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TAGORE NAGAR VIKAS SAMITI (REG versus BODHURAM AND ORS

High Court of Rajasthan

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TAGORE NAGAR VIKAS SAMITI (REG v BODHURAM AND ORS - CMA Case No. 2578 of 2006 [2006] RD-RJ 586 (4 April 2006)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN,

JAIPUR BENCH, JAIPUR.

S. B. CIVIL MISC. APPEAL NO. 2578/2006

TAGORE NAGAR VIKAS SAMITI & ORS. v

BODHU RAM & ORS. 4th APRIL, 2007.

DATE OF JUDGMENT:

Hon'ble Mr. Justice R. S. Chauhan

Mr. G.P. Sharma for the appellant.

Mr. Girraj Bardar for the respondents.

By Court:

REPORTABLE

This appeal arises out of order dated 13.12.05 passed by the Addl. District & Sessions Judge No.3, Jaipur City, Jaipur, whereby the learned Judge has dismissed the application for temporary injunction under Order 39, Rules 1 and 2 of the Code of

Civil Procedure (henceforth to be referred to as 'the Code' for short).

This case has a long and a chequerred history as two different streams of facts mingle into a single pool of factual matrix.

The dispute is with regard to the land of Khasra No. 178 and 191 situated at village Heerapura on Ajmer Road at Jaipur. The said land measures 7 Bighas and 15 Biswas. The said land was owned by one

Shri Swaroopa @ Ramswaroop. On 1.4.75 Swaroopa @ Ramswaroop alongwith his sons executed an agreement to sell with regard to the said land and with regard to other parcels of land in favour of Anand

Bhawan Grih Nirman Sehkari Samiti Ltd. (henceforth to be referred to as 'the Housing Society', for short ). On 23.9.81 Swaroopa's sons

Madan Lal, who was authorised persons on behalf of Khatedar and his family, executed an agreement with the Housing Society in consequence of the agreement to sell dated 1.4.75. According to the said agreement part payment amounting to Rs. 5,28,000/-, was paid by cash and cheque by the Housing Society. Subsequently, the

Housing Society carved out a residential scheme in the name of

Tagore Nagar and alloted plots to its members.

On 26th December, 1981, the State Government published Rajasthan Land Revenue (Allotment, Conversion and

Regularisation of Agricultural Land for Residential and Commercial

Purposes in Urban Areas) Rules, 1981 (henceforth to be referred to as 'the Rules of 1981' for short). As the name applies, the said Rules governed the conversion of agricultural land for residential and commercial purposes and their regularisation by the appropriate authority. In 1982 the Jaipur Development Aluthority Act, 1982 ( henceforth to be referred to as 'the Act of 1982', for short) was promulgated. The said Act created the Jaipur Development

Authority (henceforth to be referred to as 'the JDA', for short).

According to the said Act of 1982, the entire land of "Jaipur region" falls within the jurisdiction and purview of the JDA. Since the land of the Housing Society was to be converted and regularised in accordance with Rules of 1981, the housing society submitted its plan to the JDA. After giving a technical approval to the Scheme of the Housing Society, the JDA sent the record of the society to the office of the Sub-Divisional Officer (Conversion). On 20.12.83, the

Sub-Divisional Officer (Conversion) issued interim orders of conversion in favour of individual plot holders. Since the society had submitted its scheme to the JDA, on 16.5.84, the said scheme was provisionally approved by the JDA.

However, as the original Khatedars did not enter into a sale deed on the basis of the agreement to sell dated 1.4.75, the

Housing Society filed a suit for specific performance against

Swaroopa and his sons. But, as the agricultural land was being used for a non-agricultural purposes, on 25.7.84, the Patwari Halka submitted a report before the Tehsildar regarding the non- agricultural usage of Khasra No. 191 and 178 measuring 7 Bighas and 15 Biswas. On perusal of the said report, the Patwari initiated proceedings under Section 90A of the Rajasthan Tenancy Act, 1956

(henceforth to be referred to as 'the Act of 1956', for short). The

Tehsildar issued notices to Swaroopa and his sons. But, despite the service of notice, neither Swaroopa nor his sons appeared before the Tehsildar to file their written statement. Therefore, vide order dated 9.8.84, the Tehsildar determined the Khatedari rights of

Swaroopa in khasra no. 178 and 191 and vested the same in the

Government. Thereafter, the said land was declared as "Sawai

Chak". Similarly, vide order dated 12.10.84, the Tehsildar determined

Khatedari rights of Swaroopa in Khasra Nos. 152 and 191 and vested the same with the Government. Likewise, vide order dated 23.10.84, the Tehsildar determined the Khatedari rights of Shri Swaroopa in

Khasra Nos. 148, 149, 190 to 197, 180, 186 and 187 and vested the said land with the Government. Therefore, vide order dated 5.11.85 all these lands comprising of all these Khasras were entered in the revenue record as "Sawai Chak" land and were declared to have vested with the JDA.

Meanwhile, the suit filed by the Society for specific performance was dismissed for non prosecution vide order dated 17.3.86. Subsequently, the Housing Society filed a suit for injunction against Shri Swaroopa and his sons seeking a restraint order against them for not interfering with the peaceful possession of the members of the Housing Society. In the suit, the Housing Society submitted two applications, one under Order 6 Rule 17 and the other under Order 1 Rule 8 of the Code. But, vide order dated 10.1.89 both the applications were dismissed by the learned trial court. Therefore, the Housing Society filed a revision petition before this Court.

However, vide order dated 17.10.89 this Court dismissed the said revision petition, but granted liberty to the individual members of the

Housing Society to file civil suit in case their rights were being infringed. This Court also held that the Housing Society does not have the right to carve out plots and to sell the same to its members.

This finding and the decision has not been challenged by the appellant. Therefore, the said decision has achieved finality.

Meanwhile, in 1989 Shri Swaroopa filed an appeal against Tehsildar's order dated 9.8.84. But, despite the fact that the land was vested in the JDA, despite the fact that the Housing Society had entered into an agreement to sell with Swaroopa and his sons, neither the Society, nor the JDA was arrayed as a respondent-party in the said appeal. Vide order dated 4.6.90, the District Magistrate,

Jaipur District, remanded the case back to the Tehsildar for fresh disposal after providing opportunities to the parties. Vide order dated 6.5.91, the Tehsildar set aside the order dated 9.8.84 and restored the said land back to the original Khatedar Shri Swaroopa and his sons. The said order was never challenged. Therefore, the said order has also achieved finality.

Since the land was restored back to Shri Swaroopa and his sons on 18.11.91, Shri Swaroopa sold the said land in Khasra No. 178 and 191 to the respondent No.7 - Saraswati Punyarth Trust,

Jaipur (henceforth to be referred to as 'the Trust', for short) through a registered sale-deed and gave the possession of the said land to the said Trust. On the other hand, the members of the Housing

Society continuously made efforts for regularisation of their possession on the basis of agreement to sell entered between the

Housing Society and the original Khatedar. On 31.5.94, the JDA called for the list of the allottees from the societies. The Housing

Society submitted its lists. Subsequently the JDA also published the said list.

Meanwhile, since the Trust had bought the land and had taken over the possession of the land, in 2002 the Trust filed a

Reference before the JDA Appellate Tribunal for regularisation of the said land by the JDA. Vide order dated 14.8.03, the learned Tribunal directed the JDA to regularise the land in Khasra No. 178 and 191 measuring 7 Bighas and 15 Biswas in favour of the Trust.

Consequently, the Trust has constructed a School and residential accommodation for the School.

According to the appellants, the members of the

Housing Society came to know about the sale deed with the Trust after the learned Tribunal had passed its order dated 14.8.03.

Therefore, one Shambhu Singh, the appellant No. 2 before this

Court, and sixteen other persons filed a Review Application before the learned Tribunal. The record reveals that in the said Review

Application the respondent-Trust was arrayed as a party. However, vide order dated 16.9.05, the learned Tribunal dismissed the said

Review Application, but granted them the liberty to agitate their case before the Civil Court. Instead of approaching the Civil Court,

Shambhu Singh and sixteen others filed a writ petition, being

SBCWP No.7852/2006, before this Court on 19.4.06. Even in the writ petition, the Trust was arrayed as a party. The said writ petition is still pending before this Court. This Court is informed that so far notices have not been issued in the said writ petition. On 24.4.06 another member of the Housing Society, Ms. Kalpana Mehta also filed a Reference before the learned Tribunal. However, the learned

Tribunal also dismissed her Reference but granted her the liberty to file a civil suit. Consequently, she filed a civil suit (Civil Suit No. 01/2006) before the District Judge, . However, vide order dated 5.8.06, the Addl. District Judge (Fast Track) No. 8 has dismissed the

Civil Suit under Order 7, Rule 11 of the Code.

Meanwhile, the Housing Society went into liquidation.

Therefore, in order to protect the interest of the members of the

Housing Society, the members formed a Tagore Nagar Vikas Samiti

(henceforth to be referred to as 'the Samiti', for short), one of the appellants before this Court. Since the members on individual basis had lost their case before the Civil Court, therefore, the Samiti filed a

Civil Suit for declaration and for cancellation of sale deed dated 18.1.91 entered between the original Khatedar, Swaroopa and his sons and the Trust and for permanent injunction before the Addl.

District & Sessions Judge No.3, Jaipur City, Jaipur. Along with the said suit, the Samiti also filed an application for temporary injunction under Order 39, Rules 1 and 2 of the Code. However, vide order dated 13.12.05, the application for temporary injunction has been dismissed by the learned Judge. Hence, this appeal before this

Court.

Mr. G.P. Sharma, the learned counsel for the appellant, has raised various contentions before this Court ; firstly, the

Housing Society had bought the land from the original Khatedar,

Shri Swaroopa and his sons, through an agreement to sell. Under the agreement the possession was given to the Housing Society.

Subsequently, the appellants had bought individual plots from the

Housing Society. The Housing Society had submitted a scheme for

Tagore Nagar which was provisionally and technically approved by the JDA. Consequently, the members of the Samiti had deposited the conversion charges with the JDA. Thus, under the agreement to sell and by virtue of the possession given to them and by virtue of the approval of the Housing Scheme, the appellants had a strong prima facie case in their favour. Secondly, in the appeal filed by

Swaroop before the District Magistrate, he had not arrayed the appellants, or the Housing Society, or the JDA as a party. Therefore, the order dated 4.6.90, passed by the District Magistrate and the order dated 6.5.91 passed by the Tehsildar were passed behind the back of the Housing Society and the appellants. Thirdly, when it came to the notice of the members of the Housing Society that the land was surreptitiously sold by Swaroopa to the respondents on 18.11.91, they moved a Review Application before the learned

Tribunal seeking a review of its order dated 14.8.03. Against the dismissal of their Review Application, the members, including some of the present appellants before this Court, have filed a writ petition which is still pending before this Court. Thus, they have been pursuing their legal remedies through different Tribunals and

Courts. Since the possession of the land in dispute is with the appellants, the balance of convenience is also on their side.

Fourthly, that in case the peaceful possession of the appellants is disturbed by the respondents, an irreparable loss would be caused to them. Lastly, that the JDA had been converting and regularising housing schemes on the basis of the agreement to sell entered between the original Khatedars and the Housing societies throughout Jaipur. However, in the present case the JDA is ref;using to do so only on the ground that the learned Tribunal has directed the JDA to regularise the land in favour of the respondents vide its order dated 14.8.03.

On the other hand, Mr. Girraj Bardar, the learned counsel for the respondents, has raised a plethora of counter arguments; firstly, that the appellants are claiming a title to the land on the basis of agreement to sell dated 1.4.75. However, an agreement to sell does not transfer the title of the land to the buyer. Secondly, when the Housing Society had filed a civil suit for specific performance, the same was dismissed on 17.3.86. The said order was never challenged by the Housing Society. Hence, the same has attained the finality. Therefore, on the basis of agreement to sell for which no order for specific performance was granted by the civil court, neither the Housing Society, nor the appellants can claim any title to the land on the basis of alleged agreement to sell. Fourthly, once the land was restored and entered in the name of Shri Swaroopa and his sons vide order dated 6.5.91, Swaroopa was free to sell the land to the respondents. In fact the land was sold through a registered sale deed. A registered sale-deed certainly transfers the title of the land from the seller to the buyer. Therefore, the Trust has a better title to the land than the appellants do. Fifthly, that on the basis of the

Reference filed by the Trust before the learned Tribunal, vide order dated 14.8.03, the learned Tribunal had directed the JDA to regularise the land within a period of two months in favour of the

Trust. Subsequently, the Trust has invested money in construction of a School and the residential buildings for the School. The work of the Trust is a charitable work. Sixthly, that the Review Application filed by the members of the Housing Society has been dismissed by the learned Tribunal. Although they have filed a writ petition before this Court, this Court has neither issued notice, nor granted a stay in favour of the appellants. Since both the writ petition as well as the present appeal relate to the same land in dispute, this Court should not interfere till the decision of the writ petition. Seventhly , according to the decision of this Court dated 17.10.89, the Housing

Society did not have the right to carve out the plots and to sell the same to its members. The said judgment has never been challenged.

Therefore, it has achieved finality. Hence this judgment demolishes the case of the appellants claiming a right over the disputed land through the Housing Society. Lastly, the learned trial court had appointed a Commissioner to find out the actual position of the land and the possession thereof. According to the Commissioner's

Report dated 30.11.05, the Trust is in possession of the disputed land. Therefore, the learned counsel has supported the impugned order.

We have heard both the learned counsels and have perused the impugned order and have examined the documents submitted by both the parties before this Court.

A perusal of the relevant record clearly shows that the entire basis of the appellants' claim to the disputed land is the agreement to sell dated 1.4.75. However, it is a settled principle of law that an agreement to sell does not transfer the title of the land from the seller to the buyer. An agreement to sell is merely a written document showing the animus or the intention of the parties to transfer the land or to convey the land eventually from the seller to the buyer. In order to establish one's title over the land, in case the seller does not enter into a sale deed and does not register the said document, the buyer is free to institute a suit for specific performance. Depending upon the evidence adduced during the course of the suit, the civil court is empowered to direct the seller to perform and to implement the agreement to sell. However, in the present case, the civil suit for specific performance filed by the

Housing Society was dismissed vide order dated 17.3.86. The

Housing Society did not file any appeal against the said order. Thus, the said order has achieved a finality. Therefore, the appellants do not have a sale deed in their favour. In fact, the appellants have not produced any registered sale deed in order to establish their title over the disputed land. Therefore, the appellants are not justified in claiming that they have the title or an interest in the said land.

Learned counsel for the appellants has strenuously argued that after completing the proceedings under Section 90A of the Act of 1956, the Tehsildar had vested the property in the JDA.

However, admittedly the District Magistrate, vide his order dated 4.6.90 remanded the case back to the Tehsildar for a fresh decision.

Consequently, vide order dated 6.5.96, the Tehsildar had restored the land in dispute back to the original Khatedar Shri Swaroopa.

Since the order of the Tehsildar was not challenged, the same has also achieved finality. Therefore, subsequent to the said order, the land in dispute did not vest in the JDA, but vested in the original

Khatedars Shri Swaroopa and his sons. Once the land re-vested in the original Khatedar, he was free to sell off the land to the Trust.

For, the agreement to sell dated 1.4.75 had not come into effect and by virtue of the order dated 6.5.91 passed by the Tehsildar, the original Khatedar became the absolute owner of the said land. On 18.11.91 the original Khatedar Swaroopa has entered into a registered sale deed with the Trust. Thus, he transferred the title of the land and the interest in the land from himself to the Trust.

Therefore, in accordance with the registered sale deed, the Trust became the owners of the land in dispute. Moreover, according to the sale deed the possession of the land was also handed over to the Trust. Furthermore, once the learned Tribunal directed the JDA to regularise the land in favour of the Trust, they had invested money in the construction of a School and the residential buildings.

The Commissioner's report dated 30.11.05 also proves that presently the land is in possession of the Trust.

Of course, the appellants have claimed that the housing scheme prepared by the Housing Society was approved by the JDA.

But, admittedly such an approval was a technical and provisional one. It was not a final approval of the scheme. Moreover, even if the scheme were finally approved by the JDA, such an approval does not bestow a title to the Housing Society over the land. For, the declaration of a title is not within the jurisdiction of the JDA.

Moreover, the depositing of conversion charges and the interim conversion of the land by the JDA, likewise, does not fructify into a legally valid title over the land in dispute. Therefore, the contention of the learned counsel for the appellants that the scheme has been approved by the JDA does not buttress his case for the title of the appellants over the land. Hence, there is no force in the said argument.

The members of the Housing Society, including some of the appellants before this Court had filed a Review Application against the order of the learned Tribunal. However, vide order 16.9.05 the learned Tribunal had dismissed the Review Application.

Against the said decision, they had filed a writ petition before this

Court. However, so far this Court has neither issued a notice, nor granted a stay in favour of the appellants. Thus, a coordinate Bench of this Court is presently seized of the matter. Since the matter is already subjudice before a coordinate Bench, it would not be proper on the part of this Bench to pass any order, which may affect the decision of the coordinate Bench in the writ petition.

Admittedly, vide judgment dated 17.10.89, this Court had not only dismissed the Revision Petition, but had also held that the

Housing Society does not have the right to carve out plots and to sell the same to its members. Since the said judgment was not challenged, it has achieved finality. Therefore, the said judgment demolishes the case of the appellants that they have a bonafide and legal title over the land in dispute.

A bare perusal of the impugned order clearly reveals that the learned Judge has meticulously discussed the evidence on record. The learned Judge has correctly concluded that the Trust has a registered sale deed in their favour, that the suit for specific performance was dismissed by the Civil Court and has never been appealed against, that the Commissioner's Report dated 30.11.05 reveals the possession of the land to be that of the Trust. Therefore, the learned Judge has correctly concluded that the prima facie case lies in favour of the Trust and not in favour of the appellants.

Moreover, his conclusion with regard to the balance of convenience and irreparable loss are also valid and legal. Hence, there is neither any perversity nor any illegality in the impugned order.

For the reasons mentioned above, this appeal has no force. It is, hereby dismissed. However, it is clarified that none of the observations made above shall influence the final decision of the suit. The learned trial court is expected to adjudge the case on the basis of the evidence produced during the suit. There shall be no order as to cost.

( R.S. CHAUHAN ) J.

MRG.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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