Smt.Sarda Devi, and ors. Vs. Smt.Ratan Mala Devi, and ors. - Court Judgment

Excerpt:
[d. k. jain ; h. l. dattu, jj.] - hindu marriage act, 1955 - section 13b - divorce by mutual consent -- subsequently, in 2001, the parties filed a petition under section 13b of the act before the district court, gurgaon, for dissolution of the marriage by grant of a decree of divorce by mutual consent. (b) whether the court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances. 13b. divorce by mutual consent. 6) admittedly, the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility on 17.08.2001. on the question of whether one of the parties may withdraw the consent at any time before the actual decree of divorce is passed, this court held if the petition is not withdrawn in the meantime, the court shall ... pass a decree of divorce ...". secondly, the court shall be satisfied about the bona fides and the consent of the parties. if there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. on 9-1-1985, the husband and wife together moved a petition under section 13-b of the act for divorce by mutual consent. the court recorded statements of the parties. in appeal, the high court observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the court to dissolve the marriage by mutual consent, if the consent was otherwise free. the issue that came up for consideration before this court was, whether a party to a petition for divorce by mutual consent under section 13-b of the act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. if petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. in our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under section 13-b. so in cases under section 13-b, mutual consent of the parties is a jurisdictional fact. the court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent." the petition is not withdrawn by either party at any time before passing the decree; the most important requirement for a grant of a divorce by mutual consent is free consent of both the parties.1. this second appeal has been filed by defendant 1st party- appellants-appellants challenging the judgments and decree of both the courts below.2. the matter arises out of title suit no. 98 of 1981, which was filed by plaintiff-respondent-respondents first set with respect to a brick-built house over 2 kathas of land bearing municipal survey plot nos. 12525 and 12524 of touzi no.416 bearing jamabandi no. 572 and 560 within thana no.22 appertaining to holding no. 350 under jamalpur police station sakahrapali in the district of munger for the following reliefs:-(i) declaration of title of the plaintiff over the suit property and confirmation of her possession over the same. (ii) restraining defendants first party by permanent injunction from interfering with the plaintiff's title and possession over the suit property.(iii) declaration that the decree passed in title suit no. 10 of 1979 by munsif ist court, munger and the sale-deed dated 02.12.1980 executed by the court on behalf of gulo devi were not binding on the plaintiff and were fit to be set aside.(iv) decree of cost of suit in favour of the plaintiff. (v) any other relief or reliefs to which the plaintiff is deemed entitled.3. plaintiff-respondent first set claimed that the suit property was sold to her by defendant 2nd party by two registered sale- deeds dated 04.12.1978 for valuable consideration and they were put in possession thereof and since then they are continuing in possession after getting their names mutated. it was further claimed by the plaintiff that in the year 1981, defendant first party along with their associates armed with lathi and bhala, forcibly entered into the plaintiff's house and began throwing out the household articles, but after stiff resistance offered by the plaintiff and other members of her family, they left the place, claiming that defendant 1st party had purchased the suit property through the court on 02.12.1980 on the basis of the decree passed in title suit no. 10 of 1979 by munsif-i, munger. hence, it was claimed that the plaintiff had got cause of action for filing the instant suit.4. on the other hand, defendants no.1 and 2, who were defendant 1st party and were husband and wife, filed their written statement denying allegations in the plaint and claiming that they were in possession of the suit land on the basis of purchase through the process of the court and were paying rent to the state of bihar. it was also claimed that suit plot no.12525 belonged to defendant no.3 who entered into an agreement for sale with the answering defendants but when defendant no.3 did not execute any sale-deed in pursuance of agreement for sale, defendant no.2 filed title suit no. 10 of 1979 for specific performance of contract against defendant no.3, which was decreed and when defendant no.3 failed to execute the sale-deed as per the direction of the court, the sale-deed was executed in favour of defendant no.1 through the process of the court on 02.12.1980 and since then defendant first party are in possession of the same. so far plot no. 12524 is concerned, the defendant first party claimed that they purchased the same by registered sale-deed dated 24.05.1960 from one arjun mandal on the basis of which they got their names mutated and are paying rent.5. on the basis of the respective pleadings of the parties, following issues were framed by the trial court:- (i) whether the suit as framed is maintainable? (ii) whether plaintiff has got any cause of action for the suit?(iii) whether the decree passed in t.s. no. 10/1979 and sale deed executed in execution of that decree are legal and binding upon the plaintiff?(iv) whether the suit is properly valued and court fee paid is sufficient?(v) whether plaintiff has acquired valid title to the suit property?(vi) whether the suit is barred by the principle of limitation?(vii) whether the plaintiff is entitled to the relief asked for? (viii) to what relief if any the plaintiff is entitled?6. thereafter, evidence were led by the parties and arguments were raised by their respective learned counsel and finally subordinate judge-v, munger decreed the suit (title suit no.98 of 1981) on contest with cost vide his judgment and decree dated 27.07.1987 after arriving at the following findings :- (a) the suit as framed is maintainable.(b) plaintiff has got good cause of action for the suit. (c) the suit is filed well within the period of limitation and is not barred by the principle of limitation. (d) plaintiff's sale deed has been executed by the admitted owner on 04.12.1978 whereas the sale deed executed by the court in title suit no.10 of 1979 is dated 02.12.1980, hence the subsequent sale deed with respect to the same property cannot be held to be legal and it is a nullity.(e) plaintiff having acquired full title and possession over the suit premises much before the filing of title suit no.10 for 1979, no delivery of possession effected against the plaintiff, who was not a party to the earlier title suit no.10 of 1979, can be held to be legal. (f) defendant cannot legally take the plea of delivery of possession effected by the executing court, as the delivery of possession was not affected against the present plaintiff and order was obtained on wrong and illegal procedure.(g) plaintiff has got exclusive title and possession over the suit premises.(h) plaintiff of the instant suit had no notice or information about title suit no.10 of 1979 or the decree passed therein.(i) title suit no.10 of 1979 filed by defendant 1st party for specific performance of contract was defective as it was filed in the year 1979 without impleading the earlier transferee, namely, the plaintiff of the instant suit who had purchased the suit property by registered document on 04.12.1978.(j) the original owner had already parted with her title and possession of the suit property in the year 1978 in favour of the plaintiff by registered deed on which basis plaintiff of the instant suit throughout remained in possession of the suit property.(k) the plea of absence of knowledge raised by defendant 1st party is not proved and furthermore, the plaintiff's deed of 1978 was a registered document on the basis of which the plaintiff was in possession and it is an admitted fact that defendant 1st party were living just beside the suit house.(l) defendant 1st party, who were plaintiffs in title suit no.10 of 1979 knowingly did not implead the plaintiff nor brought the fact of the sale deed of 1978 before that court.(m) the relief claimed by defendant 1st party in title suit no.10 of 1979 was only for enforcement of contract but no relief for confirmation of possession was granted to him nor could it have been granted. hence in execution of the said decree only sale deed on behalf of gulo devi in favour of defendant 1st party was to be executed and no order of delivery of possession could have been granted in the said execution case.(n) no notice of delivery of possession was issued in the said case nor was any legal procedure adopted for the so-called delivery of possession said to have given to defendant 1st party.(o) the decree of title suit no.10 of 1979 as well as sale deed executed in pursuance of the said decree is not binding upon the plaintiff.(p) the plaintiff is entitled to the relief claimed.7. against the aforesaid judgment and decree of the trial court defendant 1st party filed title appeal no.24 of 1987 in which plaintiff-respondent appeared and contested. on the basis of the pleadings of the parties, the lower appellate court considered two points for decision of the appeal which are as follows:- (i) whether decree passed in title suit no.10 of 1979 and sale deed executed in execution of that decree are legal and binding upon the plaintiff?(ii) whether the plaintiff had acquired valid title and possession over the suit property?8. after considering the pleadings and evidence of the parties as well as the principle of law applicable thereto, the district judge, munger dismissed the said appeal (title appeal no.24 of 1987) vide his judgment and decree dated 20.03.1990 affirming the judgment and decree of the trial court after arriving at the following findings:- (a) it is not in dispute that the plaintiff had purchased the suit property from the original owner gulo devi (defendant no.3) and mungo devi (defendant 2nd party) by virtue of two sale deeds dated 04.12.1978 (ext.5 and ext.5/a).(b) it is also not in dispute that defendant 1st party had obtained an agreement for sale dated 15.11.1978 (ext.a) from the original owner (defendant no.3) with respect to the suit property.(c) it is also not in dispute that a decree of specific performance of contract was obtained by defendant 1st party against defendant 2nd party in title suit no.10 of 1979 in which neither the plaintiff was impleaded nor he was noticed, although he was a purchaser from the admitted owner by registered document executed in 1978 much prior to the institution of the said suit. (d) the decree passed in title suit no.10 of 1979 is not binding on the plaintiff of the present suit and her claim cannot be defeated on the plea that defendant had obtained decree from the court and delivery of possession has been affected which fact has been seriously disputed.(e) defendant 1st party have admitted that soon after delivery of possession was effected in pursuance of the decree passed in title suit no.10 of 1979, defendant no.3 along with her men took forcible possession of the suit premises and they are coming in illegal possession as trespasser.(f) thus having been dispossessed, neither defendant 1st party ever filed petition before the executing court for re-delivery of possession nor did they institute any suit for eviction of the alleged trespasser.(g) the specific claim of defendant 1st party in title suit no.10 of 1979 was that they were given possession of the suit premises as part performance of the agreement for sale dated 15.11.1978 and hence in ex-parte judgment passed in the said title suit no.10 of 1979, it was specifically held that no decree for confirmation of possession over the suit house could be granted because according to the case of the plaintiff of that suit, the vendor was allowed to retain possession of the house as lessee. hence, no delivery of possession having been ordered, there was no occasion for effecting any delivery of possession in favour of defendant 1st party who was plaintiffs in title suit no.10 of 1979.(h) in the said circumstances, the decree passed in title suit no.10 of 1979 is of no consequence so far the plaintiff of the present suit is concerned.(i) it is sufficiently proved that the plaintiff is regularly paying government rent and municipal taxes which is apparent from exts.1 to 4.(j) there is overwhelming evidence that plaintiff is in possession of the suit premises since the execution of the original sale deed in his favour.9. against the aforesaid judgments and decree of both the courts below, defendant 1st party filed the instant second appeal which was admitted on 10.01.1992 by a bench of this court after formulating following substantial question of law:-"whether the court below is right in saying that the decree passed in title suit no.10 of 1979 will not bind the plaintiff ?"10. at the time of hearing of the instant second appeal, learned counsel for defendant 1st party-appellants argued that title suit no.98 of 1981 was filed on 25.08.1981 for declaration of title, confirmation of possession and injunction and subsequently vide order of amendment dated 24.02.1987 another relief was added for declaration that decree dated 10.11.1979 passed in title suit no.10 of 1979 and sale deed dated 02.12.1980 executed by the executing court was not binding on the plaintiffs of title suit no.98 of 1981. hence learned counsel for the appellants claimed that subsequently added relief was barred by the provision of article 59 of the limitation act, 1963 and cannot be legally granted.11. the second point raised by learned counsel for the appellants is that earlier title suit no.10 of 1979 was filed for specific performance of contract by basudeo tanti, the husband of appellant no.1 sharda devi against mostt. gulo devi, who was the sole defendant in that suit and is defendant no.3 in the present suit, it is also claimed that earlier title suit no.10 of 1979 was decreed ex-parte on 10.11.1979 (ext.i) and on its basis execution case no.07 of 1981 was initiated and sale deed dated 02.12.1980 (annexure ext.a/1) was executed through the court for plot no.12525 and delivery of possession was effected on 07.08.1981 (ext.c) and hence the husband of appellant no.1 has been in possession since 07.08.1981, but no explanation has been given by the plaintiffs-respondents that how defendants-appellants were not in possession of the said plot.12. the third point raised by learned counsel for the appellants is that there was an agreement for sale dated 15.11.1978 (ext.a) between the original owner defendant no.3 with defendant 1st party-appellants with respect to the suit property and hence title suit no.10 of 1979 was filed by the appellants for specific performance of contract against the said original owner and there was no occasion for impleading the plaintiff of the instant suit. it was also claimed that plaintiff of the present suit (title suit no.98 of 1981) had knowledge and notice of the aforesaid agreement for sale dated 15.11.1978, but in spite of that the plaintiff of the present suit got registered sale deeds dated 04.12.1978 (ext.5 and ext.5/a) with respect to the suit plot no.12525 and plot no.12524 respectively from gulo devi (defendant no.3) and mungo devi (defendant 2) but the plaintiffs of the instant suit did not take any step in title suit no.10 of 1979 filed by the appellants for specific performance of contract.13. the fourth point raised by learned counsel for the appellants is that the lower appellate court neither considered the evidence of the defendants nor it gave any finding with regard to the relief for declaration of title and possession which was granted by the trial court.14. on the other hand, learned counsel for the plaintiffs- respondents argued that the decree of specific performance of contract passed in title suit no.10 of 1979 was an ex-parte decree dated 10.11.1979 and the said suit was decided in haste-post-haste manner within a few months of filing of the suit for reasons best known to the appellants. it was also claimed that in the instant case (title suit no.98 of 1981) the trial court passed its judgment and decree dated 27.07.1987 after considering the plaintiffs' witnesses in paragraph-11, the defendants' witnesses in paragraph-13, the plaintiffs' documents in paragraph-12 and the defendants' documents in paragraph-14 as well as the other materials before the court in paragraph-15 of its judgment in detail and only thereafter it had arrived at its findings.15. learned counsel for the plaintiffs-respondents also claimed that all the findings of the trial court are findings of facts arrived at after full consideration of the pleadings and evidence of the parties and the lower appellate court has duly affirmed them. it was also argued that when the lower appellate court was not differing from the findings of the trial court, there was no necessity for the lower appellate court to consider each and every piece of evidence which were not necessary for deciding the main issue. learned counsel for the plaintiffs-respondents further claimed that they were coming in possession since their purchase vide registered sale deeds dated 04.12.1978 (ext.5 and ext.5/a), whereas the defendants-appellants never came in possession of any portion of the suit land even for a day and the so-called delivery of possession in execution of the decree passed in title suit no.10 of 1979 was absolutely sham and frivolous.16. so far the first point raised by learned counsel for the appellants is concerned, article 59 of the limitation act, 1963 provides three years as the period of limitation for filing a suit to cancel or set aside an instrument or decree of court from the date when the facts first became known to the plaintiff. in the instant case, title suit no.10 of 1979 was decreed on 10.11.1979 (ext.i) and the alleged delivery of possession in execution of the said decree is said to have been effected on 07.08.1981 (ext.c) and hence title suit no.98 of 1981 which was filed on 25.08.1981 was clearly not barred under the aforesaid provision of law. however, the said title suit no.98 of 1981 was filed for declaration of title, confirmation of possession and a decree of injunction and subsequently another relief was added to the plaint vide amendment dated 24.02.1987 for declaration that decree dated 10.11.1979 passed in title suit no.10 of 1979 as well as the sale deed dated 02.12.1980 executed by the executing court was not binding on the plaintiffs. it is an admitted fact that the plaintiff of title suit no.98 of 1981 was not party to title suit no.10 of 1979. furthermore, the vendor of the plaintiff was the sole defendant in title suit no.10 of 1979 but she could also not appear in the said suit and title suit no.10 of 1979 was decreed ex-parte. apart from the aforesaid facts and circumstances, both the courts below have come to the concurrent findings of fact that plaintiff-respondent was throughout in possession of the suit properties since the date of his purchases by registered documents dated 04.12.1978 (ext.5 and ext.5/a) and he had no notice or information about the said title suit no.10 of 1979 or the execution of sale deed by the court in the said suit. in the aforesaid facts and circumstances none of the reliefs claimed by the plaintiff in his plaint even after amendment are not barred under the provisions of article 59 of the limitation act, 1963.17. so far the second point raised by learned counsel for the appellants is concerned, it is quite apparent that title suit no.10 of 1979 was filed by the defendants-appellants of this second appeal for specific performance of contract against the sole defendant mostt. gulo devi, but without appearance of the said defendant the above mentioned suit for specific performance of contract was decided in undue haste within a few months on 10.11.1979. the courts below after considering the pleadings and evidence of the parties subsequently found that the aforesaid title suit no.10 of 1979 was only for enforcement of the agreement for sale dated 15.11.1978 as it was claimed by the plaintiffs of that suit that the original owner had already given possession of the suit land to him as part performance of contract but no relief even for confirmation of possession much less delivery of possession had been claimed in the said suit and hence no such relief was granted in the ex-parte decree of title suit no.10 of 1979. thus, in the execution of the said ex-parte decree of specific performance of contract only sale deed on behalf of gulo devi (sole defendant of that suit) in favour of defendants-appellants (plaintiffs of that suit) was to be executed by the court and no relief with regard to possession could have been granted in the execution case, but as per the claim of the defendants-appellants delivery of possession was effected in their favour by the executing court on 07.08.1981. the courts below have rightly come to the conclusion that the executing court had gone beyond its jurisdiction and authority while passing the said order of delivery of possession and it was also found that neither any notice of delivery of possession was issued in the execution case nor any legal procedure was adopted for the so-called delivery of possession in favour of the defendants-appellants and hence the entire procedure adopted by the executing court was a nullity and cannot have any impact upon the claim of the plaintiff-respondent, especially when he has been able to prove by valid evidence that he is continuing in possession of the suit properties since the time of his purchase by registered sale deeds dated 04.12.1978.18. so far the third point raised by learned counsel for the appellants is concerned, section 19 of the specific relief act, 1963 does not come in support of the defendants-appellants, as it provides that specific performance of contract may be enforced against either party to the contract or any other person claiming under him by a title arising subsequently to the contract, except transferee for value who has paid his money in good faith and without notice of the original contract. in the instant case, admittedly the sale deeds of the plaintiff-respondent were executed by the original owner on 04.12.1978 i.e. before filing of title suit no.10 of 1979 and after the agreement for sale dated 15.11.1978 between the said original owner and defendants-appellants. both the courts below have concurrently found that the plaintiffs-respondents have been able to prove that they had no notice or information about the said agreement for sale and had paid the entire consideration amount of the sale deeds to the original owners, whereas the defendants-appellants have miserably failed to prove that the plaintiff-respondent had any notice or information of the said agreement for sale.19. so far the fourth point raised by learned counsel for the appellants is concerned, it is quite apparent that plaintiff-respondent had claimed on the basis of registered sale deeds dated 04.12.1978 from the admitted original owner and had also pleaded and proved that on the basis of the said title he remained in possession of the suit premises throughout. the only cloud over his title had been created by the ex- parte judgment and decree passed in title suit no.10 of 1979 and the procedure adopted in execution of the said decree. hence the main relief in title suit no.98 of 1981 was the declaration that the judgment and decree of title suit no.10 of 1979 and the procedure adopted by the executing court in execution of the said decree was not binding upon the plaintiff-respondent of title suit no.98 of 1981. in the said circumstances, the courts below have rightly held that the plaintiff was entitled to the reliefs claimed by him in the suit.20. considering the entire facts and circumstances of the case as well as the evidence and pleadings of the parties, arguments raised by their learned counsel and the respective findings of the courts below, it is quite apparent that the appellants have miserably failed to substantiate the questions raised by them at the time of hearing of the second appeal under order xli rule 11 of the code of civil procedure by any valid material whatsoever. hence, this court finds that no substantial question of law being involved in the instant second appeal it has got no merit at all. accordingly, this second appeal is dismissed but in the facts and circumstances of the case there will be no order as to cost.

Judgment:
1. This second appeal has been filed by defendant 1st party- appellants-appellants challenging the judgments and decree of both the courts below.

2. The matter arises out of Title Suit No. 98 of 1981, which was filed by plaintiff-respondent-respondents first set with respect to a brick-built house over 2 kathas of land bearing municipal survey plot nos. 12525 and 12524 of Touzi no.416 bearing Jamabandi no. 572 and 560 within Thana no.22 appertaining to Holding no. 350 under Jamalpur Police Station Sakahrapali in the district of Munger for the following reliefs:-

(i) Declaration of title of the plaintiff over the suit property and confirmation of her possession over the same.

(ii) Restraining defendants first party by permanent injunction from interfering with the plaintiff's title and possession over the suit property.

(iii) Declaration that the decree passed in Title Suit No. 10 of 1979 by Munsif Ist Court, Munger and the sale-deed dated 02.12.1980 executed by the court on behalf of Gulo Devi were not binding on the plaintiff and were fit to be set aside.

(iv) Decree of cost of suit in favour of the plaintiff.

(v) Any other relief or reliefs to which the plaintiff is deemed entitled.

3. Plaintiff-respondent first set claimed that the suit property was sold to her by defendant 2nd party by two registered sale- deeds dated 04.12.1978 for valuable consideration and they were put in possession thereof and since then they are continuing in possession after getting their names mutated. It was further claimed by the plaintiff that in the year 1981, defendant first party along with their associates armed with lathi and bhala, forcibly entered into the plaintiff's house and began throwing out the household articles, but after stiff resistance offered by the plaintiff and other members of her family, they left the place, claiming that defendant 1st party had purchased the suit property through the court on 02.12.1980 on the basis of the decree passed in Title Suit No. 10 of 1979 by Munsif-I, Munger. Hence, it was claimed that the plaintiff had got cause of action for filing the instant suit.

4. On the other hand, defendants no.1 and 2, who were defendant 1st party and were husband and wife, filed their written statement denying allegations in the plaint and claiming that they were in possession of the suit land on the basis of purchase through the process of the Court and were paying rent to the State of Bihar. It was also claimed that suit plot no.12525 belonged to defendant no.3 who entered into an agreement for sale with the answering defendants but when defendant no.3 did not execute any sale-deed in pursuance of agreement for sale, defendant no.2 filed Title Suit No. 10 of 1979 for specific performance of contract against defendant no.3, which was decreed and when defendant no.3 failed to execute the sale-deed as per the direction of the court, the sale-deed was executed in favour of defendant no.1 through the process of the court on 02.12.1980 and since then defendant first party are in possession of the same. So far plot no. 12524 is concerned, the defendant first party claimed that they purchased the same by registered sale-deed dated 24.05.1960 from one Arjun Mandal on the basis of which they got their names mutated and are paying rent.

5. On the basis of the respective pleadings of the parties, following issues were framed by the trial court:-

(i) Whether the suit as framed is maintainable?

(ii) Whether plaintiff has got any cause of action for the suit?

(iii) Whether the decree passed in T.S. No. 10/1979 and sale deed executed in execution of that decree are legal and binding upon the plaintiff?

(iv) Whether the suit is properly valued and court fee paid is sufficient?

(v) Whether plaintiff has acquired valid title to the suit property?

(vi) Whether the suit is barred by the principle of limitation?

(vii) Whether the plaintiff is entitled to the relief asked for?

(viii) To what relief if any the plaintiff is entitled?

6. Thereafter, evidence were led by the parties and arguments were raised by their respective learned counsel and finally Subordinate Judge-V, Munger decreed the suit (Title Suit No.98 of 1981) on contest with cost vide his judgment and decree dated 27.07.1987 after arriving at the following findings :-

(a) The suit as framed is maintainable.

(b) Plaintiff has got good cause of action for the suit.

(c) The suit is filed well within the period of limitation and is not barred by the principle of limitation.

(d) Plaintiff's sale deed has been executed by the admitted owner on 04.12.1978 whereas the sale deed executed by the court in Title Suit No.10 of 1979 is dated 02.12.1980, hence the subsequent sale deed with respect to the same property cannot be held to be legal and it is a nullity.

(e) Plaintiff having acquired full title and possession over the suit premises much before the filing of Title Suit No.10 for 1979, no delivery of possession effected against the plaintiff, who was not a party to the earlier Title Suit No.10 of 1979, can be held to be legal.

(f) Defendant cannot legally take the plea of delivery of possession effected by the executing court, as the delivery of possession was not affected against the present plaintiff and order was obtained on wrong and illegal procedure.

(g) Plaintiff has got exclusive title and possession over the suit premises.

(h) Plaintiff of the instant suit had no notice or information about Title Suit No.10 of 1979 or the decree passed therein.

(i) Title Suit No.10 of 1979 filed by defendant 1st party for specific performance of contract was defective as it was filed in the year 1979 without impleading the earlier transferee, namely, the plaintiff of the instant suit who had purchased the suit property by registered document on 04.12.1978.

(j) The original owner had already parted with her title and possession of the suit property in the year 1978 in favour of the plaintiff by registered deed on which basis plaintiff of the instant suit throughout remained in possession of the suit property.

(k) The plea of absence of knowledge raised by defendant 1st party is not proved and furthermore, the plaintiff's deed of 1978 was a registered document on the basis of which the plaintiff was in possession and it is an admitted fact that defendant 1st party were living just beside the suit house.

(l) Defendant 1st party, who were plaintiffs in Title Suit No.10 of 1979 knowingly did not implead the plaintiff nor brought the fact of the sale deed of 1978 before that Court.

(m) The relief claimed by defendant 1st party in Title Suit No.10 of 1979 was only for enforcement of contract but no relief for confirmation of possession was granted to him nor could it have been granted. Hence in execution of the said decree only sale deed on behalf of Gulo Devi in favour of defendant 1st party was to be executed and no order of delivery of possession could have been granted in the said execution case.

(n) No notice of delivery of possession was issued in the said case nor was any legal procedure adopted for the so-called delivery of possession said to have given to defendant 1st party.

(o) The decree of Title Suit No.10 of 1979 as well as sale deed executed in pursuance of the said decree is not binding upon the plaintiff.

(p) The plaintiff is entitled to the relief claimed.

7. Against the aforesaid judgment and decree of the trial court defendant 1st party filed Title Appeal No.24 of 1987 in which plaintiff-respondent appeared and contested. On the basis of the pleadings of the parties, the lower appellate court considered two points for decision of the appeal which are as follows:- (i) Whether decree passed in Title Suit No.10 of 1979 and sale deed executed in execution of that decree are legal and binding upon the plaintiff?

(ii) Whether the plaintiff had acquired valid title and possession over the suit property?

8. After considering the pleadings and evidence of the parties as well as the principle of law applicable thereto, the District Judge, Munger dismissed the said appeal (Title Appeal No.24 of 1987) vide his judgment and decree dated 20.03.1990 affirming the judgment and decree of the trial court after arriving at the following findings:- (a) It is not in dispute that the plaintiff had purchased the suit property from the original owner Gulo Devi (defendant no.3) and Mungo Devi (defendant 2nd party) by virtue of two sale deeds dated 04.12.1978 (Ext.5 and Ext.5/A).

(b) It is also not in dispute that defendant 1st party had obtained an agreement for sale dated 15.11.1978 (Ext.A) from the original owner (defendant no.3) with respect to the suit property.

(c) It is also not in dispute that a decree of specific performance of contract was obtained by defendant 1st party against defendant 2nd party in Title Suit No.10 of 1979 in which neither the plaintiff was impleaded nor he was noticed, although he was a purchaser from the admitted owner by registered document executed in 1978 much prior to the institution of the said suit. (d) The decree passed in Title Suit No.10 of 1979 is not binding on the plaintiff of the present suit and her claim cannot be defeated on the plea that defendant had obtained decree from the court and delivery of possession has been affected which fact has been seriously disputed.

(e) Defendant 1st party have admitted that soon after delivery of possession was effected in pursuance of the decree passed in Title Suit No.10 of 1979, defendant no.3 along with her men took forcible possession of the suit premises and they are coming in illegal possession as trespasser.

(f) Thus having been dispossessed, neither defendant 1st party ever filed petition before the executing court for re-delivery of possession nor did they institute any suit for eviction of the alleged trespasser.

(g) The specific claim of defendant 1st party in Title Suit No.10 of 1979 was that they were given possession of the suit premises as part performance of the agreement for sale dated 15.11.1978 and hence in ex-parte judgment passed in the said Title Suit No.10 of 1979, it was specifically held that no decree for confirmation of possession over the suit house could be granted because according to the case of the plaintiff of that suit, the vendor was allowed to retain possession of the house as lessee. Hence, no delivery of possession having been ordered, there was no occasion for effecting any delivery of possession in favour of defendant 1st party who was plaintiffs in Title Suit No.10 of 1979.

(h) In the said circumstances, the decree passed in Title Suit No.10 of 1979 is of no consequence so far the plaintiff of the present suit is concerned.

(i) It is sufficiently proved that the plaintiff is regularly paying government rent and municipal taxes which is apparent from Exts.1 to 4.

(j) There is overwhelming evidence that plaintiff is in possession of the suit premises since the execution of the original sale deed in his favour.

9. Against the aforesaid judgments and decree of both the courts below, defendant 1st party filed the instant second appeal which was admitted on 10.01.1992 by a Bench of this court after formulating following substantial question of law:-

"Whether the court below is right in saying that the decree passed in Title Suit No.10 of 1979 will not bind the plaintiff ?"

10. At the time of hearing of the instant second appeal, learned counsel for defendant 1st party-appellants argued that Title Suit No.98 of 1981 was filed on 25.08.1981 for declaration of title, confirmation of possession and injunction and subsequently vide order of amendment dated 24.02.1987 another relief was added for declaration that decree dated 10.11.1979 passed in Title Suit No.10 of 1979 and sale deed dated 02.12.1980 executed by the executing court was not binding on the plaintiffs of Title Suit No.98 of 1981. Hence learned counsel for the appellants claimed that subsequently added relief was barred by the provision of Article 59 of the Limitation Act, 1963 and cannot be legally granted.

11. The second point raised by learned counsel for the appellants is that earlier Title Suit No.10 of 1979 was filed for specific performance of contract by Basudeo Tanti, the husband of appellant no.1 Sharda Devi against Mostt. Gulo Devi, who was the sole defendant in that suit and is defendant no.3 in the present suit, It is also claimed that earlier Title Suit No.10 of 1979 was decreed ex-parte on 10.11.1979 (Ext.I) and on its basis Execution Case No.07 of 1981 was initiated and sale deed dated 02.12.1980 (Annexure Ext.A/1) was executed through the court for Plot No.12525 and delivery of possession was effected on 07.08.1981 (Ext.C) and hence the husband of appellant no.1 has been in possession since 07.08.1981, but no explanation has been given by the plaintiffs-respondents that how defendants-appellants were not in possession of the said plot.

12. The third point raised by learned counsel for the appellants is that there was an agreement for sale dated 15.11.1978 (Ext.A) between the original owner defendant no.3 with defendant 1st party-appellants with respect to the suit property and hence Title Suit No.10 of 1979 was filed by the appellants for specific performance of contract against the said original owner and there was no occasion for impleading the plaintiff of the instant suit. It was also claimed that plaintiff of the present suit (Title Suit No.98 of 1981) had knowledge and notice of the aforesaid agreement for sale dated 15.11.1978, but in spite of that the plaintiff of the present suit got registered sale deeds dated 04.12.1978 (Ext.5 and Ext.5/A) with respect to the suit Plot No.12525 and Plot No.12524 respectively from Gulo Devi (defendant no.3) and Mungo Devi (defendant 2) but the plaintiffs of the instant suit did not take any step in Title Suit No.10 of 1979 filed by the appellants for specific performance of contract.

13. The fourth point raised by learned counsel for the appellants is that the lower appellate court neither considered the evidence of the defendants nor it gave any finding with regard to the relief for declaration of title and possession which was granted by the trial court.

14. On the other hand, learned counsel for the plaintiffs- respondents argued that the decree of specific performance of contract passed in Title Suit No.10 of 1979 was an ex-parte decree dated 10.11.1979 and the said suit was decided in haste-post-haste manner within a few months of filing of the suit for reasons best known to the appellants. It was also claimed that in the instant case (Title Suit No.98 of 1981) the trial court passed its judgment and decree dated 27.07.1987 after considering the plaintiffs' witnesses in paragraph-11, the defendants' witnesses in paragraph-13, the plaintiffs' documents in paragraph-12 and the defendants' documents in paragraph-14 as well as the other materials before the court in paragraph-15 of its judgment in detail and only thereafter it had arrived at its findings.

15. Learned counsel for the plaintiffs-respondents also claimed that all the findings of the trial court are findings of facts arrived at after full consideration of the pleadings and evidence of the parties and the lower appellate court has duly affirmed them. It was also argued that when the lower appellate court was not differing from the findings of the trial court, there was no necessity for the lower appellate court to consider each and every piece of evidence which were not necessary for deciding the main issue. Learned counsel for the plaintiffs-respondents further claimed that they were coming in possession since their purchase vide registered sale deeds dated 04.12.1978 (Ext.5 and Ext.5/A), whereas the defendants-appellants never came in possession of any portion of the suit land even for a day and the so-called delivery of possession in execution of the decree passed in Title Suit No.10 of 1979 was absolutely sham and frivolous.

16. So far the first point raised by learned counsel for the appellants is concerned, Article 59 of the Limitation Act, 1963 provides three years as the period of limitation for filing a suit to cancel or set aside an instrument or decree of court from the date when the facts first became known to the plaintiff. In the instant case, Title Suit No.10 of 1979 was decreed on 10.11.1979 (Ext.I) and the alleged delivery of possession in execution of the said decree is said to have been effected on 07.08.1981 (Ext.C) and hence Title Suit No.98 of 1981 which was filed on 25.08.1981 was clearly not barred under the aforesaid provision of law. However, the said Title Suit No.98 of 1981 was filed for declaration of title, confirmation of possession and a decree of injunction and subsequently another relief was added to the plaint vide amendment dated 24.02.1987 for declaration that decree dated 10.11.1979 passed in Title Suit No.10 of 1979 as well as the sale deed dated 02.12.1980 executed by the executing court was not binding on the plaintiffs. It is an admitted fact that the plaintiff of Title Suit No.98 of 1981 was not party to Title Suit No.10 of 1979. Furthermore, the vendor of the plaintiff was the sole defendant in Title Suit No.10 of 1979 but she could also not appear in the said suit and Title Suit No.10 of 1979 was decreed ex-parte. Apart from the aforesaid facts and circumstances, both the courts below have come to the concurrent findings of fact that plaintiff-respondent was throughout in possession of the suit properties since the date of his purchases by registered documents dated 04.12.1978 (Ext.5 and Ext.5/A) and he had no notice or information about the said Title Suit No.10 of 1979 or the execution of sale deed by the court in the said suit. In the aforesaid facts and circumstances none of the reliefs claimed by the plaintiff in his plaint even after amendment are not barred under the provisions of Article 59 of the Limitation Act, 1963.

17. So far the second point raised by learned counsel for the appellants is concerned, it is quite apparent that Title Suit No.10 of 1979 was filed by the defendants-appellants of this second appeal for specific performance of contract against the sole defendant Mostt. Gulo Devi, but without appearance of the said defendant the above mentioned suit for specific performance of contract was decided in undue haste within a few months on 10.11.1979. The courts below after considering the pleadings and evidence of the parties subsequently found that the aforesaid Title Suit No.10 of 1979 was only for enforcement of the agreement for sale dated 15.11.1978 as it was claimed by the plaintiffs of that suit that the original owner had already given possession of the suit land to him as part performance of contract but no relief even for confirmation of possession much less delivery of possession had been claimed in the said suit and hence no such relief was granted in the ex-parte decree of Title Suit No.10 of 1979. Thus, in the execution of the said ex-parte decree of specific performance of contract only sale deed on behalf of Gulo Devi (sole defendant of that suit) in favour of defendants-appellants (plaintiffs of that suit) was to be executed by the court and no relief with regard to possession could have been granted in the execution case, but as per the claim of the defendants-appellants delivery of possession was effected in their favour by the executing court on 07.08.1981. The courts below have rightly come to the conclusion that the executing court had gone beyond its jurisdiction and authority while passing the said order of delivery of possession and it was also found that neither any notice of delivery of possession was issued in the execution case nor any legal procedure was adopted for the so-called delivery of possession in favour of the defendants-appellants and hence the entire procedure adopted by the executing court was a nullity and cannot have any impact upon the claim of the plaintiff-respondent, especially when he has been able to prove by valid evidence that he is continuing in possession of the suit properties since the time of his purchase by registered sale deeds dated 04.12.1978.

18. So far the third point raised by learned counsel for the appellants is concerned, section 19 of the Specific Relief Act, 1963 does not come in support of the defendants-appellants, as it provides that specific performance of contract may be enforced against either party to the contract or any other person claiming under him by a title arising subsequently to the contract, except transferee for value who has paid his money in good faith and without notice of the original contract. In the instant case, admittedly the sale deeds of the plaintiff-respondent were executed by the original owner on 04.12.1978 i.e. before filing of Title Suit No.10 of 1979 and after the agreement for sale dated 15.11.1978 between the said original owner and defendants-appellants. Both the courts below have concurrently found that the plaintiffs-respondents have been able to prove that they had no notice or information about the said agreement for sale and had paid the entire consideration amount of the sale deeds to the original owners, whereas the defendants-appellants have miserably failed to prove that the plaintiff-respondent had any notice or information of the said agreement for sale.

19. So far the fourth point raised by learned counsel for the appellants is concerned, it is quite apparent that plaintiff-respondent had claimed on the basis of registered sale deeds dated 04.12.1978 from the admitted original owner and had also pleaded and proved that on the basis of the said title he remained in possession of the suit premises throughout. The only cloud over his title had been created by the ex- parte judgment and decree passed in Title Suit No.10 of 1979 and the procedure adopted in execution of the said decree. Hence the main relief in Title Suit No.98 of 1981 was the declaration that the judgment and decree of Title Suit No.10 of 1979 and the procedure adopted by the executing court in execution of the said decree was not binding upon the plaintiff-respondent of Title Suit No.98 of 1981. In the said circumstances, the courts below have rightly held that the plaintiff was entitled to the reliefs claimed by him in the suit.

20. Considering the entire facts and circumstances of the case as well as the evidence and pleadings of the parties, arguments raised by their learned counsel and the respective findings of the courts below, it is quite apparent that the appellants have miserably failed to substantiate the questions raised by them at the time of hearing of the second appeal under Order XLI Rule 11 of the Code of Civil Procedure by any valid material whatsoever. Hence, this court finds that no substantial question of law being involved in the instant second appeal it has got no merit at all. Accordingly, this second appeal is dismissed but in the facts and circumstances of the case there will be no order as to cost.