Release of property of purchaser though purchased violating
Madhu Mittal
(Querist) 20 January 2020
This query is : Resolved
A civil suit was filed against two persons who are son and father and borrower and guarantor respectively in 2008 in Session court. After fighting on limitation, they stopped to come to court , therefore ex-party decree in favour plaintiff i.e.us in 2011.
The execution petition was filed and a letter under Right to Information was put to Jaipur Development Authority,Jaipur in reply thereof a JDA informed that there is a house of 50 square yards in the name of Guarantor, so court was requested to sale the said plot for decreed amount.
The auction order was pasted at the door of the said house in 2012. Then a new thing came to knowledge that the said house was sold in three parts to three person Mr. X (in 2011), Y and Z at different times, and Mr. X purchased all remaining parts from Y and Z also before 2012. Mr. X contested against the sale of the house on the ground that he purchased the house though in three parts, but by Regd Sale deed.
Y has purchased shop (one part) made in the house by violating Jaipur Development Authority Jaipur rules.
The rules of JDA, Jaipur were violated at all times:
1. Sub division was done of 50 square yards house, by selling three parts to three persons, which can not be done as per The rules of JDA, Jaipur, so as per me sale of parts of House even with Regd Sale deed is void ab intio as it is against the statute.
2.Shop in the house was made and sold as shop in Regd sale deed also, again can not be done as per The rules of JDA, Jaipur, so as per me sale of part of House by making shop in it, even with Regd Sale deed is void ab intio as it is against the statute, as house was for residential purpose.
3. until and unless, transfer is done in the name of purchaser, in the records of JDA,Jaipur, it is not complete.Thus the person Y and Z who purchased parts of house , even with Regd Sale Deed, has not got it transferred in their name, and so they can not sale again those parts simply to Mr. X .
4.No public notice was issued by Purchaser Mr. X at the time of purchasing any Part of the House.
Plaintiff has also placed reliance on a case named Jit Singh and Ors. vs. Piara and Anr. Decided on 11.03.2003 by Hon’ble Punjab and Haryana High Court.
Now in the decision of Session Court on 05.12.2019, all objections of plaintiff were ruled out and it is said that there is regd sale deed in favour of X, so it does not make any difference if the house is still in the name of guarantor in the records of JDA,Jaipur and nothing said about the decision cited Jit Singh and Ors. vs. Piara and Anr, and thus house belongs to Mr. X (purchaser) and released from the execution and ordered to give details of another property of borrower/guarantor.
Now please guide whether in your opinion, the decision is correct or challangable. And Remedy to Plaintiff i.e. creditor, if any about this house.
Raj Kumar Makkad
(Expert) 20 January 2020
As your decree was passed during the year 2012 and the sale proceeds of the house of the guarantor had taken place prior to that period and even you had not moved any application under order 38 Rule 5 of CPC seeking attachment of that property during the trial of the case hence you have no right to move the clock back.
So far as the irregularities in the working of JDA or the concerned persons is concerned which you have indicated in your query is concerned, the same may be true but your purpose is not going to be served merely on that ground. The Development Authority can demolish the illegal construction but even then the ownership shall remain with the person recorded therein.
T. Kalaiselvan, Advocate
(Expert) 29 January 2020
You being the decree holder should be concerned with the title of the property alone and not wit the irregularities that had taken place violating the local municipal law or rules.
You cannot execute the decree for attaching the property which is not in the name of the judgment debtor, therefore the EP can be dismissed.
In tht case you can file a fresh EP by giving details of any other newly found property lying in the name of the judgment debtor.
In my opinion, you may not get any relief even if you plan to prefer an appeal against this aggrieved judgment dismissing your execution petition.
Madhu Mittal
(Querist) 06 February 2020
Respected Sirs, thanks both of you for giving your valuable time to guide me.
Madhu Mittal
(Querist) 25 February 2020
Respected SirS,
In my above query at point 3:
3. until and unless, transfer is done in the name of purchaser, in the records of JDA,Jaipur, it is not complete.Thus the person Y and Z who purchased parts of house , even with Regd Sale Deed, has not got it transferred in their name, and so they can not sale again those parts simply to Mr. X .
Here
Section 66 of The Jaipur Development Authority Act 1982 levies restrictions on the registration of sale deeds until and unless the transferor produces before such registering officer evidence to show that he has paid the premium levied by the authority as provided under clause(a) of Sec 65 of the said act which is a premium on second or subsequent sale of vacant land in Jaipur Region.
1.Will this help that Mr.X purchased parts of the house from Y and Z and at the time of registration, the above rule was violated , so sale is null and void ?
Raj Kumar Makkad
(Expert) 25 February 2020
In the given facts, sale-deed shall not be declared null and void merely on the ground that he has not paid the premium levied by the concerned authority. This may be treated as a lacunae curable even at a later stage (though section 65 mandates to be deposit prior to sale-deed) but this do not make the registered sale-deed as null and void.
