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Mr. Z.K. Saiyed, J. (CAV) - By way of present Second Appeal preferred under Section 100 of the Code of Civil Procedure, the appellant seeks to challenge the judgment and decree passed by the learned 9th Additional District Judge, Ahmedabad (Rural), Mirzapur, in Regular Civil Appeal No. 91 of 2005 dated 15.3.2016, whereby the learned Additional District Judge confirmed the judgment and decree passed by the learned 6th Additional Civil Judge (S.D.), Ahmedabad (Rural) in Regular Civil Suit No.405 of 1987 dated 20.3.1999.
As per the facts of the said so called Civil Suit, present appellant, original plaintiff is residing at village Kathwada whereas the defendant residing at village Bilasia. Originally, subject matter was regarding an agricultural land bearing Survey No. 1851, 1851/1 and both equivalent to Block No.889, Land Survey No. 1891/1/887 and the said lands situated at village Kathwada. As per the plaintiff, he purchased suit land by way of public auction held by original defendant No.3, Special Recovery Officer on 08.07.1984 and it was sold to him by defendant no.3 as plaintiff was the highest bidder. Possession of the land was handed over to the present appellant by defendant no.3 and since then present appellant is in possession and control and power of the suit land as an owner. Original defendant Nos.1 and 2 both have executed an agreement to sale in their favour from one Kanjibhai Manjibhai of village Bilasia and as per the plaintiff''s information, the land was to be sold to the original defendant nos.1 and 2. Only after getting title clearance certificate by that Kanjibhai Manjibhai, the said fact was came to the knowledge of the original plaintiff, present appellant and he came to know that original defendant nos.1 and 2 got executed a power of attorney in their favour from Kanjibhai Manjibhai by stating that Rs.4,200/- was paid to him and in lieu of it, the original defendant nos.1 and 2 were entitled to cultivate the land and to get crop out of the land and the amount of Rs.4,200/- which was paid by the original defendant nos.1 and 2 to the said Kanjibhai Manjibhai and to prevent him from dispossessing the original defendant nos.1 and 2. Both the defendants filed Regular Civil Suit No.22/77 and 36/77 against them. In those matters, Kanjibhai Manjibhai entered into compromise with the original plaintiff of those suit. Amrutlalbhai who was a defendant in the present suit as defendant no.1 Moalabhai Bhudharbhai of Village Kathwada was appointed as an arbitrator and as per that arbitration award said suit lands were to be sold to defendant nos.1 and 2 by Kanjibhai Manjibhai but prior to such things, Kanjibhai Manjibhai bound to get title clearance certificate and was also bound to discharge all the liabilities created by him over the suit land and only thereafter, a sale deed was to be executed and for that survey, instructions were given by the defendant no.1 to Kanjibhai Manjibhai. But Kanjibhai Manjibhai did not paid any attention to the instructions given to him. Moalabhai, the arbitrator filed a Regular Suit No.239 of 1980 against the original defendant nos.1 and 2 Kanjibhai Manjibhai and Arjunbhai and that Suit was decreed by the Court and as per that decree, the original defendant nos.3 and 4 of those suits were ordered to be executed. The sale deed in favor of original defendant no.1 of that suit who was defendant no.1 in Civil Suit No.405 of 1987. Amratlalbhai and as per the order and decree, the roofs which were there of Kanjibhai Manjibhai on the suit land were to be removed and clear land was handed over to the original defendant no.1. Articles like electric motor, starter and apparatus were to be removed and as per the order and decree, sale deed was to be executed and on or before 15.03.1983 by the original defendant no.3 and 4 of that suit and such decree was passed on 11.11.1982 by the Court in Civil Suit No.229 of 1986 which was filed by the arbitrator Moalabhai on 23.02.1984. Original defendant no.1 has filed an Execute Petition No.15 of 1984 based on the said decree. Defendant no.3 put the suit land into auction after carrying all the procedure required under law to recovery about standing dues of Kathwada Co-operative Society and as per that public auction, present appellant was the highest bidder. So his bid was accepted and confirmed and after getting the auction prise from the present appellant physically by original defendant no. 3. As per the present appellant, he paid the out standing dues of Kathwada Co-operative Society out of the amount of that consideration of bid on 08.07.1984 filed by original defendant no.1 and also filed a Suit No.495 of 1984 against the present appellant and Kanjibhai Manjibhai and injunction was obtained against Kanjibhai Manjibhai and present appellant in that suit, present appellant in has filed his written statement and it was declared by him that on 08.06.1984, Special Recovery Officer has had by a public auction accepted the bid of the present appellant handed over the possession of the suit land to the present appellant so the present appellant was in possession. Kanjibhai Manjibhai had stated in his written statement that original defendant no.3 had published a public notice 30 days prior to the 08.06.1984 but as no objection was filed by any one in response of that notice and several litigations were filed and later on Civil Suit No.405 of 1987 was registered after filing written statements. List of documents produced by both the parties then issues framed and after consideration of the oral as well as the documentary evidence and considered arguments, learned trial Court has passed a detailed order with sounds reasons and dismissed the said suit, so original plaintiff has challenged that order of learned trial Court before the District Court, Ahmedabad (Rural) by way of Regular Civil Appeal No. 91 of 2005 in which learned 9th Additional District Judge, Ahmedabad(Rural) has passed a Judgment and decree so appellant has preferred present appeal.
Present appellant has raised substantial questions of law as under :
(1) Whether the Judgment and decree passed by the lower Appellant Court are liable to be quashed and set aside as while deciding it, a lower Court has not followed settled position of law for deciding the appeal preferred to it?
(2) Whether the Judgment and decree of the lower Court is vitiated by not framing and deciding appropriate points for determination as required under Order 41, Rule 31 of the Code of Civil Procedure?
(3) Whether the Courts below had jurisdiction to go behind the auction proceedings and validly continued in favour of the appellant in proceedings of the present suit?
(4) Whether the original owner could have transferred a valid title to the present respondent nos. 1 and 2 when he himself had no title?
(5) Whether the provision of the Bailiff Manual are violated at the time of execution of position warrant?
(6) What is the true construction of the provision of Section 52 of the present property Act and Order 21, Rule 102 of the Code of Civil Procedure in the facts of the case?
(7) Whether the sale in favour of respondent nos.1 and 2 and is hit by Section 48(2) of Gujarat Co-operative Societies Act?
(8) Whether the Counter claim as raised by respondent nos. 1 and 2 is maintainable under law?
(9) Whether in view of the provision of the Order 43, Rule 1 (A) of the Code of Civil Procedure, the question as regards validity of the order allowing counter claim can be raised while challenging the decree of the Court?
(10) Whether the respondent nos. 1 and 2 are entitled to any relief in equity?
(11) Whether without there being any evidence on record, finding as regard the plaintiff taking over the possession of the land from defendant nos. 1 and 2 could have been recorded ?
(12) Whether any order for delivery of possession could have been passed against the appellant when the appellant has admittedly not delivered any title from the original owner/Judgment debtor and his independently derived title though Recovery Officer?
On behalf of the present appellant, learned advocate Mr. Mehul Shah and for respondents Caveator''s, learned advocate Mr. J.V. Jappi appeared before this Court for an admission of the present appeal.
It is submitted by learned advocate Mr. Shah that judgments and decrees which are passed by the Courts below are erroneous and without application of mind and unsustainable in the eye of law and committed material irregularities, it is further submitted that from the documents that, defendants cannot file a counter claim in the year of 1995 when suit of the present appellant was filed on 16.07.1987 and written statement having been submitted on 24.07.1987 so said counter claim is not sustainable in favour of Order 8, Rule 6 (A) of the Civil Procedure Code. The appellant here in being original appellant in Regular Civil Appeal No.91 of 2005, has challenged the final Judgment and decree dated 15.3.2016 passed by learned Additional District Judge Ahmedabad (Rural).
Regular Civil Appeal No. 91 of 2005 was filed against judgment and decree passed by learned 6th Joint Civil Judge (S.D.) Ahmedabad (Rural) in Regular Civil Suit No. 405 of 1987 dated 20.3.1999 filed by the unsuccessful plaintiff who is appellant herein.
The present appellant, who is original plaintiff, filed the Regular Civil Suit No. 405 of 1987 for the relief of declaration and consequential relief qua land bearing survey No. 1851, 1951/1 being block No. 889 and survey No. 1891/1 being block No. 886 of village Kathwada Ta. Daskroi, Dist. Ahmedbad.
Learned advocate Mr. Mehul Shah appearing for the appellant submitted that, the appellant is a bona fide purchaser of suit land in an independent proceeding of public auction held by the Special Recovery Officer-respondent No.3, to recover the dues of Kathwada Co. Op. Society Ltd. It is also submitted by Mr. Shah that the appellant has no connection with kanjibhai Manjibhai or Arjunbhai Kanjibhai, who is original owner and having no connection or nexus with the decree holder and Darkhast which was filed by Defendant Nos. 1 and 2.
Learned advocate Mr. Shah submitted that in view of fact and legal proposition, both the Courts below have committed mistake and consequently the judgment and decree are illegal, erroneous and perverse.
Learned advocate Mr. Shah narrated the facts of the matter at length and also read the contents of sale deeds and also disclosed the role of the Arbitrator from the record itself. He also drawn from the findings recorded in the judgment and order and argued that so far as knowledge is concerned, other side has surfaced the facts and relied on the matter and obtained order. He has drawn attention from the provisions of Section 48 (2) and (3) of the Cooperative Societies Act and relied upon the decision in the case of Special Recovery Officer, Land Development Bank Ltd. Una v. Koli Ramshi Bhikha reported in 1983 (1) GLR 621, more particularly para 2, which reads as under:
"2. The plaintiff has not been able to bring any material on record to snout-that he was the owner of the suit land in 1968 when the land in question was mortgaged by his father Koli Bhikha. If Koli Bhikha was the owner of the suit land in 1968 when it was mortgaged to the Land Development Bank, Una, it could not have been transferred by him to anybody until the mortgage was redeemed. Moreover under Section 48 Subsections (2) of the Gujarat Co-operative Societies Act, 1961, no property or any interest therein which is subject to a charge can be transferred in any manner without the previous permission of the society. Further, under, Section 48 Sub-sections (3) of the said Act any transfer in contravention of Sub-sections (2) is declared to be void. In this case there is no evidence to show that Koli Bhikha had transferred the suit land to his son who is the plaintiff in the suit. Indeed, if he had tried to transfer the land it would have been void and in operative in law."
Learned advocate Mr. Shah further relied upon the Order 8(c) (9) and further relied upon in the case of Rohit Singh and Ors. v. State of Bihar (now State of Jharkhand) reported in AIR 2007 Supreme Court 10 and he has drawn the attention to the paras 18, 19 and 22, which read as under:
"18. Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an inter-pleader suit. Here, defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified forest in the possession of the State. Such a counter-claim, in our view, should not have been entertained by the trial court.
The observations of this Court in Ramesh Chand Ardawatiya (Supra) that:
"Looking to the scheme of Order 8 as amended by Act 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9." are of no avail to defendants 3 to 17 on the facts and in the circumstances of this case. In the reported decision, this Court did not have to consider whether a counter-claim can be filed after the trial is concluded and whether it could be solely directed against a co-defendant. The Court was also not dealing with an inchoate counter-claim in that case.
Having thus found that the counter-claim made by defendants 3 to 17 could not have been entertained as a counter-claim in the case on hand, we find that the High Court has committed an error in remanding the suit to the trial court for proceeding with it afresh. The suit filed by the plaintiff had been dismissed by the trial court. The plaintiff had not appealed against the decree. The dismissal of the suit has thus become final. Since the counter-claim sought to be made is found to be not entertain-able, obviously there is no question of the counter-claim being tried as a counter-claim or being treated as a fresh plaint. It is, therefore, necessary, though defendants 1 and 2 and defendants 18 to 20 have not appealed to this Court against the decision of the High Court, to modify the decision of the High Court by setting aside the order of remand made by that court and simply leaving it as a case where the suit would stand dismissed and in which no counter-claim had been made."
Learned advocate Mr. Shah relied on the case of Ramesh Chand Ardawatiya v. Anil Panjwani reported in AIR 2003 Supreme Court 2508 and more particularly Head Note (D), which reads as under:
"(D) Civil Procedure Code (5 of 1908), Order 8, Rule 6A - Counterclaim - Right to file - Runs with right of filing written statement - No written statement - No counter-claim can be entertained - Defendant set ex parte - Not entitled to file written statement - cannot attack plaintiff by filing counter-claim."
Learned advocate Mr. Shah has focused on the provisions of Cooperative Societies Act and relied upon the decision of M/s. United Engineers & Contractors v. Secretary to Govt., A.P. & Ors. reported in AIR 2013 Supreme Court 2239 and he has emphasized on para 9 of the said decision, which quote as under:
"9. This Court has considered the scope of Order 41, Rule 31 Code of Civil Procedure in H. Siddiqui (dead) by L.Rs. v. A. Ramalingam, AIR 2011 SC 1492 and held as under:
"18. The said provisions provide guidelines for the Appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the Appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the Appellate court''s judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the Appellate court are well founded and quite convincing. It is mandatory for the Appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first Appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur ukhpal Singh v. Thakur Kalyan Singh and Anr., AIR 1963 SC 146; Girijanandini Devi and Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam and Ors. v. R.C. Diocese of Madurai and Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, 2008 SC 171 : (2007 AIR SCW 6384); and Gannmani Anasuya and Ors. v. Parvatini Amarendra Chowdhary and Ors., AIR 2007 SC 2380.
In B.V. Nagesh and Anr. v. H.V. Sreenivasa Murthy, (2010) 113 SCC 530 : AIR 2010 SCW 6184, while dealing with the issue, this Court held as under (Para 4 of AIR SCW):
"The Appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by taw, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the Appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide: Santosh Hazari v. Purushottam Tiwari, AIR 2001 SC 965 and Madhukar and Ors. v. Sangram and Ors., AIR 2001 SC 2171 : 2001 AIR SCW 1804].
Thus, it is evident that the First Appellate Court must decide the appeal giving adherence to the statutory provisions of Order 41, Rule 31 Code of Civil Procedure."
In view of the above submissions, learned advocate Mr. Shah for the appellant lastly prayed to allow present Second Appeal by quashing and setting aside the impugned judgment and order passed by the trial Court.
As against, learned advocate Mr. Japee, on behalf of the respondent - caveators, strongly opposed the Appeal and supported the impugned judgment and order passed by the trial Court, by submitting that the trial Court has rightly passed judgment and order after considering the evidence and settled position of law and submissions of the parties. He submitted that the trial Court has given concurrent findings by passing detailed judgment and order. He also submitted that the appellant has even no right to file Second Appeal under Section 100 of the Code of Civil Procedure. In support of his submission, he relied upon the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and ors. reported in 1999 Supreme Court 2213 and drawn the attention of this Court to para 4, which is as under:
"4. It has been noticed time and again that without insisting for the statement of such substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100, Code of Civil Procedure, It has further been found in a number of cases that no efforts are made to distinguish; between a question of law and a substantial question of law. In exercise of the powers under this Section the findings of fact of the 1st appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal : cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. AIR (1962) SC 1314 held that :-
"The proper test for determining whether a question of law raised in the case is substantial would, in bur opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views, If the question is settled by the highest Court or the general principles to be applied in determining the question are well-settled and there is a mere question of applying those principles or that the plea raised is palpably absurbed the question would not be a substantial question of law."
I have minutely perused the records and as well both the judgment of courts below. The record disclosing the fact that, Kanjibhai Manjibhai was original owner of suit land, who has executed agreement to sale in favour of Original Def. No.1 and No.2. Possession was also handed over in pursuant to this agreement, as part performance of contract. As per terms of agreement, same was to be performed only after obtaining title clear certificate by ori. Owner. The title certificate was not obtained hence civil suits bearing No.22/77 and 36/77 was filed by defendant No.1 and No.2. The both the suits were compromised by the parties, but said compromised was not acted upon. Consequently by mutual consent Mr. Malabhai Bhudarbhai was appointed as arbitrator. Arbitrator filed R.C.S. No.239/80 against Original Defendant Nos.1 and 2, Kanjibhai Manjibhai and Arjunbhai Kanjibhai. The said suit was decreed by Civil Court. As per Court''s decree, the Def. No.3 and Def. No.4 of said suit were ordered to execute a sale deed in favour of Def. No.1 and Def. No.2. Execution petition No.15/84 based on the said decree was filed by present def. No.1 and No.2. In this execution proceeding, after completing all the formalities, the court commissioner was appointed for execution of sale deed by the court. The court commissioner executed the sale deed on 10.4.1985, in favour of Def. No.1 subsequently the respondent No.4 i.e. bailiff, was handed over the possession by executing the warrant issued by Civil Court. As per say of defendant No.1 and Defendant No.2, they have acquired the title and possession. As per submission of Defendant No.1 and No.2, the entire proceeding relied by Original Plaintiff is hit by principle of lis-pendante. As per say of defendant Nos.1 and 2, the Original Plaintiff by doing illegal and criminal action, trespass and unlawfully taken away the possession on 15.6.1995. The defendant Nos.1 and 2 have also filed the counter claim in the this Regular Civil Suit No.405/1987.
The fact emerge from the record that, both the courts below have given very detail judgments considering all most all the aspect relied by both the parties to the proceeding. It is also fact that, both the courts below has not accepted the plea of original plaintiff and consequently the suit and appeal have been dismissed. Thus there is concurrent finding against the plaintiff. In view of this fact and looking to the scope of second appeal, this matter deserve to be decided, accordingly.
As per settled principle of law that, the plaintiff must succeed on the strength of his own case and not on the weakness of defendant''s version. In view of case of Original Plaintiff that, he has derived the title from public auction held by Spl. Recovery officer. In view of this fact cogent and important documentary evidence and oral evidence are required to be produced and proved before court by plaintiff. The court below has rightly farmed the issue No.1 and issue No.2 in this regard. According to my view finding of both the courts below on this issues are in details and given after considering all the aspect and points raised by the parties to the proceeding. It may be noted that basic documents and evidence qua the auction have not been produced by plaintiff. The deposition of Spl. Recovery officer at Exh.152 disclosing that he has no personal knowledge qua the proceeding of auction. This witness stated that, he has no documentary evidence to show that the auction was carried out by Spl. Recovery offices in accordance with law. It is to be noted that Mr. Indravadan Joshi, who carried out auction, has not been examined. The letter at exhi. 154 and 155, where in it is stated by officer of registrar that, the record of auction proceeding has been destroyed, But the author of this letter has not been examined or no affidavit in this regard have been filed. According to me plaintiff has not proved this basic fact before the courts below.
By perusing the admitted sequence, also it is emerge that, plaintiff was very well aware of earlier proceeding about the decree and darkhast, in view of service of summons/notice, of suit No.495/1984 filed by Def. No.1 and No.2 against the plaintiff prior to the date of auction i.e. 8.6.1984. In view of this Original Plaintiff can no be termed as bona fide purchases.
I do not find any force in the submission of Mr. Shah that, this appeal is required to be admitted because it involved the substantial questions of law. The both the courts below has correctly deal, decided and adjudicated all the factual and legal aspect involved this matter. There is no illegality or perversity in the impugned order. The courts below has not committed any error hence interference is not warranted in this appeal. Prima facie there is no substance in appeal.
In view of above fact and circumstances there is no substance in this petition and same is here by not admitted and summarily dismissed.
Civil Application No. 7801 of 2016:
In view of the dismissal of the main Second Appeal, the Civil Application does not survive. Hence, Civil Application stands disposed of.
FURTHER ORDER :
Learned advocate appearing for the applicant requests to stay this order for a period of four weeks.
Request is granted.