Punjab-Haryana High Court
Smt. Bhajan Kaur And Others vs Kanwar Devinder Singh on 18 December, 1989
Equivalent citations: AIR1990P&H347, (1990)97PLR252, AIR 1990 PUNJAB AND HARYANA 347
ORDER
1. This revision petition is directed against the order of the learned Senior Subordinate Judge, Patiala, who rejected the objections filed by the petitioners and held that the respondent-decree holder was entitled to recover actual physical possession pursuant to the decree for specific performance passed in his favour.
2. The matrix of the case is as under :-
Capt. Chuni Lal was owner of land measuring 96 Bighas 6 Biswa. He entered into an agreement to sell this land with the respondent for Rs. 26,000/- on September 27, 1966 through his daughter and attorney Neena Ahuja. Rs. 10,000/- was paid as earnest money and the balance was to be paid at the time of the registration of the sale deed which was to be executed on or before February 28, 1967. The vendor did not execute the sale deed even by the extended date. The vendor entered into an agreement to sell, with the petitioners (hereinafter referrd to as the judgment-debtors) on July 21, 1967 with regard to the suit land. The sale was to be executed on or before January 1, 1968.
3. The respondent (hereinafter referred to as the decree holder) filed a suit for specific performance on the basis of agreement to sell dated September 27, 1966 against the vendor Capt. ChuniLal. The judgment-debtors were also made party defendants in the suit. The suit for specific performance was decreed and it was held that the decree-holder would be entitled to actual physical possession of the disputed land in execution of the decree for specific performance. On appeal, the first appellate Court reversed this finding and that the decree-holder would not be entitled to actual physical possession of the suit land in execution of the decree for specific performance. The decree-holder will only be entitled to a simple decree of specific performance. The judgment-debtors still aggrieved against the judgment and decree of the first appellate Court came to this Court in Regular Second Appeal No. 821 of 1981 which was dismissed by judgment and decree dated March 13, 1984. The High Court negatived their plea that the agreement to sell executed in their favour was in recognition of their pre-existing right to pre-empt the land in suit. It was also held that they were not bona fide purchasers for value and consideration and that the sale in their favour was hit by the Rule of lis pendens. However, in the concluding paragraph, it was observed that the question whether the decree-holder is entitled to actual physical possession or not, will be decided by the executing Court. On the basis of these observations made in the judgment by this Court, the judgment-debtors filed objections in the executing Court, inter alia, on the ground that they were in possession as tenants before they entered into an agreement to sell with the landowner on July 21, 1967 and that the decree-holder was not entitled to actual physical possession from them.
4. The learned executing Court on evidence found that some of the judgment-debtors were in possession as tenants on the land sold to them. The sale effected by the landowner in their favour was valid between the parties thereto and that on their acquiring ownership rights, the lessee rights merged with the bigger rights of ownership and they could not claim that they were still the tenants on the suit land and defeat the claim of the decree-holder for recording actual physical possession in execution of the decree for specific performance.
5. The finding recorded by the learned executing Court that some of the judgment-debtors were tenants on the land sold to them was not assailed before me and I do not find any ground to take a different view than the one executed by the learned executing court.
6. The principal questions which arise for determination are:--
(i) Whether the sale effected in favour of the judgment-debtors during the pendency of the civil suit filed by the decree-holder is hit by the rule of lis pendens and wipe out the sale altogether?
(ii) On lessee's ownership rights the lease hold rights stand extinguished?
7. Section 52 of the Transfer of Property Act reads thus:-
"Transfer of Property pending suit relating thereto:
During the pendeny 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.
Explanation: For the purposes of this section pendency of a suit for proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
8. The transfer when it falls within the mischief of this section will be deemed to be non est for the purposes of lis pendens. The transferor will be regarded as owner of the property notwithstanding that he has transferred it. However, there is nothing in this Section which can lead to the conclusion that the transfer pendente lite cannot be held valid and operative as between the parties thereto. This section does not wipe out the transaction altogether but makes it subservient to the rights based on the decree in the suit. This matter came up for consideration before the apex Court in Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593, wherein it was held as under (at p. 602 of AIR):
"This contention gives no effect to the words "so as to affect the rights of any other party thereto under any decree or order which may be made therein", which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto,"
9. Consequently the sales made by the landowner in favour of judgment-debtors were valid as between them. The effect of these sales will be that the lease-hold rights of the judgment debtors will merge with the, ownership right. The smaller lease hold rights; will merge with the bigger ownership rights. They cannot at the same time be both landlord and tenant.
10. I do not find any infirmity with the finding arrived at by the executing Court that on purchasing the property from the landowner the lease hold rights of the defendants stood extinguished. They did not enter into a specific agreement with the landowner that irrespective of their purchasing the property the tenancy rights will not stand extinguished. In the absence of any covenant to the contrary the lease hold rights will merge with the ownership rights, when the lessee purchased the ownership rights from the lessor.
11. For the reasons given above this revision petition is dismissed, however, without any order as to costs.
12. Petition dismissed.