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Mostt. Manju Kumari Sharma v/s Bhupendra Narain Singh

    M.J.C. 922 Of 2003

    Decided On, 25 August 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE M.L. VISA

    For the Appearing Parties: -----------



Judgment Text

M.L.VISA, J.

(1.) Respondent No. 1 has filed this application for taking legal action against appellant No. 1 Manju Kumari Sharma and her two sons, namely, appellant No. 2 Sarvesh Kumar Trivedi and appellant No. 3 Abhishek Kumar Trivedi under Order XXXIX, Rule 2-A of Civil Procedure Code (In short "CPC") for violation of order dated 2.4.1991 passed by this Court in First Appeal No. 102 of 1991. Counsel of respondent No. 1 submits that appellants have filed first appeal No. 102 of 1991 against the judgment and final decree passed in Partition Suit No. 1 of 1982 against the judgment dated 28.2.1990 and decree dated 14.12.1990 and 30.1.1991 by Subordinate Judge IV, Saran at Chapra. According to him, as per the judgment and decree, the plaintiff-respondent No. 1 is entitled to vacate the defendants-appellants by making payment of consideration money to the contesting defendants-appellants and in the decree, it was directed that the petitioner-respondent No. 1 will make payment of the consi

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deration money of the share of Vidya Narain Singh and defendants No. 5 to 7 regarding suit property to defendants- appellants within a period of sixty days to get the sale deed executed from them and get delivery of possession of suit premises. After filing of this appeal, appellants filed a petition for stay of execution decree and this Court by an order dated 2.4.1991 stayed only the delivery ;of possession of suit premises but did not stay the execution of the other part of the decree with respect to the execution of the sale deed and cost of suit and it was ordered that on execution of bond of Rs. 3,000/- with one surety undertaking thereby to vacate the property in suit within one month if appeal is dismissed and in default to vacate within one month, the appellant shall pay aforesaid amount to the decree holder and with a further undertaking that they would not change the status quo of the property in their possession failing which the aforesaid amount shall be forfeited. Counsel of respondent No. 1 submits that after passing this order, the appellants who are judgment debtors have now executed the sale deed No. 12300 dated 21.10.2002 in favour of Ramesh Prasad Yadav and Sri Ram Tiwary and they have come in physical possession over the suit property and vendees are threatening the petitioner by many ways and local police is not taking any action against them and life and property of petitioner is in danger. According to petitioner, appellants have violated the order dated 2.4.1991 passed by this Court and they are liable to be prosecuted for contempt. Appellants have filed counter affidavit stating therein that during the pendency of this appeal, appellant No. 1 died on 24.2.2001 and, thereafter, his heirs were substituted and there was no order passed by this Court restraining the appellants from alienating the suit property in their possession and simply bond was ordered to be executed which they executed and when after the death of appellant No. 1, petitioner-respondent No. 1 wanted to throw the appellants on road by taking help of undesirable elements, the appellants had no option but to negotiate the property. The case of appellants is that they have not violated order dated 2.4.1991 passed by this Court and from the reading of the order, it appears that consequences resulting from failure to comply the order are mentioned. It is also stated by appellants that they have very high regard for the order of this Court as they have not violated any order of this Court, therefore, application filed by petitioner-respondent No. 1 be dismissed.

(2.) On the basis of application under consideration, this separate case numbered as MJC No. 922 of 2003 was instituted and by order dated 19.5.2003 passed by this Court, Registrar General was ordered to get the evidence in the matter recorded through any of the Joint Registrar and after completion of the evidence, place the matter before the Court for hearing on the violation matter. In compliance of this order, evidence of witnesses produced by both the parties in the contempt matter has been recorded and the matter has been placed before the Bench.

(3.) Petitioner-respondent No. 1 has examined himself as PW 1 and in his evidence, he has stated that he had filed partition suit No. 1 of 1982 against the appellants and that suit was decided in his favour and Execution Case No. 4 of 1991 was filed for execution of decree and against the judgment and preliminary decree of Court below, appellants filed First Appeal No. 126 of 1990 and when final decree was being prepared, appellants filed a stay petition which was dismissed and, thereafter against the final decree, appellants filed first appeal No. 102 of 1991 and they filed a petition for stay of further proceeding of execution case and this petition was heard and on 2.4.1991, order for maintaining status quo of suit property was passed and appellants were ordered to give undertaking which they gave (Exhibits 1 to 1/2) but on 21.10.2002 after executing the sale deeds in favour of strangers, they put the strangers in possession of the property. He has proved the certified copy of sale deed (Exhibit A). He has further said that the Circle Inspector, Mufassil recommended for initiating a proceeding under Section 107 of Criminal Procedure Code (Exhibit B). According to him, purchasers are in possession of the property sold by appellants in violation of order of this Court. From the side of appellants, five witnesses have been examined. Birendra Rai OPW 1 and Hare Ram Choudhary OPW 2, in their evidence, have stated that although the house has been sold to Ramesh Prasad and Sri Ram Tiwary but even after sale of this house, appellants are living in that house. They have further said that the house is still in the same position as it was purchased and no change has been made in the status of the house. Sarvesh Kumar Trivedi is OPW 3. He, in his evidence; has said that the suit house was purchased by his father from Vidya Narain Singh and Dulari Devi and at that time he was minor and after purchase of the house, his family is living there and still the house is in the possession of his family members. He has admitted that on 24.10.2002, the suit house was sold to Ramesh Prasad Yadav and Sri Ram Tiwary but at the same time, he has said that his family members are in possession of the house. Ramesh Prasad Yadav OPW 4 and Sri Ram Tiwary OPW 5 are purchasers of the suit house from the appellants. They both have said that they purchased the suit house from the appellants but have said that they were not knowing about the litigation in respect of suit house at the time of their purchasing the same and even after purchase of the suit house, they are not living in that house and appellants are still in possession of the house.

(4.) Learned counsel of petitioner-respondent No. 1 has submitted that in the sale deed itself, it is mentioned that possession of the house to vendees has been given and in report submitted by Circle Inspector for initiating a proceeding under Section 107 of Criminal Procedure Code, it is stated that on 21.10.2002, appellants vacated the house and put the vendees in possession of the same. According to him, these documents clearly show that the stand of appellants that they are still living in the suit house is not correct and they after executing sale deed in favour of vendees have put them in possession of the suit house. Sale deed has been marked A for identification and similarly report of Circle Inspector for initiating proceeding under Section 107 of Criminal Procedure Code has been marked B for identification. When the purchasers themselves, by appearing in person, have stated on oath that although they have purchased the suit house but they are not in possession and suit house is still in the possession of appellants, merely from the averment in sale deed that purchasers have been put in possession of the suit house, their evidence cannot be discarded. Their evidence clearly show that the sale deed was not acted upon. So far report of Circle Inspector for initiating a proceeding under Section 107 of Criminal Procedure Code is concerned, admittedly, Circle Inspector has not been examined and merely on the basis of a photo copy of this report which has been marked B for identification, it cannot be inferred that the purchasers were put in possession of the suit house.

(5.) No doubt on 2.4.1991, this Court directed the appellants to give; an undertaking by executing a bond of Rs. 3,000/- that they would vacate the property in suit within one month if appeal is dismissed and in default to vacate within one month they shall pay aforementioned amount to the decree holder and with a further undertaking that they would not change the status quo of the property in their possession failing which the aforesaid amount shall be forfeited but then merely executing a sale deed does not mean that physical features of. property were changed after passing of the aforesaid order. It is not there case of the petitioner that any further construction in the suit property has been made or its any portion has been demolished. By order dated 2.4.1991, appellants were simply directed not to change the status quo of the property in their possession. The property is still in their possession and, as stated above, nothing has been brought on record to show that any change in the physical features of the property has been made. It is true that after passing of this aforesaid order, appellants should not have executed the sale deed but then purchasers are pendente lite purchasers and apart from it, the sale deed executed by appellants is subject to result of this appeal and is hit by Section 52 of Transfer of Property Act. The effect of execution of sale deed by appellants during the pendency of this appeal will be considered at the time of final hearing of the appeal but so far present application of petitioner-respondent No. 1 is concerned, I find no merit in the application which is, accordingly, dismissed
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