Rajasthan High Court - Jodhpur
Gordhan vs Prasanna Chand Burad on 3 March, 2021
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civ. Leave To Appeal No. 12/2018
1. Gordhan S/o Shri Bhura Ram Ji, Aged About 37 Years, B/c
Mali, R/o Dholiwadi Ka Baas, Sojat City, Tehsil Sojat,
District Pali.
2. Laxmi Narayan S/o Shri Bhura Ram Ji, Aged About 31
Years, B/c Mali, R/o Dholiwadi Ka Baas, Sojat City, Tehsil
Sojat, District Pali.
----Appellants
Versus
1. Prasanna Chand Burad S/o Shri Jawari Lal Ji Burad, B/c
Oswal, R/o Narsingh Gali, Beawar, District Ajmer.
2. Abudl Raseed S/o Fateh Mohammed, B/c Musalman,
Silawat, R/o Sojat City At Present Dholan Gali, Below
Madina Masjid, Chhimpa Mohalla, Beawar, District Ajmer.
3. Ayub Bhai S/o Abdul Qayyum, B/c Silawat Musalman, R/o
Muslim Musafirkhana Wali Gali, Choonpach Mohalla,
Beawar, District Ajmer.
----Respondents
Connected With
S.B. Civ. Leave To Appeal No. 11/2018
1. Babu Lal S/o Shri Sona Ram Ji, Aged About 44 Years, By
Caste Mali, Resident Maila Ka Chowk, Sojat City, Tehsil
Sojat
2. Sohan Lal S/o Shri Mangi Lal Ji, Aged About 45 Years, By
Caste Mali, Resident Of Dholiwadi Ka Baas, Sojat City,
Tehsil Sojat
----Appellants
Versus
1. Prasanna Chand Burad S/o Shri Jawari Lal Ji Burad, By
Caste Oswal, Resident Of Narsingh Gali, Beawar
2. Abdul Raseed S/o Fateh Mohammed, By Caste Musalman
Silawat, Resident Of Sojat City At Present Dholan Gali,
Below Madina Masjid, Chhimpa Mohalla, Beawar
3. Ayub Bhai S/o Abdul Qayyum, By Caste Silawat
Musalman, Resident Of Muslim Musafirkhana Wali Gali,
Choonpach Mohalla, Beawar.
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----Respondents
For Appellant(s) : Mr. R.K.Thanvi, Sr. Advocate assisted
by Mr. Narendra Thanvi.
For Respondent(s) : Mr. Rajat Dave.
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment REPORTABLE 03/03/2021 These applications for leave to appeal have been filed by the applicants - purchasers aggrieved against the judgments & decrees dated 10/4/2014, amended on 6/3/2017, passed by the Addl. District Judge, Sojat.
The suit for specific performance was filed by the respondent Prasanna Chand in relation to agricultural land situated at village Basni Jodhraj, Patwar Area - Kharia Soda, Tehsil, Sojat in relation to agreement to sell dated 24/8/1995 on 29/1/2011 against the defendants - Abdul Raseed and Ayub Bhai. The suit was resisted by the defendants.
The trial court framed seven issues and after evidence was led by the plaintiffs and the defendants did not lead any evidence, decreed the suit on 10/4/2014. Whereafter, the decree was amended on 6/3/2017.
In the applications filed by the applicants, it is indicated that the land in question has been purchased by the applicants from the defendants by registered sale deeds dated 5/10/2011, the applicants are bonafide purchasers and were not aware about the filing / pendency of civil suit and it is only when the Patwari (Downloaded on 03/03/2021 at 08:57:12 PM) (3 of 9) [CLA-12/2018 with CLA-11/2018] informed them in the beginning of June, 2018 that the plaintiff had approached him for making mutation entry in his favour, after the sale deed was executed under the orders of the court on 23/5/2018, the applicants became aware of passing of the impugned decree.
It is submitted that the applicants are in peaceful, long & settled possession of the land from the date the sale deeds were executed in their favour by the defendant in the suit.
Further submissions have been made that as the plaintiff has initiated proceedings to dispossess the applicants from the suit property, the applicants be granted leave to challenge the impugned judgments & decrees dated 10/4/2014, amended on 6/3/2017, in absence whereof the same would result in grave undue hardship to the applicants as they would be dispossessed from their own land. It was prayed that they may be granted leave to defend.
Along with applications, copies of sale deed and mutation entries have been filed.
Reply to the applications has been filed by the plaintiff - decree holder inter alia raising preliminary objections and has submitted that the defendants in the suit have contested the matter on merits and after evidence was led by the plaintiff, the trial court has passed the judgments & decrees impugned. It is submitted that the defendants did not disclose the factum of execution of so called sale deed dated 5/10/2011 before the trial court and that the transfer dated 5/10/2011 is automatically rendered null and void on account of agreement dated 24/8/1995 (Downloaded on 03/03/2021 at 08:57:12 PM) (4 of 9) [CLA-12/2018 with CLA-11/2018] and, therefore, the applicants have no right. Allegations have been made that the applicants were aware of the litigation and that they were acting in collusion with the defendants and that the transfer was hit by the provisions of Section 52 of the Transfer of Property Act, 1882 ('the T.P. Act').
Submissions have also been made that the applicants can only resist the decree under the provisions of Order XXI Rule 98 CPC and are not entitled to maintain the applications seeking leave to file appeal and, therefore, the applications deserve to be dismissed.
Learned counsel for the applicants made submissions that the transfer, though made during the pendency of the suit, the applicants were neither aware of filing of the suit nor even aware of passing of the decree and execution of sale deed in favour of the plaintiff. Ever since the sale deed was executed in their favour on 5/10/2011 they are in possession of the land in question and, therefore, being bonafide purchasers they are entitled to file appeal against the decrees impugned.
Submissions were sought to be made in relation to the merit of the decrees to indicate that the trial court should not have decreed the suit for specific performance.
Reliance was placed on the judgment in Thomson Press (India) Limited vs. Nanak Builders & Investors Pvt. Limited & Ors. : (2013) 5 SCC 397 and Padmakumari & Ors. vs. Dasayyan & Ors. : 2015 (3) Civil Court Cases 001 (SC).
Learned counsel for the respondent - plaintiff vehemently opposed the submissions. It was submitted that the agreement to (Downloaded on 03/03/2021 at 08:57:12 PM) (5 of 9) [CLA-12/2018 with CLA-11/2018] sell was executed by the plaintiff in the year 1995. The suit was filed on 29/1/2011, wherein, interim stay was granted on 9/3/2011, which was ordered to continue till further orders on 24/9/2011 and the application filed under Order XXXIX Rule 1 & 2 CPC was allowed on 22/11/2011 and, whereafter, the decree was passed on 10/4/2014 and modified on 6/3/2017. However, as admittedly, the sale has taken place on 5/10/2011 i.e. during the pendency of the suit and despite grant of injunction by the trial court, the transaction would be governed by the provisions of Section 52 of the T.P. Act and, therefore, the applicants would be bound by the said decree and have no right to question the validity of the decree, which has been passed in a suit for specific performance, wherein, even otherwise the applicants have no right.
Further submissions were made that the so called submission made regarding the applicants being bonafide purchasers has no effect in the present case as the bonafide purchaser is protected under the provisions of Section 19(b) of the Specific Relief Act, 1963 ('the Act, 1963') and not a purchaser during the pendency of the suit under Section 52 of the T.P. Act and, therefore, the applicants have no right to maintain the appeal and the applications deserve to be dismissed.
Reliance was placed on Padmja vs. Erattil Sanjeev & Ors. :
(2005) 3 KLJ 670.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record. (Downloaded on 03/03/2021 at 08:57:12 PM)
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The facts are not in dispute, wherein, the suit in question seeking specific performance of the contract was filed on 29/1/2011 and the sale deed in favour of the applicants were executed on 5/10/2011 i.e. during the pendency of the suit. Besides the fact that the sale deed was executed during the pendency of the suit, additionally there was an injunction also by the trial court granted on 9/3/2011, which was apparently violated by the transferor at least, as the applicants have claimed ignorance of pendency of the suit and grant of injunction and even passing of the impugned decree.
In view of the express provisions of Section 52 of the T.P. Act, it is apparent that irrespective of any bonafides, as claimed by the applicants in purchasing the property, they are bound by the decrees having been passed by the trial court.
The Hon'ble Supreme Court in Guruswamy Nadar vs. P. Lakshmi Ammal & Ors. : (2008 ) 5 SCC 796 has taken into consideration the provisions of Section 19(b) of the Act, 1963 and Section 52 of the T.P. Act and has laid down as under:
"13. Normally, as a public policy once a suit has been filed pertaining to any subject matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end."
However, irrespective of the fact as to whether the applicants were bonafide purchasers or not, presently the question before the Court is whether they can be granted leave to appeal against the judgments & decrees impugned.
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The aspect of right of transferee pendente lite qua the decree passed in his absence has been thoroughly considered by the Hon'ble Supreme Court in Raj Kumar vs. Sardari Lal & Ors. :
(2004) 2 SCC 601, wherein, referring to the provisions of Section 146, Order XXII Rule 10, Order XXI Rule 16 CPC and the judgment in Saila Bala Dassi vs. Nirmala Sundari Dassi : AIR 1958 SC 394, it was inter alia laid down as under:
"9. A decree passed against the defendant is available for execution against the transferee or assignee of the defendant judgment-debtor and it does not make any difference whether such transfer or assignment has taken place after the passing of the decree or before the passing of the decree without notice or leave of the Court.
10. The law laid down by a four-Judge Bench of this Court in Saila Bala Dassi vs. Nirmala Sundari Dassi is apt for resolving the issue arising for decision herein. A transferee of property from defendant during the pendency of the suit sought himself to be brought on record at the stage of appeal. The High Court dismissed the application as it was pressed only by reference to Order 22 Rule 10 CPC and it was conceded by the applicant that, not being a person who had obtained a transfer pending appeal, he was not covered within the scope of Order 22 Rule 10. In an appeal preferred by such transferee, this Court upheld the view of the High Court that a transferee prior to the filing of the appeal could not be brought on record in appeal by reference to Order 22 Rule 10 CPC. However, the Court held that an appeal is a proceeding for the purpose of Section 146 and further the expression "claiming under" is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule 10. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code. A person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on record at the stage of the appeal can do so by reference to Section 146 CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. Their Lordships held that being a purchaser pendente lite, a person will be bound by the proceedings taken by the successful party in execution of decree and justice requires that such purchaser should be given an opportunity to protect his rights.(Downloaded on 03/03/2021 at 08:57:12 PM)
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13. The appellant cannot dispute that the decree though passed against the respondent Nos. 2 and 3 could be executed even against the respondent No.4, he being a lis pendens transferee though not having been joined in the suit as a party. Such a person can prefer an appeal being a person aggrieved."
(emphasis supplied) The case of Raj Kumar (supra) had arisen in the circumstances wherein the transferee pendente lite had filed the application under Order IX Rule 13 CPC and in those circumstances when the matter reached Hon'ble Supreme Court, the above observations were made, wherein, while referring to the judgment in the case of Saila Bala (supra) it was observed that whoever is entitled to be but has not been brought on record under Order XXII Rule 10 CPC in a pending suit or proceeding, would be entitled to prefer an appeal against the decree or order passed therein, if his assignor could have filed such an appeal there being no prohibition against it in the Code and that such a person can prefer an appeal being a person aggrieved.
So far as the purchase of property during the pendency of the suit and despite grant of injunction is concerned, the said aspect has been thoroughly considered by the Hon'ble Supreme Court in the case of Thomson Press (supra), wherein, it has been categorically laid down that the provisions of Order XXII Rule 10 CPC would apply irrespective of the fact that an injunction was in operation and even after the transferee was aware of such an injunction.
In view of the law laid down by Hon'ble Supreme Court in the case of Raj Kumar (supra), the applicants being parties aggrieved by the impugned decrees, are entitled for grant of leave to appeal. (Downloaded on 03/03/2021 at 08:57:12 PM)
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Consequently, the applications are allowed. The applicants are permitted to file appeals against the impugned judgment & decree passed by the trial court.
As the first appeals have already been filed by the applicants along with the applications for leave to appeal, the office is directed to register the same and list appropriately.
(ARUN BHANSALI),J baweja/-
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