question, would be void, On the other hand, the exemption order which stands even now and by an order dated 7.6.91, the Government had even refused to withdraw or cancel the exemption order dated 24.2.1990, vacating the stay order dated 30.6.90, put this situation beyond the pale of doubt that the exemption from ULCRA Act was fully applicable in the present case and, therefore, there was no question of holding the Agreement to Sell dated 26.2.1990 as void or unenforceable so as to furnish a ground of allowing the application under Order 7 Rule 11 CPC and dismissing the suit for specific performance. According to them, the assumed non-compliance with the conditions of exemption was a self assumed and self serving proposition, which in fact did not exist. They also questioned the credibility of UIT, Kota also moving similar application supporting the cause of the defendant No. 6.

9. Mr. Sandeep Pathak, they young brimming lawyer, as if to put the last straws on camel's back urged that the background of the case shows that there was not only the intra party dispute between the defendants and mother & sisters pitched against the defendant Nos. 1 and 6 in which alleged Will in favour of defendant No. 6, was also under challenge in competent court, but he also urged that in the similar manner as the present appellant is, the defendant pressurized one Om Prakash to settle the dispute about the Agreement to Sell another chunk of land of late Maharao Bhim Singh and after settlement, defendants were themselves selling the plots of the said land and the purpose of filing the impugned application under Order 7 Rule 11 CPC and getting the suit dismissed was only to make their way clear for adopting similar course of action qua the land in dispute.

10. Both the learned Counsel for the appellant drew the attention of this Court towards the latest decision from this Court in CMA No. 883/2006 (Smt. Saraswati Devi v. Maharao Brajraj Singh and Anr.) decided on 31.1.2007 where this court held that, 'No man, including the former ruler of Princely States, can be permitted to take the law into his own hands. The Rule of Law is to be respected by one and all. Thus the respondent No. 1 cannot be permitted to attempt to oust the appellant from the land in dispute by use of muscle power and anti-social elements and in utter violation of the law. (page 12)... Since periodically a volatile situation seems to erupt, the learned trial Court must endeavor to finally decide the case as soon as possible and certainly within a period of six months as extended by this Court. Meanwhile, both the parties are directed to maintain peace and tranquility over the disputed property. And the DIG, Kota is directed to ensure that no law and order problem arises between the parties over the disputed land.' With these observations, the said misc. appeal was allowed against the order refusing temporary injunction to the appellant. It is after this order that the learned trial Court dismissed the suit itself vide order dated 1.3.2007 and hence this first appeal was filed.

11. Learned Counsel for the appellant relied on the following judgments in favour of their submissions i.e. Smt. Sushila v. Nihalchand Nahata reported in AIR 2004 Madras 18 wherein the learned Single Judge of Madras High Court, cited supra, held that if the agreement is with respect to the 'exempted' land or with reference to the land that is likely to be exempted, such an agreement is not invalid; such agreement are valid and enforceable in a suit for specific performance. Another judgment relied upon by the learned Counsel for the appellant is Shah Jitendra Nanalal v. Patel Lallubhai Ishverbhai reported in AIR 1984 (Guj.) 145, wherein the court held that the decree for specific performance could even be made conditions in case of exemption under Section 20 and such decree is permissible in law. In the end, learned Counsel relied upon Nirmala Anand v. Advent Corporation Pvt. Ltd. And Ors. reported in AIR 2002 SC 2290.

12. Having heard learned Counsel at length and having perused the relevant record and case laws and the impugned order, this Court is of the opinion that the present appeal deserve to be allowed and the impugned order dated 1.3.2007 deserve to be set aside.

13. The Order 7 Rule 11 CPC has been enacted to permit the court to reject frivolous and vexatious litigation in the form of civil suits instituted, if either some law bars such civil suits or the plaint does not disclose any cause of action. The present case appears to be poles apart from that situation. Not only the continuous and constant litigative battle banking upon the decisions from this court and Hon'ble Apex Court ought to have thrown light before the trial court to decide the suit on merits after full dress trial, but at the belated stage after six years of institution of suit, on a belated filing of written statement and second application filed under Order 7 Rule 11 CPC, one having already been rejected by same Presiding Officer, indicates that said application was filed by defendant No. 6 to clear off the said land from the alleged claim in a civil suit for specific performance filed by the plaintiff-appellant. Whatever could have happened to the suit on merit after leading evidence, is a point which lies in future but certainly this was not a case where the civil suit could be held to be barred by law or that the plaint did not disclose any cause of action. Once the land in question is shown to be exempted from ULCRA Act by exemption order of the State Government passed on 24.2.90, which still holds the field, rejecting the civil suit filed on the basis of an agreement, entered into after the said exemption order holding that such civil suit is based on void agreement, is perse illegal, in the opinion of this Court. The suit certainly deserved a full dress trial and the parties ought to have been allowed to lead evidence after framing of issues. Neither the agreement in question could be said to be void ab initio nor the exemption order falling under Section 20 or 21 of the ULCRA Act would make any difference. Apparently the exemption order is under Section 20 of the ULCRA Act, which has now been repealed in the year 1999. If the character of 'void contract' cannot be affixed to the agreement, in question on which the suit for specific performance is based, which in the opinion of this Court, it cannot be done and so in the present case, the suit in question certainly deserved to be tried on merits.

14. Consequently, this appeal is allowed and the impugned order dated 1.3.2007 is set aside and the civil suit No. 1/2000 is restored to the trial court. During the pendency of the trial, defendants shall also maintain the status quo as to the suit property i.e. Land in question and will not alienate, sell, mortgage or in any other way encumber the land in dispute during the pendency of the suit. They shall also not disturb the possession of the Appellant in any manner. The suit also deserves to be decided expeditiously as already directed by this Court in earlier judgment of this Court while deciding misc. appeal.

15. Since the justice should not only be done but appear to have been done also, in the facts & circumstances of the case, without meaning any disrespect to the learned Presiding Officer, civil suit in question deserves to be tried by another Presiding Officer. Therefore, it is also directed that the learned District Judge, Kota shall assign the suit to another Presiding Officer having the jurisdiction.

16. With the aforesaid observations, this appeal is allowed. No order as to costs.