Delhi High Court
Bharat Singh And Anr. vs Gopi Ram And Ors. on 1 December, 1999
Equivalent citations: 91(2001)DLT756
Author: S.N. Variava
Bench: S.N. Variava, S.K. Mahajan
JUDGMENT S.N. Variava, C.J.
1. This appeal is against a judgment dated 16th July, 1971. By this judgment the suit filed by the respondents has been decreed. Between these parties, there has been a large number of litigation. Therefore, before this appeal and arguments on this appeal are considered, it is necessary to set out briefly the history of litigation between the parties.
2. The appellants are sons of one Ram Narain. They had another brother Maha Chand, whose widow is Smt. Bhagirati Devi.
3. On 18th March, 1950, a firm of M/s. Sheo Parshad Giani Ram obtained a decree in Suit No. 379/50 against a Joint Hindu Family firm by name M/s. Jairam Dass Ramnarain. In that suit the firm M/s. Jairam Dass Ramnarain was shown to have been represented by Smt. Bhagirati Devi as the managing proprietor. The decree was on the basis of an award of an award for recovery of Rs. 5,900/-.
4. In pursuance of that decree, the firm M/s. Sheo Parshad Giani Ram got attached on 28th April, 1950, properties of the Joint Hindu Family firm M/s. Jairam Dass Ramnarain, being Shop Nos. 2067, 2080 and 2081 on plot Nos. 32, 45 and 46, Narela Mandi, Delhi. Appellants filed objections under Order 21 Rule 58, CPC against the attachment of the abovementioned properties claiming that these properties belonged to Joint Hindu Family firm M/s. Jairam Dass Ramnarain and that Smt. Bhagirati Devi had no share in these properties. On 19th August, 1950, Shri Purshotam Swaroop, Sub Judge 1st Class, Delhi dismissed the objections summarily. No reasons were assigned and the order merely stated : "Dismissed in liming".
5. On 23rd August, 1950, appellants filed fresh objections under Section 47 read with Section 151, CPC. These objections were dismissed by Shri Banwari Lal, SJIC. on 14 May, 1951 on the ground that the same were not maintainable under Section 47 of the CPC. An appeal against this order was dismissed by the High Court on 11th December, 1951 on the ground that Section 47 of the CPC was not applicable.
6. In the meantime, on 1/3rd November, 1950, the appellants had filed Suit No. 224/50 for a declaration that various properties mentioned in the plaint of that suit were Joint Hindu Family properties. A copy of the plaint has been shown to us. It is clear that Shop Nos. 2067, 2080 and 2081 on plot Nos. 32 45 and 46, Narela Mandi, Delhi, were included in the list of properties which were claimed to be Joint Hindu Family properties. In this suit it was also claimed that the interest of Shri Maha Chand, husband of Smt. Bhagirati Devi, had devolved upon the appellants who were the other co-parcener and that Smt. Bhagirati Devi had no right in any of the Joint Family properties. In the suit, a declaration was also sought that certain agricultural land situated in District Rohtak (Haryana) having been wrongly mutated in the name of Smt. Bhagirati Devi and that those entries may be corrected. It was also claimed that Smt. Bhagirati Devi was living an unchaste life and was not entitled to maintenance.
7. In this suit, a decree was passed on 31st December, 1953. by this decree, it was held that the properties in question were Joint Hindu Family properties and that on the death of Maha Chand these properties had developed upon the other co-parcener. It was further held that mutation entries in favor of Smt. Bhagirati Devi had been wrongly made and they were directed to be deleted. It was further held that Smt. Bhagirati devi had a right of maintenance even though she had no share in the Joint Family properties.
8. At this stage, it must be noted that the objections under Order 21 Rule 58, CPC were dismissed on 19th August, 1950 and Suit No. 224/50 had been filed on 3rd November, 1950. Thus, this suit was within one year from the date of dismissal of the objections. It was, in effect, the suit under Order 21 Rule 63, CPC.
9. Against the decree dated 31st December, 1953, Smt. Bhagirati Devi filed an appeal to Punjab High Court. Vide judgment dated 9th November, 1959 the Punjab High Court set aside the decree and held that Smt. Bhagirati Devi had a share in these properties. Appellants filed an appeal to the Supreme Court. On 26th August, 1965, the Supreme Court set aside the judgment of the Punjab High Court and restored the decree dated 31st December, 1953. By a reasoned order the Supreme Court accepted the findings of the Trial Court that these were Joint Family properties in which Smt. Bhagirati Devi and no share. It may be mentioned that the Supreme Court, inter alia, relied on certain admissions of Smt. Bhagirati devi made in an agreement executed by her as well as in a suit which had been instituted by her. Both in the agreement and in the suit. Smt. Bhagirati Devi had admitted that these shops were Joint Family properties. Thus, in a substantive litigation under Order 21 Rule 63, CPC which went right up to the Supreme Court the appellants have got established that Shop Nos. 2067, 2080 and 2081 on plot Nos. 32, 45 and 46, Narela Mandi, Delhi were Joint Family properties and that Smt. Bhagirati Devi had no right, title or interest or share in these shops.
10. On 18th July, 1951, appellants filed Suit No. 732/51 against the firm M/s. Sheo Parshad Giani Ram as well as Smt. Bhagirati Devi for a declaration that the decree in Suit No. 379/50 against M/s. Jairam Dass Ramnarain was fraudulent and collusive and not binding on the appellants. they also sought an injection restraining the firm of M/s. Sheo Parshad Giani Ram from attaching any Joint Hindu Family properties. This suit was decreed by Shri S.D. Tyagi, SJIC, on 9th April, 1960. It was held that the decree was fraudulent and collusive. It was declared that the decree would not be executed against the appellants and/or the Joint Family properties. An injunction was granted against M/s. Jairam Dass Ramnarain from executing the decree. It was further held that personal lability of Smt. Bhagirati Devi for payment of decretal amount was not affected. Against this decree, an appeal was filed by the firm of M/s. Sheo Parshad Giani Ram. This was dismissed on 10th August, 1961. A second appeal to the High Court was dismissed in liming on 1st March, 1962. No further appeal was filed to the Supreme Court.
11. Thus, now appellants had in their favor a decree declaring that these were Joint Hindu Family properties as well as a decree declaring that the decree in Suit No. 379 of 1950 was fraudulent and collusive.
12. It must also be mentioned that on 10th January, 1953, the Execution Application filed by the firm of M/s. sheo Parshad Giani Ram (by which three shops were attached on 28th April, 1950) was dismissed for want of prosecution.
13. An application for restoration of the Execution Application was dismissed on 7th March, 1955.
14. However, on 29th January, 1956, the said firm of M/s. Sheo Parshad Giani Ram took out a fresh Execution Application and on 29th June, 1956, the Court attached one-third share of Smt. Bhagirati Devi in the above mentioned three shops. It must be remembered that by this date, the decree dated 31st December, 1953 had already been passed. However, the appeal against the decree was pending in the Punjab High Court.
15. On 18th July, 1962, the abovementioned three shops were auctioned.This is in spite of the fact that by now the decree dated 9th April, 1960 given by Shri S.D. Tyagi, Sub Judge, had also been passed and the appeal against that decree had also been dismissed by the High Court on 1st March, 1962. At auction sale, the respondents give the only bid for the three shops. It may be mentioned that the respondents were tenants of Shop No. 2081.
16. On 13th August, 1962, appellants filed objections under Order 21 Rules 47 and 58 and Order 21 Rules 98 and 100, CPC for setting aside the auction sale. Shri K.D. Mohan, Sub Judge, dismissed the objections as not being maintainable. The High Court vide order dated 28th January, 1964 sustained these findings and held that the objections were not maintainable.
17. On 3rd December, 1962 the appellant filed Suit No. 196/63 on 3rd December, 1962 against the present respondents Smt. Bhagirati Devi and firm M/s. Sheo Parshad Giani Ram that the auction sale was null and void and did not confer any right on the auction-purchasers. On 3rd October, 1964, this suit was dismissed by Shri S.R. Goel, Sub Judge Delhi on the ground that since this suit had not been filed within one year after the order dated 19th August, 1950, of Shri Purshotam Swaroop, Sub Judge, which dismissed the objections under Order 21 Rule 58, CPC. Thus, this suit was dismissed only on the ground of limitation.
18. An appeal was filed by appellant in the High Court at Delhi. The High Court vide its judgment dated 24th May, 1977, which has been , set aside the order dismissing the suit and remanded the mater for fresh disposal. It must be mentioned that the High Court noted that the Execution Application had been dismissed on 10th January, 1953 and that, therefore, the earlier attachment which had been made on 28th April, 1950 no longer stood. The High Court observed that as that attachment no longer stood, there was no question of filing the suit within a period of one year under Order 21 Rule 63, CPC. The High Court observed that a fresh Execution Application had been taken out on 29th January, 1956, and there was a fresh attachment of 1/3rd share of Smt. Bhagirati Devi in the shops. The High Court observed that the objections against this attachment had been dismissed on 13th August, 1962 and the suit was filed on 3rd December, 1962. It was held that the suit having been filed within a period of one year was not barred by limitation.
19. Against the judgment of the High Court, the respondents herein filed an appeal to the Supreme Court. It may be mentioned that during the pendency of this appeal, the respondents made an application to the Supreme Court that all the disputes between these parties had been finally decided by a judgment dated 11th November, 1974 in a Suit (No. 127A/68) filed by appellants in the Court at Rohtak. In this application, it was claimed that therefore, all disputes between these parties were now res judicata. In spite of this application, the Supreme Court dismissed the appeal on 4th October, 1989 on the ground that SLP was time-barred. The Supreme Court also held that there was misrepresentation of fact before that Court. The judgment of the Supreme Court dated 4th October, 1989, is . A review petition was field before the Supreme Court.However, that also came to be dismissed on 6th November, 1990.
20. Pursuant to the order of the High Court the suit had been remanded for fresh disposal. The suit was now numbered as Suit No. 180/77. This suit was finally disposed of by judgment dated 6.1.1979. By this judgment it has been held by Shri Jaspal Singh, the then ADJ, that Smt. Bhagirati Devi had no share in the abovementioned three shops and that appellants were the owners of the same. It was also held that the sale of properties in favor of the respondents herein was null and void and did not confer any right on the respondents. RFA No. 345 of 1979 has been filed against this judgment. That RFA has been dismissed by a separate judgment passed today.
21. One further fact which needs to be mentioned that is, appellants had also filed Suit No. 127A/69 in the Court that Rohtak against the respondents and Smt. Bhagirati Devi. That suit was dismissed by judgment dated 11th November, 1974. This is the judgment which was being relied upon by the respondents in support of their claim that the disputes are barred by res judicata and would have to be considered in detail at a later stage. At this stage, it may only be mentioned that the appeal against this judgment was dismissed on 11th January, 1982 and a Second Appeal to Punjab High Court was dismissed on 16th September, 1982.
22. On 19th July, 1965, the respondents filed this suit claiming that they had one-third share in the abovementioned three shops. They, therefore, prayed for a partition of these shops. On 16th July, 1971, the suit was decreed. This appeal is against this decree.
23. On Board is also RSA 19/71. That appeal is against the judgment dated 10th September, 1970. Appellants had instituted a suit for recovery of Rs. 2,380/- against the respondents as arrears of rent in respect of Shop No. 2081. The Trial Court dismissed the suit on 29th January, 1968 on the ground that between the parties there was a dispute as to whether the respondents and become owners by way of purchase of one-third share of Smt. Bhagirati Devi. The first appeal confirmed the order of the Trial Court that appeal challenges the judgment. RSA 19/71 is also being disposed off today by a separate judgment.
In this suit the following issues had been raised :
(1) Whether the plaintiffs are owners of 1/3rd share of property in dispute. If not, what is the effect on the suit ?
(2) Whether the suit has been properly valued for purposes of Court-fee and jurisdiction ?
(3) Whether the suit is not maintainable in its present from ?
(4) Whether the suit for accounts is competent ? If so, to what period the plaintiffs are entitled to accounts ?
(5) Relief.
24. The main issue is Issue No. 1. This issue has been answered in favor of the respondents on the ground that the Objections under Order 21 Rule 58 had been dismissed and that no suit had been filed within a period of one year under Order 21 Rule 63 of the Code of Civil Procedure. It was held that this resulted in a finality to the Court sale and that therefore, the same could not be questioned again. As had been seen from the narration of facts set out above there is a fallacy in the finding of the learned Judge that no suit had been filed within a period of one year. This question, i.e. as to whether or not suit had been filed within the period of year is finally concluded by judgment of the High Court dated 24th May, . To be remembered that the appeal against the judgment has been dismissed by the Supreme Court on 4th October, . The learned Judge has also held that the judgment of the Supreme Court dated 26th August, 1965 was not binding the Decree Holder, i.e. the firm of M/s. Sheo Prasad Giani Ram nor the respondents were parties to the suit. The learned Judge held that therefore the sale had become conclusive and the doctrine of lis pendens could not be invoked.
25. We are unable to accept this reasoning of the learned Judge also. As has been seen from the facts narrated above, the appellants had filed this suit at Sonepat on 1st November, 1950. This suit had been decreed on 31st December, 1953. The original execution which had been levied on the property on 28th April, 1950 was dismissed on 10th January, 1953. The fresh application for execution was levied on 29th January, 1956.By this time the suit in Sonepat had already been decreed. It had already been held that the appellants were the owners of the property and that Smt. Bhagirati Devi had no right, title or interest in these properties except a right of maintenance. The appeal before the Punjab High Court was undoubtedly pending. The Punjab High Court decided the appeal on 9th November, 1959 and thereafter the three shops were sold on 17th July, 1962. However, the Supreme Court set aside the judgment of the Punjab High Court and allowed the appeal on 26th August, 1965. Thus the principle of lis pendens could definitely apply.
26. In the meantime, on 18th July, 1951 the appellants herein has also filed Suit No. 379 of 1950 in the Court of the Sub Judge 1st Class Delhi. That suit has also been decreed on 9th April, 1960. In that suit it has been held that the decree which had been obtained by the firm of M/s. Sheo Parshad Giani Ram was fraudulent, collusive and not binding on the appellants. In that suit an injunction has been passed against M/s. Sheo Parshad Giani Ram from attaching Joint Hindu Family properties. The appeal against that decree was dismissed on 10th August, 1961 and the High Court also dismissed the second appeal on 1st March, 1962. The decree dated 9th April, 1960 had therefore, obtained finality on 1st March, 1962. Inspite of this the properties were sold on 17th July, 1962.
Section 52 of the Transfer of Property Act reads as follows :
"Transfer of property pending suit relating thereto -- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose".
27. The law on the subject is well-settled. In the case of Samarendra Nath Sinha and Anr. v. Krishna Kumar Nag, , it has been held by the Supreme Court that even though Section 52 of the Transfer of Property Act does not strictly apply to involuntary alienations like Court sales but the principle of lis pendens applies to such alienations.
28. Again in the case of Kedarnath Lal and Anr. v. Sheonarain and Ors., , it has been held that principle of lis pendens laid down in Section 52 of the Transfer of Property Act would apply and even though an attachment before judgment may haven allowed such an attachment would be effective against the lis pendens.
29. Further in the case of Thakur Pandey v. Bundi Ojha and Ors., , it has been held that even though Section 52 of the Transfer of Property Act may not strictly apply to Court sale, the principle of lis pendens applies even to Court sales. It has further been held that in the pending suit the presence of third party auction-purchaser was not at all necessary and that the 3rd party auction-purchaser even in a Court sale would be bound by the principle of lis pendens. In this case as stated above, the sale was pending the final disposal of the suit at Sonepat.
30. In such a suit it was not at all necessary that the firm of M/s. Sheo Parshad Giani Ram or the respondents be made parties. Even though they may not have been parties the principle of lis pendens would apply. Even otherwise the appellants had prior to the auction sale already obtained a decree dated 9th April, 1960 to the effect that the decree obtained by M/s. Sheo Parshad Giani Ram on 18th March, 1950 was fraudulent, collusive and not binding on them.
31. There is another reason why the impugned judgment cannot be maintained. It is settled law that a purchaser would get only such title as the seller had. If the seller had no title the purchaser gets no title. This principle would apply even to Court sales. That is the law as settled by the decision of the Privy Council in the case of Kedar Nath Goenka v. Munshi Ram Narain Lal and Ors., In this case certain properties were sold by the Court on the basis that they belonged to the judgment-debtor. It was ultimately found that at the time of the sale the judgment-debtor had no right, title or interest in those properties. The Privy Council held that under such circumstances the purchaser got no title in the property and that the sale was a nullity.
32. In the case of Bhai Ishar Das v. Govindi and Ors., , it has been held that in action on the part of the real owner did not debar him from claiming title to the property. It was held that if the judgment debtor had no salable interest then the purchaser got no interest in the property.
33. In our view the learned Judge fell in error in ignoring the settled law. The learned Judge fell in error in ignoring the fact that the Supreme Court had by its judgment dated 26th August, 1965 held that Smt. Bhagirati Devi had no right, title or interest in the property. The respondents 1 and 2 could only get such title as Smt. Bhagirati Devi had in the property. If Smt. Bhagirati Devi had no right title or interest in the property then the respondents 1 and 2 could get no right title or interest in that property. The mere fact that the firm of M/s. Sheo Parshad Giani Ram and/or respondents was not a party to those proceedings was of no consequence. Also the learned Judge has ignored the fact that in Suit 732 of 1951 the Sub Judge 1st Class Delhi had held that decree obtained by M/s. Sheo Parshad Giani Ram was fraudulent, collusive and not binding on the appellants.
34. Under these circumstances, we allow the appeal, set aside the decree and dismiss the suit. There will be no order as to costs of this appeal.