# Bachai & Ors v. Ram Nayan & Ors

- **Citation:** (2021) 3 ILRA 1091
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-28
- **Case number:** Second Appeal No. 68 of 2012
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bachai-ors-v-ram-nayan-ors-46163
- **Pages:** 6

## Headnote

Sri Y.S. Saxena

Second Appeal though entertained after
condoning delay-no substantial relief can
be granted-Second Appeal entertained
after 28 years of passing of decree-decree
executed-limitation could be looked at the
time
of
hearing
also-no
ground
for
condoning delay-Appeal dismissed. (E-7)

List of Cases cited:

## Text

3 All. Bachai & Ors. Vs. Ram Nayan & Ors.
1091
method, it would be against the object of
the Act of 2016. The object of speedy
redressal would frustrate if recovery of the
amount is also sought through the civil
court. We thus hold that the purpose and
object of Section 40(1) is to allow recovery
of the amount as arrears of land revenue so
as to expeditiously give the relief to the
consumer having suffered in the hands of
the Promoter. Section 40(1) has to be given
interpretation
by
reading
down
the
provision to make it purposeful and akin to
the object of the Act of 2016. Section 40(2)
is for any other direction either to act in a
particular manner or to restrain a party to
do certain act and execution of it can be
made by the Adjudicating Authority and in
case of failure, by the civil court. Section
40(2) covers basically the case of an order
of injunction or mandatory injunction.

22. Accordingly, we are unable to
accept even the last argument raised by the
counsel for the petitioner. It would otherwise
frustrate the very object of the Act of 2016
and would give rise to the anarchy, existing
earlier, in the hands of Promoters.

23. So far as challenge to Rule 24 (a) of
U.P. Real Estate Regulatory Authority
(General) Regulation, 2019 is concerned, the
issue is kept open. It has not been debated for
the reason that an order of the nature
provided under Regulation 24 (a) has not
been passed in the case in hand. Thus, there is
no occasion for the petitioner to challenge the
vires of the said Regulation in these
proceedings However, as and when the
Authority invokes Regulation 24 (a) of
Regulation, 2019, the liberty is given to
challenge the validity. Thus, issue is kept
open for the aforesaid.

24. Thus, for all the reasons, we are
unable to accept any of the arguments raised
by the counsel for the petitioner. The writ
petition is accordingly dismissed, however,
with the liberty to avail the remedy of appeal
if other than the issue decided by us remains,
which may include the issue towards interest.
----------
(2021)03ILR A1091
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2020

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 68 of 2012

Bachai & Ors. ...Appellants
Versus
Ram Nayan & Ors. ...Respondents

Counsel for the Appellants:
Sri A.P. Singh, Sri Ashutosh Srivastava, Sri
H.C. Singh

Counsel for the Respondents:
Sri Y.S. Saxena

Second Appeal though entertained after
condoning delay-no substantial relief can
be granted-Second Appeal entertained
after 28 years of passing of decree-decree
executed-limitation could be looked at the
time
of
hearing
also-no
ground
for
condoning delay-Appeal dismissed. (E-7)

List of Cases cited:

1. T. Arivandandam Vs T.Vs Satyapal &
anr.,(1977) 4 SCC 467

2.
Krishnasami
Panikondar
Vs
Ramasami
Chettiar & ors.,AIR 1917 PC. 179

(Delivered by Hon'ble Siddhartha Varma, J.)

1. A suit for specific performance of
an agreement was filed by the respondentRam Nayan. It was stated that Samujh, the
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
predecessor in interest of the defendant had
agreed to sell his share of the property in
favour of the plaintiff on 25.1.1969 for a
consideration of Rs.8,000/-. Through the
agreement it was agreed that that defendant
would execute the sale deed in favour of
the plaintiff and get the entire consideration
at the time when the sale would be
registered before the Sub-Registrar. It was
further agreed that sale would be possible
only after Samujh got a bhumidhari
certificate of his share. To get the property
converted from Sirdari to Bhumidhari, an
application was also moved before the
Tehsildar by Samujh on 2.5.1969. Even
though there was no right to transfer the
land, Samujh executed a registered sale
deed in favour of the plaintiff Ram Nayan
and had also received Rs.8,000/-. Samujh,
the brother of the defendant-Bachai, died
on 2.10.1969 and, therefore, when the
defendant did not execute the sale deed in
favour of the plaintiff, the suit was filed. At
the trial stage, the suit was decreed in
favour of the plaintiff only to the extent that
he could recover Rs.8,000/- from the
defendant. However, the remaining claim
was rejected. This gave rise to two First
Appeals, one being First Appeal No.32 of
1980 by which the defendant prayed that
the portion of the decree by which the Trial
Court had directed for return of Rs.8,000/-
be set-aside and another being First Appeal
No.349 of 1980 by which the plaintiff
desired the decreeing of the suit in toto.

2. First Appeal No.32 of 1980 filed by
the defendant was dismissed while the First
Appeal No.349 of 1980 filed by the
plaintiff and others was allowed and the
suit was decreed in toto. The defendantBachai filed a Second Appeal being Second
Appeal No.3123 of 1981 but this Second
Appeal was confined to the decree which
was passed in First Appeal No.32 of 1980.
The Second Appeal did not challenge the
decree as was passed in First Appeal
No.349 of 1980. Second Appeal No.3123
of 1981 was admitted on 16.12.1981 but
was dismissed for want of prosecution on
15.9.2006. A Restoration Application for
recalling the order dated 15.9.2006 was
filed which was again dismissed on
8.11.2006 with the following order :

"This
second
appeal
was
dismissed for want of prosecution on
24.3.2003. It was, however, restored on
22.8.2003 on the condition that the appeal
shall be argued immediately after 15 days
and was directed to be listed. The appeal
was on the list for final hearing, thereafter.
On 28.10.2005 it was directed to be listed
in the next cause list. On 28.11.2005 a
prayer was made by Shri Mahesh Narain
Singh that the matter be passed over. It was
again passed over on the request of
appellant on 30.3.2006, 5.5.2006 and then
on 19.5.2006 it was directed to be listed
peremptorily on 18.7.2006.

On 18.7.2006 once again a
request was made to adjourn the case on
which learned Judge hearing the matter
released the appeal. It was then nominated
to this Court. On 01.9.2006 on the request
of learned counsel for the appellant it was
directed to be listed in the next cause list.
On 15.9.2006 no one appeared and the
second appeal was dismissed. The order
sheets now clearly establish that the
appellants do not want the second appeal of
1981 to be heard by the Court.

Today once again when the Court
asked whether the learned counsel for the
parties are ready to argue, the appellants
have again requested for adjournment. Shri
Y.S. Saxena pointed out that the appeal has
been filed against the civil judge's decision
on a Civil Appeal No.32 of 1980, which
was infact dismissed in favour of the
3 All. Bachai & Ors. Vs. Ram Nayan & Ors.
1093
appellant. The appellant should have been
aggrieved by the decision of civil judge on
appeal No.349 of 1980, which was partly
allowed. The memo of appeal shows that
the appellants have not preferred the appeal
against the judgment in first appeal No.349
of 1980. In this manner the appeal is also
defective.

The
second
restoration
application is accordingly rejected for want
of prosecution with costs."

3. There was one more Restoration
Application filed for recalling the order
dated 8.11.2006 which was again rejected
on 1.10.2007. Another application for
correcting the order dated 1.10.2007
along with a Modification Application
was
filed
which
was
rejected
on
23.10.2009.
Thereafter,
the
instant
Second Appeal being Second Appeal
Defective No.381 of 2010 was filed.
Initially notices were issued to the
respondents. However, on 11.11.2011,
this Court condoned the delay of almost
28
years
and
allowed
the
Delay
Condonation Application. The Second
Appeal was thereafter numbered as 68 of
2012. Subsequently, the appeal was
admitted on 30.4.2012 and the following
substantial
question
of
law
was
formulated :

"Whether lower appellate court
was legally justified in treating the sale
deed dated 02.05.1969 executed by late
Sri Ram Samujh in favour of original
plaintiffs respondents Ram Nayan and
others as an agreement for sale on the
ground that on the date of execution of
the sale deed, Ram Samujh was only
sirdar of the agricultural land in dispute
and application for grant of bhoomidhari
sanad filed on the same date was
afterwards rejected on the ground of
death of Ram Samujh who died on
02.09.1969? "

4. Since there were other respondents
also, notices were issued on 30.4.2012
itself. The Court on the Stay Application
while issuing notices made note of the fact
that the decree for specific performance
had already been executed in favour the
plaintiff-respondents. It also directed that
the appellants would not interfere in the
possession of the plaintiff-respondents. The
plaintiff-respondents were also restrained
from alienating the property in dispute. The
order dated 30.4.2012 which was passed on
the Stay Application is being reproduced
here as under :

"Issue notice. Steps to serve
unrepresented respondents shall be taken
both ways i.e. through ordinary process as
well as registered post.

Sale
deed
pursuant
to
the
impugned decree for specific performance
has been executed by the executing court in
August, 2010 in favour of the plaintiffs
respondents. Accordingly, it is directed that
until further order appellants shall not
interfere in the possession of the plaintiffs
respondents.
Simultaneously,
plaintiffs
respondents are also restrained from
alienating the property in dispute."

5.

Learned
counsel
for
the
defendant/appellant submitted that Samujh,
the brother of the defendant-Bachai had
never agreed to sell the land and the sale
deed which was executed despite the fact
that there was no bhumidhari sanad in
favour of the defendant was absolutely a
waste paper.

6. Learned counsel for the defendantappellant
further
submitted
that
the
application filed by Samujh for the grant of
1094 INDIAN LAW REPORTS ALLAHABAD SERIES
bhumidhari sanad was rejected by the
Assistant, First Class on 5.8.1970. The
plaintiff had assailed the order dated
5.8.1970 but the Revisional Court i.e. the
Court
of
Additional
Commissioner,
Gorakhpur
Division,
Gorakhpur
had
dismissed the Revision and the Board of
Revenue also did not grant the bhumidhari
sanad on the ground that the person who
had applied had died. The plaintiff had filed
a writ petition before this Court being Writ
Petition No.997 of 1973 which was also
dismissed on 12.9.1973 and he, therefore,
submitted that Samujh never got the
bhumidhari sanad. Learned counsel for the
defendant-appellant further submitted that
even the U.P. Laws (Amendment) Act,
1977, would not bring any relief to plaintiff
as the enactment had not made the
deceased brother of the defendant a
bhumidhar.
Learned
counsel
for
the
defendant also raised the question of
limitation with regard to the filing of the
suit itself.

7. Learned counsel appearing for the
plaintiff-respondent, however, in reply
submitted that the appellant was an
extremely mischievous person. When the
earlier second appeal being Second Appeal
No.3123 of 1981 was dismissed in default
on 15.9.2006 and when on 8.11.2006 the
High Court had specifically pointed out
that as the second appeal was filed only
against the judgment and decree passed by
the Civil Judge in Civil Appeal No.32 of
1980 and no second appeal was filed
against the judgment and decree passed in
Civil Appeal No.349 of 1980, the appellant
in that Second Appeal would get no relief,
yet the appellant waited for good four years
thereafter to file the subsequent Second
Appeal in the year 2010. He submitted that
the Second Appeal was wrongly entertained
after the condonation of delay.

8. Learned counsel for the plaintiffrespondent opposed the Second Appeal on
the following grounds :-

(i) When the earlier Second
Appeal was dismissed on 15.9.2006 and the
fact that thereafter while deciding the
Restoration application the High Court had
on 8.11.2006 observed that no substantial
relief could be granted to the appellant in
the Second Appeal No.3123 of 1981, then
there was absolutely no reason why the
appellant should have waited for four full
years to file the instant Second Appeal.
Learned
counsel
for
the
respondent,
therefore, submitted that the filing of the
Appeal would be termed as initiating a
vexatious litigation and the Supreme Court,
he submitted, in a case reported in (1977) 4
SCC 467 : T. Arivandandam vs. T.V.
Satyapal & Anr. had decried the initiation
of any vexatious litigation. He submitted
that the Second Appeal, therefore, ought to
have been dismissed at the very initial stage
itself.

(ii) Learned counsel for the
respondent submitted that when the appeal
was admitted, all the respondents were not
represented and in fact for one respondent
Jogender,
Vakalatnama
was
filed
on
28.7.2014
and,
therefore,
the
other
respondents whom the present counsel was
representing, could, as per law laid down in
AIR 1917 PC. 179 : Krishnasami
Panikondar vs. Ramasami Chettiar &
Ors., once again assail the condonation of
delay. Learned counsel submitted that delay
could not have been condoned after 28
years of the passing of the decree. He
submitted that in a period of 20 years a
generation had grown from childhood to
adulthood and in fact the decree for specific
performance had also been executed by the
Executing Court on 4.9.2010. Rights had
accrued to the plaintiff and their legal heirs
3 All. Bachai & Ors. Vs. Ram Nayan & Ors.
1095
which could not be now snatched away on
account of the fact that the appellant had
slept for good 28 years. He submitted that
in the Revenue Law as also in the common
laws possession had given a right to the
plaintiffs. Even if the appellant had filed
the Second Appeal against a wrong decree,
then also the delay could not be condoned
as after 2006 he waited for good four years
to file the instant Second Appeal and,
therefore, he submitted that if the Second
Appeal was allowed, it would result in an
irreversible injury and damage to the
plaintiff-respondent.

(iii) Learned counsel for the
respondent
submitted
that
as
per
Explanation-4 of Section 11 of the Code of
Civil Procedure, the instant Second Appeal
was
also
barred
by
principles
of
constructive res-judicata as when the earlier
appeal was filed and when it was held that
it
was
not
maintainable,
then
the
subsequent Second Appeal could not have
been filed on fresh grounds.

(iv) Learned counsel for the
plaintiff-respondent further submitted that
even on merits, the Second Appeal was to
be dismissed as the First Appellate Court
had clearly held that there was an
agreement to sell the land and this
agreement, the defendant had to honour,
specially when the defendant had by
operation of law become a bhumidhar with
transferable rights and, therefore, he
submitted that the substantial question of
law also if is answered would go against
the defendant-appellant.

9. Having heard learned counsel for
the defendant-appellant and the learned
counsel for the plaintiff-respondent, I am
of the view that even though the Second
Appeal
had
been
entertained
after
condoning the delay, I feel that no
substantial relief can be granted to the
appellant.
The
Second Appeal
was
entertained after 28 years of the passing
of the decree in First Appeal No.349 of
1980. A generation had grown since the
decree in the First Appeal was passed.
The decree had also been executed. Even
though
the
respondent
no.1
was
represented on the date when the Appeal
was admitted, for the other respondents
notices were issued and in fact one
respondent had also filed Vakalatnama in
the year 2014 and, therefore, as per AIR
1917 PC 179, the question of limitation
could be looked into at the time of
hearing also. This Court upon going
through the affidavit in support of the
delay condonation application finds that
there was absolutely no ground for the
condonation of delay.

10. However, since the appeal was
admitted, it was also, therefore, heard on
merits. I find that the finding of fact
regarding the agreement to sell was such
a finding of fact which could not be now
assailed at the second appellate stage as
the agreement was writ large in the
actions of the deceased Samujh. Even the
registered sale deed dated 2.5.1969 was
an indication of the fact that he intended
to honour the agreement. Therefore, the
question of law as was framed is also
answered against the appellant. There is
absolutely no merit in the Second Appeal.
However, since on 19.1.2012, the counsel
appearing for the respondent no.1 had
agreed that if the appeal was dismissed,
he would pay some more amount to the
appellant, it is directed that a further
amount of Rs.2,00,000/- be paid to the
appellants.

11. With these observations, the
Second Appeal is dismissed.
----------
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)03ILR A1096
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.03.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Second Appeal No. 121 of 2020

Psa Impex Private Ltd. ...Appellant
Versus
Real State Appellate Tribunal Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
Prashant Kumar

Counsel for the Respondent:
Shobhit Mohan Shukla

RERA
Act,2016---section
7-Procedure
applicable to the Authority while taking
decission
u/s
7
does
not
requires
authority to act judicially-if promoter/real
Estate Agent adopting corrupt practiceAuthority is empowered to revoke the
registration-administrative power-rightly
exercised-Authority is only required to
issue notice to further inform its mindAppeal dismissed. (E-7)

List of Cases cited:

1. Sahni Silk Mills Pvt. Ltd. Vs Employees' State
Insurance Corporation; 1994 (5) SCC 346.

2. St. of W.B.l Vs Subhash Kumar Chaterjee;
(2010) 11 SCC 694.

3. Automotive Tyre Manufacturers Association
Vs Designated Authority & ors.; (2011) 2 SCC
258.

4. K. Arockiyaraj Vs Chief Judicial Magistrate &
anr., 2013 SCC Online Madras.

5. Rajendra Pratap & ors. Vs Sadasiva Rao
KTSSK Ltd.; (2012) 4 SCC 781.

6. Jagannath Temple Managing Committee Vs
Siddha Matha.

7. U.P. Avas Evam Vikas Parishad & anr. Vs
Friends Cooperative Housing Society Ltd. & anr.,
(1995) Supplement 3 SCC 456

8.Sahni Silk Mills Pvt. Ltd. & anr. Vs Employees'
State Insurance Corporation 1994 (5) SCC 346

9. Harishankar Bagla Vs. St. of M.P. 31 AIR 1954
SC 465

10.Barium Chemicals Ltd. & anr. Vs Company
Law Board & ors. AIR 1967 Supreme Court 295.

11. Automotive Tyre Manufacturers Association Vs
Designated Authority & ors., 2011 (2) SCC 258

12. St. of W.B.l Vs Subash Kumar Chatterjee &
ors., 2010 (11) SCC 694

13. K. Arockiyaraj Vs Chief Judicial Magistrate &
anr., 2013 SCC online Madras 2576

14. Rajendra Prataprao & ors. Vs. Sadashivrao
Mandalik K.T.S.S.K. Ltd. & ors. 2012 (4) SCC
page 781

15.Jagannath Temple Managing Committee Vs
Siddha Math & ors. reported in 2015 (16) SCC
542

16. Paramjit Singh Patheja v I.C.D.S Ltd. JT
2006 volume 10 Supreme Court 41

17. Sri Sitaram Sugar Company Ltd. & anr. Vs
U.O.I. & ors., 1990 (3) SCC 223

18. Associated Provincial Picture Houses Ltd. Vs
Wednesbury Corporation 1948 (1) Kings Bench
223

19. St. of H.P. Vs Raja Mahendra Pal, 1999 (4)
SCC 43

20.Province of Bombay Vs Kusaldas S. Advani &
ors., AIR 1950 Supreme Court 222

21. Radeshyam Khare & anr. Vs St. of M.P. &
ors., AIR 1959 Supreme Court 107