Decided on January 13,2021

Hariprakash Sharma Appellant


Vishal Mishra ,J. - (1.) The present petition is being filed being aggrieved by the in- action on the part of the respondents especially respondent no.3 not deciding the objection filed by the petitioner in Case No.q/reader1/Gwalior/2019 and the respondent no.3 is taking steps for auctioning the property of the petitioner. It is submitted that petitioner owns and possess the built up house situated at Pradhan Sahab Ka Bada, Topewala Mohalla, Jiwajiganj, Lashkar, Gwalior bearing Municipal House No.39/425/14 (old) subsequent No.39/1218 and present Municipal House Number is 1179. The four corner of the built up house is mentioned in para 5.1 of the petition.
(2.) It is submitted that the previous owner namely Yash Pradhan S/o Late Shri Avinashchand Pradhan entered into an agreement to sale in favour of the petitioner's wife namely Smt. Krishna Sharma, by which he agreed to sale the aforesaid house to the petitioner's wife and in part performance of the agreement the possession of the said property was handed over to the petitioner's wife on 15.3.1990. Subsequently a sale deed was not executed, therefore, a civil suit was preferred being RCSA No.495/2019 which is for specific performance of agreement to sale. The civil suit is pending consideration and during the pendency of the civil suit, Smt. Krishna Sharma died on 5.11.2018, therefore, the petitioner's name was substituted in place of Smt. Krishna Sharma. On 29.12.2018 respondent no.4 Bank leveled a notice at the conspicuous part of the petitioner's house wherein it has been mentioned that the house no.39/1080 is mortgaged by one Mr. Sanjay Sharma, S/o Hariprasad Sharma Proprietor Aashirwad Group. Thereafter the proceedings were initiated by the Bank and in pursuance to those proceedings the respondent no.3 Tahsildar has issued notice on 18.11.2019. Immediately on receiving the notice, the petitioner has submitted the detailed reply/objection on 20.11.2019. The objection has not been decided by the respondent no.3-Tahsildar and on 2.11.2020 the employee of the respondent no.4-Bank came to the house of the petitioner and trying to forcibly dispossess the petitioner from the house. It is argued that as the civil suit is pending consideration and the petitioner's being the bonafide purchaser of the property in question and in pursuance to the notice the objections have already been submitted before the concerning Tahsildar, therefore, prior to initiation of many proceedings regarding auctioning of the property of the petitioner, the objection ought to have been decided by the learned Tahsildar. The following reliefs is prayed for by the petitioner in the petition: "(I) That, respondent no.3 Tehsildar, Tehsil District Gwalior may kindly be directed to decide the objection filed by the petitioner in Case No.Q/Reader-1/Gwalior/2019. (II) That, till deciding the objection filed by the petitioner respondent may kindly be directed not to take any coercive steps against the petitioner for dispossessed from house in question. (III) Any other writ, order or direction as this Hon'ble Court may deems fit in the facts and circumstances of the case be granted. Costs be awarded."
(3.) During the court proceedings on earlier date i.e. on 9.12.2020 the counsel appearing for the respondent no.4 has pointed out that material fact has been suppressed by the petitioner to the effect that the loan was actually taken by his son Sanjay Sharma and to suppress the aforesaid fact the name of father of Sanjay Sharma has been mentioned as Hari Prasad Sharma instead of Hari Prakash Sharma. This Court has directed to the petitioner to file a specific affidavit with respect to the aforesaid suppression of fact. In pursuance to the same an affidavit has been filed by the petitioner dated 15.12.2020 and in the affidavit the name of Hari Prakash Sharma alias Hari Prasad Sharma, S/o Late Shri Jagannath Prasad Sharma is being mentioned. In para 4 of the affidavit, it is mentioned that his son Sanjay Sharma has taken the loan from the Bank, but on 29.12.2018 he has expired and thereafter on 18.11.2019 a notice has been issued from the office of Tahsildar, District Gwalior in the name of his son. Nowhere in the aforesaid affidavit it is mentioned that Hari Prasad Sharma and Hari Prakash Sharma are one and the same person, only in the nomenclature of the affidavit it is mentioned that names of the father of Sanjay Sharma is being mentioned as Hari Prasad Sharma alias Hari Prakash Sharma. He has further admitted in the affidavit that his son Sanjay Sharma has taken loan from the bank.;

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