Case BriefsHigh Courts

Orissa High Court: A Single Judge Bench of Dr A.K. Rath, J., dismissed the petition which challenged the order of the trial court whereby the Court allowed the application of the defendant filed under Order 7 Rule 11(c) CPC and directed the plaintiff to pay ad-valorem court fees.

The facts of the case are as that the plaintiff-petitioner had instituted the suit for declaration of title and declaration that the sale deed executed by him in favor of the defendant as null and void. The litigation started between the parties and the defendant filed an application under Order 7 Rule 11(c) CPC stating that the plaintiff had instituted the suit for declaration that the registered sale deed as void. They contended that the plaintiff was the executant of the sale deed, he sought its cancellation and therefore He should pay ad-valorem court fees. Plaintiff filed an objection to the said application and their counsel, Mr Samir Kumar Mishra and Mr S. Rout contended that the sale deed was a nominal one and no consideration was passed and thus the plaintiff could put his own valuation and pay the court fees.

The Court, relying on the Umakanta Das v. Pradip Kumar Ray, 1986 SCC OnLine Ori 11, dismissed the petition and upheld the order of the trial court, directing the petitioners to pay the ad valorem court fees. [Kumar Soumyakanta Bisoi v. Banita Panda, 2018 SCC OnLine Ori 435, decided on 18-12-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of G. Narendar, J. hearing a civil writ petition set aside the order of revenue authority passed after 30 years, ruling that the said power was exercised after a lapse of a long time and hence was unreasonable.

The present matter pertained to mutation of revenue entries for a property by revenue authorities, suit in relation to which was pending in the court of Civil Judge, Nelamangala. Despite pendency of the suit in a lower court, the Assistant Commissioner, Bangalore rural district directed mutation of names of respondents 4 to 10 in the revenue records pursuant to registration of sale deed in 1977. The said order was confirmed by Deputy Commissioner, Bangalore district. The instant petition was filed for quashing of the order of Deputy Commissioner.

The Court noted that admittedly, the suit pending in lower court was instituted prior to the passing of orders by the Assistant Commissioner and the Deputy Commissioner. Relying on its judgment in S. Shivanna v. Tehsildar, Bangalore North Taluk, 2005 SCC OnLine Kar 604 the  High Court allowed the petition holding that the impugned orders were vitiated on the ground that the said power had been exercised after an extraordinary and unexplained delay of around 30 years.

Further, revenue courts ought not to adjudicate rights with regard to the immovable property once the dispute is seized of by a civil court. The impugned order of revenue authorities was set aside and they were directed to enter details of pending suit in the records which would be deleted after disposal of the suit. [Prakash v. Dy. Commr. Bangalore Rural District,2018 SCC OnLine Kar 2282, decided on 15-11-2018]

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Anjani Kumar Mishra, J. dismissed an appeal being devoid of merits.

The appellant has alleged that he met with an accident and got fractured and subsequently the defendant mislead him by obtained his signature by fraud on the pretext of awarding him compensation which was with the intention of executing a sale deed in the defendant’s favour for which no sale consideration till date has been paid to him. He also alleged that the suit was barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act making it cognizable only by the Revenue Court.

Going by the evidences presented, it was seen that the date on which the sale deed was executed, the defendant withdrew from the bank an amount equivalent to the sale amount. Also before the execution of the sale deed, the appellant’s name was recorded over the land in question thus the suit for cancellation of the sale deed needed no declaration of title making it cognizable by the Civil Court. Further when a sale deed was cancelled the revenue entry prior to it revives leaving no room for further declaration.

Accordingly, there was no question as to jurisdiction and henceforth the Court did not find any reason to interfere with the findings of the lower court. [Ram Pal v. Adesh Kumar,2018 SCC OnLine All 2925, 02-07-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Sanjay Kumar, J. set aside a trial court order abating a title suit ruling that declaration of voidability of a document is within the jurisdiction of a Civil Court.

Petitioner before this Court was the plaintiff in a title suit filed in trial court for cancellation of registered sale deed allegedly executed by her father in favour of the respondent-defendant. The petitioner’s submission before trial court was that the land in dispute is joint family property and that her aged had lost his consciousness for the last six months before his death. The respondent-defendant taking advantage of his mental condition executed the sale deed by committing fraud and forgery. The trial court, noting the submissions of the petitioner, abated the said suit in terms of Section 4(c) of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Aggrieved thereby, the instant petition was filed for quashing the said order.

The High Court noted that the petitioner’s father neither received any consideration money nor executed any document nor affixed his thumb impression on the purported sale deed. The court relied on full bench decision in Ramkrit Singh v. State of Bihar, 1979 SCC OnLine Pat 30 and observed that if a document has to be set aside, civil suit would be maintainable; but a mere declaration of title or a mere declaration that the document is void can be done by the consideration authority. In the instant case, the purported sale deed was voidable and therefore it was within the jurisdiction of civil court to cancel or set aside the said document.

The Court noted that cancellation of purported sale deed was sought by petitioner on the grounds of fraud and forgery which could be determined only after recording evidence of the parties. As such, the impugned order was set aside and trial court was directed to proceed with the suit. [Gangotri Devi v. Bhukhan Singh,2018 SCC OnLine Pat 1984, decided on 02-11-2018]

 

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Asha Arora, J. dismissed a revisional application filed by the petitioner assailing the order of the learned Additional District Judge who reversed the order of the learned Civil Judge granting a decree of pre-emption in favour of the petitioner.

The petitioner filed a case under Section 8 of West Bengal Land Reforms Act 1995, for pre-emption in respect of land which was transferred in favour of the opposite party (OP) by the predecessor-in-interest under a registered sale deed. Petitioner sought pre-emption of the land in question on the ground of adjoining ownership. The application for pre-emption was contested by the OP contending that the petitioner had waived his right, if any, by becoming an attesting witness to the above-mentioned registered sale deed. The application for pre-emption was allowed by the trial court. However, the Additional District Judge reversed the order of the trial court. Aggrieved thus, the petitioner was before the High Court in revision.

The High Court perused the record and found that the petitioner was indeed the attesting witness in the registered deed of sale of the land in question in favour of the OP. The Court relied on the decision of the Supreme Court in Jagad Bandhu Chatterjee v. Nilima Rani, (1969) 3 SCC 445, wherein it was held, under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. A waiver amounts nothing more than an intention not to insist upon the right. The acquiescence in the sale by any positive act amounting to relinquishment of pre-emptive right have the effect of forfeiture of such a right. The High Court was of the opinion that by being an attesting witness to the sale deed, the petitioner by his act and conduct acquiesced to the sale of land sought to be pre-empted. Such an act impliedly amounted to relinquishment of pre-emptive rights and thus the petitioner had waived his right. In such circumstances, the High Court found no irregularity with the order impugned. Therefore, the revision was dismissed. [Tusar Kanti Basu Chowdhury v. Nil Kamal Basu Chowdhury,2018 SCC OnLine Cal 3433, decided on 08-06-2018]