Jharkhand High Court
Nand Kishore Prasad vs (A) Md. Halim @ Dara Son Of Late Md. Jasim ... on 29 August, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 4647 of 2006
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Nand Kishore Prasad, son of Late Iswar Lal, resident of Purana Bazar, Gomoh, PO, PS-Gomoh, District-Dhanbad .... ...... Petitioner Versus 1(a) Md. Halim @ Dara son of late Md. Jasim resident of village Rangritand PO & PS Topchachi, District-Dhanbad 2(a) Md. Wakil
(b) Md. Jawed
(c) Md. Salauddin All sons of Late Jaitun Bibi,
(d) Shahida Khatoon, w/o Israr Ahmed
(e) Wahida Khatoon, w/o Md. Kamal R/o Chamra Godam, PO- Gomoh, PS-Hariharpur, District-Dhanbad ..... ...... Respondents With W. P. (C) No. 4648 of 2006
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Shri Kishore Kumar Soni, son of Late Ram Lakhan Prasad, resident of Purana Bazar, Gomoh, PO-Gomoh, PS-Topchanchi, District-Dhanbad .... ...... Petitioner Versus 1(a) Md. Halim @ Dara son of late Md. Jasim resident of village Rangritand PO & PS Topchachi, District-Dhanbad 2(a) Md. Wakil
(b) Md. Jawed
(c) Md. Salauddin All sons of Late Jaitun Bibi,
(d) Shahida Khatoon, w/o Israr Ahmed
(e) Wahida Khatoon, w/o Md. Kamal R/o Chamra Godam, PO- Gomoh, PS-Hariharpur, District-
Dhanbad ..... ...... Respondents
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner(s) : Mr. R.S. Mazumdar, Sr. Adv. For the Respondents : Mr. A. Allam, Sr. Adv.
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11/29.08.2018 In the writ petitions, orders passed in miscellaneous appeals filed against order dated 05.02.2005 passed in Misc. Case No.15 of 2003 and order dated 05.02.2005 passed in Misc. Case No.18 of 2003 have been challenged.
2. Misc. Appeal No.29 of 2005 was filed by Nand Kishore 2 Prasad and Misc. Appeal No.30 of 2005 was filed by Kishore Kumar Soni, both against the aforesaid order dated 05.02.2005.
3. Briefly stated, Title Partition Suit No.57 of 1975 was instituted by Dularo Bibi and others in which 2/9 th share in the suit properties was allotted to them. Pursuant to judgment dated 31.03.1979 in Title Partition Suit No.57 of 1975, a final decree was prepared on 07.03.1990. In Execution Case No.37 of 1990, which was initiated by the decree-holders, an application under Order XXI Rule 97, 98, 99 r/w 101 CPC was filed by Nand Kishore Prasad on 07.07.2003; he is the petitioner in W.P.(C) No.4647 of 2006. His aforesaid application has been registered as Misc. Case No.18 of 2003. The applicant- Nand Kishore Prasad has asserted that he has purchased a part of the suit land comprised under Plot No.163 from Md. Ali and Shaukat Ali who were defendants in the partition suit, by registered sale-deed. Case pleaded by this applicant is that the decree-holder has been alloted 3 khaprapos rooms in Plot No.442 in lieu of their share in Plot No.163 and he has absolute right to retain the house existing over Plot No.163, as owner.
4. The applicant- Kishore Kumar Soni [petitioner in W.P.(C) No.4648 of 2006] has pleaded that he purchased half katha land with a pukka house standing over Plot No.163 through two registered sale-deeds, both dated 08.09.1996 from Shiv Prasad Gupta for valuable considerations. The said Shiv Prasad Gupta is said to have purchased about 184 sq.ft. Land in Plot No.163, total area of which was about 1530 sq.ft. The said Shiv Prasad Gupta had purchased the aforesaid property from Mosmat Tetri Bibi, Md. Hanif and Md. Ali on 24.01.1974.
5. During trial of the aforesaid miscellaneous cases, the parties have examined witnesses and produced documentary evidence, however, Misc. Case No.15 of 2003 and Misc. Case No.18 of 2003 both were dismissed on the ground that claim of the applicants is hit by lis pendence. Against the order dated 05.02.2005 passed in Misc. Case No.15 of 2003, the appellant, who is petitioner here, has filed 3 Misc. Appeal No.30 of 2005, and against order dated 05.02.2005 passed in Misc. Case No.18 of 2003, the appellant, who is also a petitioner here, has preferred Misc. Appeal No.29 of 2005. Both the miscellaneous appeals have been dismissed on a similar ground, that the applicants are bound by lis pendence.
6. The doctrine of lis pendence has been incorporated in section 52 of the Transfer of Property Act, 1882. It is founded on a public policy that if alienations during pendency of the suit are permitted no suit or proceeding can come to an end. The object behind section 52 is that not only parties to the suit are bound by any decision in the suit, all those who claim interest in the suit property by virtue of any transfer of the suit property or a part of the suit property must also be held bound by such decision, however, it is well-settled that section 52 does not prohibit sale or transfer of the suit property by a party to the suit. All that it says is that the purchaser pendente lite cannot have any right independent of the rights of his vendor.
7. Admittedly, all the sale-deeds were executed by the co-sharers either before the suit was instituted or during pendency of the partition suit and while so, prohibition under Order XXI Rule 102 CPC is not attracted against these applicants. It is another thing that the original purchasers or the purchaser pendente lite like the applicant- Nand Kishore Prasad were not made parties to the partition suit and they must be held bound by the decree in the suit. But their application under Order XXI Rule 97, 98, 99 r/w 101 CPC cannot be dismissed simply by saying that they are bound by lis pendence. Once the parties have laid evidence, all that is required to examine is whether transfer of a part of the land comprised under Plot No.163, to the vendors of the applicants, by the co-sharers who have executed the aforesaid sale-deeds, is covered under the share allotted to the co-sharers or not. If the extent of land comprised under the sale-deeds through which the applicants are claiming right, title and interest is covered by the share of the co-sharer/co-sharers in the final decree and 4 in the Advocate-Commissioner's report the applicants were found in possession of the property in question, a decision on merits of their claim must be rendered in both the miscellaneous cases.
8. In view of the aforesaid facts and for the reasons indicated hereinabove, the impugned orders, both dated 05.02.2005 passed in Misc. Case No.15 of 2003 and Misc. Case No.18 of 2003, are set-aside.
9. Both the writ petitions are allowed.
10. Misc. Appeal No.29 of 2005 and Misc. Appeal No.30 of 2005 are restored to their original records. The appellate court shall hear both the appeals, afresh.
(Shree Chandrashekhar, J.) R.K.