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Judgment
S.N.H. Zaidi, J
This appeal has been directed against the judgement and order dated 22.4.2010 passed by the learned Presiding Officer of DRT-I, Delhi, whereby S.A. No. 3/2009 was allowed restraining the respondent bank (appellant herein) from dispossessing the applicant (respondent No. 1 herein) from various khasra numbers of land situated at village Mewla Maharajpur, Tehsil Ballabhgarh, District Faridabad, (Haryana), as detailed in the said order, till the properties of the applicant and the borrower (respondent No. 2 herein) are identified and demarcated by metes and bounds by a competent court of law or the revenue authority, as the case may be. The facts of the case, in brief, are that the appellant bank had sanctioned a loan of Rs. 38.61 lacs to respondent No. 2 company on mortgage of certain plots of land, including khasra No. 65, Qila No. 8 Min., measuring 5 Khanna and 1 Marla, situated at village Mewla Maharajpur, Tehsil Ballabhgarh, District Faridabad (Haryana), hereinafter referred to as the property in question, by Ved Prakash Khanna, Vinod Kumar Khanna and Manohar Lal Khanna, as security for the repayment of the said loan. Since respondent No. 2 made default in repayment of the loan, the appellant bank filed O.A No. 36/1996 for the recovery of the due amount, which was allowed and a Recovery Certificate (R.C. No. 27/2002) dated 27.11.2001 was issued for the recovery of Rs. 1,33,84,525.22 against the borrower company as well as against the mortgagors, namely, Manohar Lal Khanna, Vinod Kumar Khanna and legal representatives of Ved Prakash Khanna.
The appellant bank also took recourse to the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the SARFAESI Act) for the recovery of due amount and issued notice dated 28.5.20.07, under section 13(2) of the said Act, to the borrower company, demanding an amount of Rs. 6,33,70,210/- and took symbolic possession of the property in question. Thereupon, respondent No. 1, a registered Society, filed an application (S.A. No. 3/2009) under section 17(1) of the SARFAESI Act before the Tribunal below for setting aside the actions taken by the bank and for restraining it from taking the possession of several khasra numbers unless partitioned by metes and bounds. It was averred in that application that the applicant was also a co-sharer of the mortgaged properties which had not been partitioned by metes and bounds among the co-sharers. It was also stated that notifications issued under sections 4 and 6 of the Land Acquisition Act for the acquisition of land measuring 39 Kanals and '19 Marlas, including the property in question, situated at village Mewla Maharajpur, Tehsil Ballabhgarh. District Faridabad was challenged before the Punjab & Haryana High Court through a Writ Petition, wherein the Hon'ble Court, vide order dated 3.12.2007, had ordered for maintaining the status quo. It was also stated that the respondent bank had applied to the District Magistrate under section 14 of the SARFAESI Act for taking possession of the mortgaged properties and the District Magistrate forwarded the copy of that application to S.P., Faridabad and thereafter the property in question was demarcated and the bank intended to take possession of the land with the help of police. It was also stated that the bank may take the possession of land belonging to the mortgagors after getting the land partitioned by metes and bounds with the applicant.
In reply to that application, the bank stressed that the property in question, v/s Khasra No. 65 Min, Qila No. 8, measuring 5 Kanals 1 Marla, was purchased by Manohar Lal Khanna from Smt. Vidyawati Sehgal and it was fully distinguishable and the symbolic possession of the property was taken after it was duly identified in the presence of Ramesh Kumar Khanna, one of the Certified Debtor (CD) of the RC and present President of the applicant Society. It was also said that the Society comprised of almost all the CDs of the Recovery Certificate and the application had been filed only to frustrate the recovery proceedings in the name of the Society, which was lying defunct for several years and had been revived only for the purposes of this litigation.
The learned Presiding Officer allowed the S.A., by the impugned order, with the direction as mentioned above. Feeling aggrieved, the bank has filed the instant appeal.
Mr. R.S. Raju, learned counsel appearing on behalf of the appellant, submitted that the mortgage of the property in question in favour of the bank is not in dispute and has been admitted by respondent No. 1 in clause 5(e) of the S.A. He further submitted that the property in question, which was purchased by Manohar Lal Khanna through the registered sale deed dated 27.8.1964/7.9.1964 does not show that the property was in joint ownership with anybody and shows that she had purchased the same through a registered sale deed dated 13.4.1959. He further submitted that in the sale deed the measurements and location of the property sold were clearly mentioned as 5 Kanal 1 Marla (35 karam x 26 karam) adjacent to Delhi-Mathura Road and accordingly the symbolic possession of the property was taken by the bank after it was duly demarcated/identified by the Girdawar (a Revenue Official) of the concerned Tehsil with the help of Mr. Ramesh Kumar Arora, the engineer/Government approved Value, as is evident from the report dated 2.2.2009 of Mr. Arora.
Mr. Raju further contended that though the respondent Society had asserted its claim of co-ownership over the property in question on the basis of a sale deed dated 11.10.1960, but the same was not filed before the Tribunal below, without there being any explanation as to why it was not produced despite specific objection was taken by the appellant in its reply to the S.A. He pointed out that in respect of the alleged co-ownership of the property in question, reliance has been placed by the respondent Society only on the entries of revenue records, namely, Jamabandi Register, certain extracts of Khasras and Register Intiqal (Transfer Register) which are not relevant as admittedly the property in question is not under cultivation and factory building is standing on it. In support of his contention, Mr. Raju has relied upon the case of Dropdi v. Kanhaiya & Ors., 2007 (1) S.L.J. (P&H) 443, Where in the Hon'ble Punjab & Haryana High Court has observed that entries in Jamabandi are relevant when the land to which it pertains is under cultivation and not when a residential house is constructed thereon. He further contented that even the respondent Society was not consistent in its stand and had taken a contradictory stand in a legal notice issued by its counsel Mr. Pradeep Sharma to the Deputy Commissioner Faridabad, stating that the land was not agricultural land and there was construction on it and entries in Jamabandi of such land were meaningless and also relied upon and the said case of Dropdi v. Kanhaiya & Ors. (supra).
Mr. Raju also contended that the S.A. has been filed in collusion with the borrower Company and the CDs. of the R.C. because almost all the CDs are the members of the respondent Society, which was lying defunct as is apparent from the notice dated 20.10.2006 of the Registrar of Cooperative Societies, New Delhi and has been revived only for the purposes of the litigation to frustrate the recovery proceedings. Mr. Raju has referred to a table showing details of CDs and members of respondent Society (Annexure R-1, page 139 of the paper book) in this regard.
Mr. Raju also contended that the learned Presiding Officer has committed error in not relying upon the demarcation/identification proceedings of the property in question conducted in the presence of the Girdawar and the engineer/Government approved valuer on untenable grounds. He also pointed out that the appellant bank was not a party to the Writ Petition filed before the Punjab & Haryana High Court and as such any interim order made by the Hon'ble Court in that Writ Petition was neither in the knowledge of the appellant nor applicable to it and the interim order dated 8.5.2008 passed by the Hon'ble Court in the Writ Petition (No. 765/2008) filed by the respondent Society, challenging the actions taken under the SARFAESI Act was only up to the next date of hearing, i.e., up to 15.7.2008, which was never extended thereafter and the Writ Petition was also got withdrawn by the petitioners.
Mr. R.P. Luthra, learned counsel for the respondent Society, however, submitted that the respondent Society had purchased several plots of land, including Khasra No. 65 Kila No. 8, the property in question, from Inderaj S/o. Surjeet S/o. Kamla and Rampal S/o. Harbans also Kamla through sale deed dated 11.10.1960 and on the basis of the said transaction the name of the Society was mutated upon in the revenue records. He further submitted that as per revenue records Khasra No. 55 Qila No. 8, measuring 7 Kanals and 15 Marlas was jointly owned by Inderaj and Rampal in equal share but Inderaj, in excess of his half share of 3 kanals and 171/2 Marlas, executed a sale deed of 5 Kanals and 1 Marla in favour of Smt. Vidyawati, who sold the same to Manohar Lal Khanna According to Mr. Luthra, the remaining half share of Rampal was purchased by the respondent Society. He pointed out that the name of the respondent Society was mutated upon the property in question to the extent of one half in the revenue records in the year 1961, i.e., much before the mutation of the name of Manohar Lal Khanna in 1978 or creation of mortgage in favour of the appellant bank. He also pointed out that the name of Manohar Lal Khanna was mutated only to the extent of one half of 7 Kanals and 15 Marlas and not for 5 Kanals and 1 Marla. His contention is that since the respondent Society and Manohar Lal Khanna are the joint owners of the property in question, which has not been partitioned by metes and bounds between them, therefore, unless it is so partitioned the appellant bank cannot take the possession over the property in question. Mr. Luthra fairly admitted that the appellant bank can take possession of Manohar Lal Khanna's share only after getting the property in question partitioned by metes and bounds. In this regard he submitted that there is no evidence on record to show that any partition of the said khasra number had ever taken place either between Inderaj and Hampal or between Rampal and Vidyawati after the share of Inderaj was sold to her, or between the respondent Society and Manohar Lal Khanna. Mr. Luthra has relied upon the principle laid down in Gajara Vishnu Gosavi v. Prakash Nanasahed Kamble & Ors., (2009) 10 SCC 654, in support of his contention wherein the Hon'ble Apex Court has observed that an undivided share of a coparcener can be a subject matter of sale or transfer, but possession cannot be handed over to the vendee unless the property is petitioned by metes and bounds.
There is no dispute that the property in question is not in use for agricultural purposes and industrial structures are standing thereon, as is evident from the photographs annexed with the S.A. (Annexure A-9). Thus, in view of the observation of the Hon'ble Punjab and Haryana High Court in Dropdi v. Kanhaiya & Ors. (supra), as quoted above, the entries of revenue record cannot be looked into for the purposes of the claim of ownership made by the respondent Society. But it appears that a copy of the registered sale deed dated 11.10.1960 executed by Inderaj and Rampal in favour of the respondent Society, through Ved Prakash Khanna, was filed before the Tribunal below by the applicant/respondent along with its written submissions and as such the contention of Mr. Raju that the said sale deed was not filed despite objection, is not tenable. A perusal of the said sale deed shows that the vendors, claiming half share in several plots of land, including plot Khasra No. 65 Min. of Qila 8, had sold 15 Kanals and 19 Marlas out of 17 Kanals and 18 Marlas to the respondent Society. It appears that half share of the vendors was not properly calculated as it is mentioned in the sale deed that Inderaj had already sold his share in Khasra No. 65 Qila No. 8 (7 Kanals and 15 Marlas). After deducting Inderaj's half share (3 Kanals and 17Y2 Marlas) from 17 Kanal and 18 Marlas, the vendors were having proprietary right to the extent of 14 Kanals and 1/2 Marla only and not 15 Kanals and 19 Marlas as has been shown in the sale deed. The respondent Society had, therefore, acquired title to the said extent in the purchased plots, including Khasra No. 65 Qila No. 8. There is no dispute that Inderaj had executed the sale deed of 5 Kanals and 1 Marla in plot Khasra No. 65 Qila No. 8, measuring 7 Kanal, 15 Marlas, in favour of Smt. Vidyawati, but it appears that the sold area was more than his half share of 3 Kanals and 171/2 Marlas. It is also not in dispute that Vidyawati had subsequently transferred her share in that plot to Manohar Lal Khanna vide registered sale deed dated 7.9.1964. The entries qua plot Khasra No. 65 Qila No. a as per Annexure A-2 (colly.) show that the area of the said Khasra No. 65 Qila No. 8 was 7 Kanals 15 Marlas and both, the respondent Society as well as Manohar Lal Khanna, were recorded to the extent of half share in the year 1963-64, 1968-69 and 1973-74. The above circumstances clearly show that both Manohar Lal Khanna and the respondent Society are the joint owners of the property in question. The question whether Manohar Lal Khanna was owner to the extent of 5 Kanals, 1 Marla or 3 Kanals, 171/2 Marlas can only be decided by a competent court and not in these proceedings.
It is also undisputed that no partition by metes and bounds of the plots in question had ever taken place either between Inderaj and Rampal before Inderaj sold his share in Khasra No. 65 Min, Qila No. 8 to Smt. Vidyawati, or between Vidyawati and Rampal before the remaining share of Rampal in the said Khasra member was sold along with other Khasra members by him and Inderaj to the respondent Society, or between Vidyawati and respondent Society before Vidyawati executed the sale deed in favour of Manohar Lal Khanna, or between Manohar Lal Khanna and the respondent Society.
In view of the above circumstance, the impugned order restraining the appellant bank from dispossessing the respondent Society from the land Khasra numbers, as detailed in the order, till they are partitioned by metes and bounds does not appear to be suffering with any illegality or infirmity as it is the settled proposition of law that a joint owner of a property can only transfer his right in that property and cannot transfer any specific portion thereof unless his share is partitioned by metes and bounds and until such partition, he has a right of possession over the entire joint property.
So far as the question of the identification of the property in question. is concerned, a perusal of the sale deed dated 27.8.1964 executed by Smt. Vidyawati does show that an area of 5 Kanals and 1 Marla (35 Karam x 26 Karam) of Khasra No. 65 Min. Qila No. 8, adjacent to Delhi-Mathura Road, was sold to Manohar Lal Khanna. The report dated 2.2.2009 prepared by Ramesh Kumar Arora, a Government approved Valuer, (page 188/189 of appeal paper book) shows that the said area was fully identifiable. Although the reasons for not relying upon this report given by the learned Presiding Officer in the impugned order may not be fully acceptable, yet, in my opinion, specifying a particular portion of land by giving measurements or location could have been relevant had there been a partition of the joint land prior to the execution of the sale deed, because as observed earlier, specific area of a joint property can be transferred only after the share is specified by partition, through metes and bounds. Thus, the identification/demarcation of the property in question by Ramesh Kumar Arora in the presence of the Girdawar or Ramesh Kumar Khanna on the basis of the sale deed dated 27.8.1964, does not entitle the appellant to take possession thereof. The appellant bank can take the possession of the mortgaged property only after getting the share of the mortgagor partitioned by metes and bounds.
The contention of Mr. Raju that the respondent Society was lying defunct for several years or that almost all the CDs of the Recovery Certificate are the members of the respondent Society appears irrelevant for the purposes of determining the legality of the appellant's action qua taking of possession of the mortgaged property.
In view of the foregoing discussion, I am of the considered view that there is no illegality or infirmity in the impugned order in restraining the appellant bank from dispossessing the respondent Society from the property in question until it is partitioned by metes and bounds. The appeal being devoid of any merit is liable to be dismissed and is accordingly dismissed. Cost made easy. Copy of this order be furnished to the parties as per law and be sent to the concerned DRT.