Madhya Pradesh High Court
Vipra Charitable And Educational Trust ... vs Satya Prakash Mohta on 11 December, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:62929
1 MP-5924-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 11th OF DECEMBER, 2024
MISC. PETITION No. 5924 of 2024
VIPRA CHARITABLE AND EDUCATIONAL TRUST THROUGH
NAVNEET MAHESHWARI SON OF LATE MUKUND DAS
MAHESHWARI
Versus
SATYA PRAKASH MOHTA AND OTHERS
Appearance:
Shri Ravindra Kumar Gupta - Advocate for petitioner.
Shri R.K. Tiwari - Advocate for respondent No.1 through LRs.
Shri Divyanshu Tiwari - Advocate for respondent No.8.
ORDER
Assailing the order dated 02.09.2024 passed by the Third Civil Judge, Class I, Patan, District Jabalpur whereby, the application filed by the petitioner/plaintiff under Order 14 Rule 5 CPC has been dismissed, the present petition has been filed.
2. It is the case of the petitioner that the suit for declaration and permanent injunction has been filed with respect to the land bearing Khasra No.257/6. 256/7, area 15.44 acres, new Khasra No.(247). In the original civil suit the plaintiff prayed for the following relief:-
"A. That the suit-affected land situated in Mauja Mankendi P.H.No.45, Tehsil Shahpura, District Jabalpur, New Kha.No. 247 area15.44 acres i.e. 6.03 hectares, which is shown in red colour as A,B, C, D, Ka, Kha, Ga, Gha in the computer map attached withthe plaint Signature Not Verified Signed by: LORETTA RAJ Signing time: 23-12-2024 15:53:40 NEUTRAL CITATION NO. 2024:MPHC-JBP:62929 2 MP-5924-2024 because it is crooked. The plaintiff should be declared the owner of the land on the basis of settled possession.
B. That a permanent injunction be passed in favour of the plaintiff that the defendants should not interfere in the agricultural work in the possession of the plaintiff either by themselves or through someone else, should not interfere in the agricultural work and should not let, sell, give or transfer the disputed land to anyone i.e. should not transfer or transfer it in any form.
C. The plaintiff also wants permission to add 2A in the prayer of the plaint in this way - that two lakh rupees for crop loss and interest should be given to the plaintiff in favour of the plaintiff. This clause has been added by the plaintiff after amendment.
D. That the litigation expenses and other relief which is just should be given to the plaintiff jointly and separately from the defendants."
3. It is argued that the defendant Nos.1 to 4 are family members of the plaintiff. Defendants No.5 & 6 are other authorities. During the pendency of the suit defendants No.1 to 4 fraudulently and illegally sold the said suit property on 25/07/2018 to Defendant No.1-A/Anurag Singh, Defendant No.1-B/Mayank Singh and Defendant No.1-C/Vikram Dubey, through two registered sale deeds despite of the fact that there was stay order of 02.04.2018 in the appeal presented before the Additional Commissioner, Jabalpur.
4. The managing trustee and lawyer who was handling the case, expired during the pendency of the appeal. The plaint was accordingly amended. The plaint was amended but the amendment required for proper disposal of the lis could not be carried out. The application under Order 6 Rule 17 of CPC was filed which was not accepted by the trial Court, the same has been rejected. Thereafter, the application under Order 14 Rule 5 CPC was filed which was Signature Not Verified Signed by: LORETTA RAJ Signing time: 23-12-2024 15:53:40 NEUTRAL CITATION NO. 2024:MPHC-JBP:62929 3 MP-5924-2024 rejected by the trial Court. It is the case of the petitioner that once the Registry has been done creating the third party interest in the property, they are necessary party to the proceedings and the relief for setting aside of the subsequent sale deed is required to be done.
5. The learned trial Court failed to appreciate the aforesaid aspect and dismissed the application, therefore this petition has been filed.
6. On notice being issued the respondents have marked their presence pointing out the fact that the civil suit will be governed by the theory of lis pendence. It is a specific case of the plaintiff that there was an interim relief granted by the trial Court but despite of the same, the sale deed has been executed. It is pointed out that the stay order was granted on 02.04.2018 and the sale deed actually was registered on 25.07.2018. It is further contended that the contempt proceedings should have been initiated by the petitioner.
7. Learned counsel for the respondents has placed reliance upon the recent judgment passed by the Hon'ble Supreme Court in the case of M/s Siddamsetty Infra Project Pvt. Ltd. v. Katta Sujatha Reddy and others : 2024 Live Law SC 870 wherein Section 52 of the Transfer of Property was taken note off and the doctrine of lis pendence was considered. It is argued that if there is a interim order granted by the Court and during the concurrence of the interim order if some properties have been sold, then the sale deeds could always be declared as null and void in contempt proceedings. There is no requirement to frame additional issue in the matter or to implead the parties to the proceedings. He has prayed for dismissal of the petition.
8. Heard the counsel for the parties and perused the record.
Signature Not Verified Signed by: LORETTA RAJ Signing time: 23-12-2024 15:53:40NEUTRAL CITATION NO. 2024:MPHC-JBP:62929 4 MP-5924-2024
9. The admitted facts being that during the pendency of the civil suit the properties in question were sold out on 25.07.2018 by two registered sale deeds. There was an interim order granted on 02.04.2018. The petitioner could have initiated contempt proceedings against the act of the defendants in selling the properties and creating a third party interest during the pendency of the civil suit. Creation of the third party interest will be governed by the theory of lis pendence and Section 52 of the Transfer of Property Act.
10. The Hon'ble Supreme Court in the case of M/s Siddametty Infra Projects (supra) has held as under:-
"47- In short, the doctrine of lis pendens that Section 52 of the Transfer of Property Act encapsulates, bars the transfer of a suit property during the pendency of litigation. The only exception to the principle is when it is transferred under the authority of the court and on terms imposed by it. Where one of the parties to the suit transfers the suit property (or a part of it) to a third-party, the latter is bound by the result of the proceedings even if he did not have notice of the suit or proceeding. The principle on which this doctrine rests was explained by Lord Turner in Bellamy v. Sabine11 as follows:
"It is, as I think, a doctrine common to the courts both of Law and Equity and rests, as I apprehend, upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendants alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceedings. The purpose of lis pendens is to ensure that the process of the court is not subverted and rendered infructuous. In the absence of the doctrine of lis pendens, a defendant could defeat the purpose of the suit by alienating the suit property.
49- This purpose of the provision is clearly elucidated in the explanation clause to Section 52 which defines "pendency". Amending Act 20 of 1929 substituted the word "pendency" in place of "active prosecution". The Amending Act also included the Explanation defining the expression "pendency of suit or proceeding".
"Pendency" is defined to commence from the "date of institution" until Signature Not Verified Signed by: LORETTA RAJ Signing time: 23-12-2024 15:53:40 NEUTRAL CITATION NO. 2024:MPHC-JBP:62929 5 MP-5924-2024 the "disposal". The argument of the respondents that the doctrine of lis pendens does not apply because the petition for review was lying in the registry in a defective state cannot be accepted. The review proceedings were "instituted" within the period of limitation of thirty days. The doctrine of lis pendens kicks in at the stage of "institution"
and not at the stage when notice is issued by this Court. Thus, Section 52 of the Transfer of Property Act would apply to the third-party purchaser once the sale was executed after the review petition was instituted before this Court. Any transfer that is made during the pendency is subject to the final result of the litigation."
11. If the judgment passed by the Hon'ble Supreme Court is considered, then it is clear that then there is no requirement to frame additional issue in the matter or to implead the third party in whose favour the sale deed has been executed. The learned trial Court rightly considered both the applications and rejected them. It was further observed by the learned trial Court that the fact of execution of the sale deed was in the knowledge of the plaintiff. But despite of that they have not chosen to ask for the said relief on the earlier occasion, even though the amendment was carried out. The plaintiff was having information with respect to execution of sale deed in the year 2019 itself because he filed an application for amendment on 18.05.2019, to implead the third person in whose favour the sale deed was executed. Despite of the same he waited for 4-5 years to file such an application for the declaration of the sale deeds to be null and void. There is no explanation for the same by the plaintiff. Even otherwise, in terms of the judgment passed by the Hon'ble Supreme Court in the case of M/s Siddametty Infra Projects (supra) the civil suit will be valid by Section 52 of the Transfer of Property Act and the sale deed executed can always be declared to be void in contempt proceedings. Under these circumstances, no illegality is committed by the learned trial Court in rejecting the Signature Not Verified Signed by: LORETTA RAJ Signing time: 23-12-2024 15:53:40 NEUTRAL CITATION NO. 2024:MPHC-JBP:62929 6 MP-5924-2024 applications.
12. Moreover, this is a petition under Article 227 of the Constitution of India having a limited scope of interference as has been held by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar Patil reported in (2010) 8 SCC 329, wherein certain guidelines have been framed by the Supreme Court, which are as under :-
"The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner."
13. Accordingly, this petition deserves to be and is hereby dismissed.
(VISHAL MISHRA) JUDGE L.Raj Signature Not Verified Signed by: LORETTA RAJ Signing time: 23-12-2024 15:53:40