Telangana High Court
Chintala Madhavi vs S. Venkatamma / Venkata Lakshmi on 5 June, 2023
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
I.A.Nos.1 and 2 of 2018
In/And
SECOND APPEAL Nos.1350 of 2018 and 1359 of 2018
COMMON JUDGMENT:
I.A.No.1 of 2018 in S.A.Nos.1350 of 2018 and 1359 of 2018 are filed by the petitioner Nos.1 to 13, who are the third parties to grant leave to them to file the Second Appeals against the decree and judgment dated 14.07.2011 passed in A.S.No.11 of 2006 and the decree and judgment dated 30.10.2012 passed in A.S.No.12 of 2006 on the file of the III Additional District Judge (F.T.C.), Ranga Reddy District at L.B.Nagar.
2. I.A.No.2 of 2018 in S.A.Nos.1350 of 2018 and 1359 of 2018 are filed by the petitioner Nos.1 to 13, who are the third parties to condone the delay of 1830 and 2210 days respectively in filing the Second Appeals against the decree and judgment dated 14.07.2011 passed in A.S.No.11 of 2006 and the decree and judgment dated 30.10.2012 passed in A.S.No.12 of 2006 on the file of the III Additional District Judge (F.T.C.), Ranga Reddy District at L.B.Nagar.
2 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018
3. The petitioner No.6 filed affidavits in support of the applications on his behalf as well as on behalf of all the other petitioners stating that the petitioners were third parties/subsequent purchasers of the part of the suit schedule property. They were the absolute owners and possessors of their respective items of the suit schedule properties in survey No.104, Thorrur Village, presently Hayathnagar Mandal, Ranga Reddy District.
4. O.S.No.298 of 1997 was filed by the respondent No.1/plaintiff for specific performance of agreement of sale dated 01.02.1996 executed by the respondent No.2, who was none other than her mother in respect of Ac. 2
- 13 gts. of land in survey No.104, Thorrur Village, Hayathnagar Mandal, Ranga Reddy District.
5. O.S.No.815 of 1997 was filed by the respondent No.1/plaintiff seeking declaration of the registered sale deed document executed by respondent No.2 in favour of respondent Nos.3 to 6 as null and void to the extent of Ac. 2 - 13 gts. of land in survey No.104, Thorrur Village, Hayathnagar Mandal, Ranga Reddy District against the respondent No.2 as 3 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 well as respondent Nos.3 to 6. Respondent No.7 was subsequently added as he was a second purchaser from respondent Nos.3 to 6.
6. Both the suits were jointly decided by a common decree and judgment dated 24.07.2005 by the II Additional Senior Civil Judge, Ranga Reddy District on 24.11.2005, dismissing both of them. Subsequently, respondent No.1/plaintiff preferred two appeals - A.S.No.11 of 2006 against the decree and judgment in O.S.No.815 of 1997 and A.S.No.12 of 2006 against the decree and judgment in O.S.No.298 of 1997. The III Additional District Judge, (F.T.C.), Ranga Reddy District at L.B.Nagar vide separate judgments dated 14.07.2011 in A.S.No.11 of 2006 and vide decree and judgment dated 30.10.2012 in A.S.No.12 of 2006, reversed the findings of the II Additional Senior Civil Judge, Ranga Reddy District directing the respondent No.2 to execute a registered sale deed in favour of respondent No.1 (plaintiff) in pursuance of the agreement of sale to the extent of Ac.2 - 13 gts. within one month from the date of the judgment and also cancelled the registered sale deed document No.1168 of 1997 dated 10.04.1997 executed by respondent No.2 in favour of respondent Nos.3 to 6 to an extent 4 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 of Ac.2 - 13 gts., out of the total Ac.6 - 13 gts. in survey No.104/A, Thorrur Village, Hayathnagar Mandal, L.B. Nagar District.
7. During the pendency of O.S.No.815 of 1997, the respondent Nos.3 to 6 entered into development agreement with M/s. Sreemitra Estates Private Limited (respondent No.7) for the purpose of developing the land. They developed the said land into plots and sold to various people. The petitioners submitted that they were bonafide purchasers from respondent No.7 and they were in peaceful possession and enjoyment over their respective plot properties. The respondent No.1/plaintiff under the guise of the orders in the above appeals was trying to interfere with their peaceful possession and enjoyment. They resisted her illegal attempts with the support of the local people. But aggrieved by the interference of the respondent No.1/plaintiff, they preferred these Second Appeals raising substantial questions of law for consideration. Since, they were not parties to both the suit and the first appeals, they were not aware of the filing, pendency and disposal of first appeals. Since the date of purchase of the plots, they were in possession of the same. No notices were issued on them either by the trial court or the first appellate court. Subsequently, they came 5 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 to know that the appeals were allowed by the III Additional District Judge, (F.T.C.), Ranga Reddy District at L.B.Nagar and prayed to grant leave to them for filing the Second Appeals against the decree and judgment in A.S.Nos.11 and 12 of 2006 on the file of the III Additional District Judge, (F.T.C.), Ranga Reddy District at L.B.Nagar.
8. The respondent No.1/plaintiff filed counter affidavit submitting that no leave could be granted to the petitioners as they were third parties to both the original suit as well as the appeals. The petitioners - appellants claimed themselves to be subsequent purchasers of the suit properties. On perusal of the sale deed filed by them, it would show that the sale transactions were lis pendens and they were not bonafide. They were sham and collusive created to deprive her of the fruits of the litigation. The appellants being transferees pendete lite were bound by the judgment and decree in A.S.Nos.11 and 12 of 2006 on the file of the III Additional District Judge, (F.T.C.), Ranga Reddy District at L.B.Nagar by virtue of Section 52 of the Transfer of Property Act, 1882. The Second Appeals were filed with a delay of 1830 days and 2210 days respectively and the above appeals could not be entertained at such distance of time. The petitioners -
6 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 appellants had not specified the date as to when they became aware of the litigation or when they were served with caveats. The same was necessary for determination of date of knowledge on the part of the petitioners - appellants which was a decisive factor to ascertain limitation and bonafides of the petitioners - appellants. The lack of the specific details would clearly establish that the petitioners were concocting reasons to file Second Appeals. She denied that there was illegal interference on her part, much less on 13.08.2018 as claimed by the petitioners, and contended that if such was the case, she would not have filed E.P.No.58 of 2017 on the file of the II Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar seeking possession of the property. She contended that no substantial questions of law were made out in the Second Appeals warranting suspension of the judgment and decree in A.S.Nos.11 and 12 of 2006 on the file of the III Additional District Judge, Ranga Reddy District at L.B. Nagar. No leave could be granted to the petitioners - appellants as they were neither parties to the Original Suits nor the Appeal suits or acted with due diligence. As they were transferees pendente lite, they were bound by the judgments in appeal suits which had attained finality long back. Even otherwise, the 7 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 second appeals could not be maintained at such a long distance of time as limitation was a valuable right accruing to a party and the petitioners/appellants did not act with due diligence and no cogent reasons were furnished to substantiate such delay. There was a presumption in law that purchaser would duly enquire into the title of the property before entering into a sale transaction. The case of the appellants was that despite due diligence, they did not find out about the litigation. The respondent No.2 had executed a registered sale deed dated 07.12.2011 in her favor vide document bearing No.4458 of 2011 which would constitute as a public notice. As such, no leave could be granted to the petitioners/appellants to file the Second Appeals.
9. The petitioners filed a reply to the counter affidavit filed by respondent No.1 submitting that they purchased plots from their vendor i.e., M/s. Sreemitra Estates Private Limited in the year 2000 and thereafter. The respondent No.1 filed O.S.Nos.298 and 815 of 1997 and both the suits were dismissed on 24.11.2005. The sale deed of M/s. Sreemitra Estates Private Limited was reflecting in the encumbrance certificate. Similarly, all their sales were also reflected in the encumbrance certificate. They were 8 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 necessary parties to the suit. The pahanies also reflect M/s. Sreemitra as pattadar from 2005 to 2017 and in the possessory column, the property was shown as plots. The Petitioners had purchased plots in Sy.No.104/A. Some of the petitioners had also constructed compound wall in their respective plots. The petitioners' names were reflecting in the encumbrance certificate from 2001 onwards. The respondent No.1 filed A.S.Nos.11 and 12 of 2006 on the file of III Additional District Judge (FTC), Ranga Reddy District, without making the petitioners as party respondents inspite of reflecting the petitioners' name in encumbrance certificate. The respondent No.2 without having any right executed a registered sale deed in favour of respondent No.1. Basing on the same, the respondent No.1 started disturbing the possession of the petitioners' plots after lapse of 7 years i.e, in the year 2017 and demolished the compound wall constructed by the Petitioner No.12. The Petitioner No.12 filed a complaint against the respondent No.1 on 21.11.2017 on the file of P.S. Hayathnagar and the same was pending before the VII Metropolitan Magistrate at Hayathnagar. The respondent No.1 filed a Caveat Petition on the file of the Hon'ble Principal District Judge, Ranga Reddy District against the petitioners. The said Caveat Petition was sent 9 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 through Registered Post on 08.03.2018 and the same was received by the petitioners on 12.03.2018. In the said Caveat Petition, the respondent No.1 mentioned about the judgment and decree in A.S.Nos.11 and 12 of 2006. Immediately knowing about the said first appeals, the petitioners approached the Hon'ble III Additional District Judge, Ranga Reddy District and obtained certified copies of the said judgments and decrees. As such, the Second Appeals were filed with a delay of 2210 and 1830 days. The respondent No.1 intentionally not made the petitioners as respondents in the First Appeals, though their names were reflecting in the encumbrance certificate and plots were also shown in the pahanies. The sale deed dt.07.12.2011 executed by the respondent No.2 in favour of respondent No.1 was collusive. The respondent No.2 filed written statement denying entering into Agreement of Sale with the plaintiff but made a volte-face at the time of cross examination. The respondent No.2 in her pleadings stated that from the sale consideration received from her vendor, the respondent No.2 and her family members purchased lands at Khanapur Village, Ibrahimpatnam Mandal and they were cultivating the same. The entire suits and appeals were collusive. The petitioners/appellants had purchased small extents from 10 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 their savings. They were necessary and proper parties and prayed to allow the applications.
10. Heard the learned senior counsel for the appellants, Sri A. Sudarshan Reddy and the learned counsel for the respondent No.1, Ms. Pratusha Boppana.
11. Perused the record.
12. The learned counsel for the petitioners contended that the agreement of sale dated 01.02.1996 was executed by the respondent No.2 alone to the respondent No.1, but the sale deed document No.1168 of 1997 dated 10.04.1997 was executed by the respondent No.2 in favour of respondent Nos.3 to 6, along with her husband and two sons, whether the respondent No.2, who was the mother of the respondent No.1 has exclusive right to execute the agreement of sale in favour of respondent No.1 was a substantial question of law to be decided by this Court; the respondent No.2 denied executing the agreement of sale to the respondent No.1/ plaintiff in her written statement but stated in her evidence admitting execution of the same. Thus, there was a collusion in between the respondent Nos.1 and 2.
11 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 As soon as both the appeals are allowed cancelling the registered sale deed in favour of the subsequent purchasers i.e., respondent Nos.3 to 6, the respondent No.2 executed a registered sale deed in favour of the respondent No.1 on 07.12.2011, but possession was not delivered to respondent No.1/palintiff as the respondent No.2 was not in possession of the suit schedule plots. An execution petition was filed was by the respondent No.1 before the II Additional Senior Civil Judge, Ranga Reddy District vide E.P.No.58 of 2017 in the year 2017, after a gap of several years. The petitioners were purchasers of the plots, which was within the knowledge of the respondent No.1/plaintiff, but the petitioners came to know about the disposal of the appeals only when the respondent No.1 filed caveat petitions which were received by the petitioners on 12.03.2018. The petitioners were bonafide purchasers. The litigation between the respondent Nos.1 and 2 was collusive. The trial court dismissed the suits observing that there was a semblance of fraud. The petitioners were purchasers between 10.04.1997 and 2011. The encumbrance certificate was reflecting the name of their vendor and the pahanies were showing the nature of the property as plots. The petitioners were entitled to protect their property. They could not be 12 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 thrown out at the threshold. A well considered judgment of the trial court was reversed by the first appellate court and as it was a collusive suit between the respondent No.2 (mother) and the respondent No.1 (daughter), prayed to allow the applications filed by the petitioners granting leave to the petitioners to prefer the Second Appeals.
13. Learned counsel for the respondent No.1/plaintiff on the other hand contended that the petitioners were pendente lite purchasers, they were bound by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882. The encumbrance certificate was reflecting the name of respondent No.1/plaintiff since 07.12.2011 (date of execution of sale deed by the respondent No.2 in favour of the respondent No.1). No due diligence was conducted by the petitioners/appellants in purchasing the property and relied upon the judgments of the Hon'ble Apex Court in Gurmit Singh Bhatia Vs. Kiran Kant Robinson and Ors.1, Guruswamy Nadar Vs. P. Lakshmi Ammal (D) through Lrs. And Ors.2 and of the judgment of the High Court of Allahabad in Ram Peary and Ors. Vs. Gauri and Ors.3. 1 AIR 2019 SC 3577 2 AIR 2008 SC 2560 3 AIR 1978 All 318 13 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018
14. Admittedly, the petitioners were not parties to the original suits as well as the appeal suits. Original suits were filed by respondent No.1/plaintiff against the respondent No.2 vide O.S.No.298 of 1997 for specific performance of agreement of sale dated 01.02.1996 executed by the respondent No.2 in her favour in respect of Ac.2 - 13 gts. in survey No.104/A, Thorrur Village, Hayathnagar Mandal, Ranga Reddy District and O.S.No.815 of 1997 was filed by the respondent No.1/plaintiff against the respondent Nos.2 to 7 seeking declaration that the registered sale deed bearing document No.1168 of 1997 dated 10.04.1997 executed by the respondent No.2 along with her husband and two sons in favour of the respondent Nos.3 to 6 as null and void to the extent of Ac.2 - 13 gts. in survey No. 104/A situated at Thorrur Village, Hayathnagar Mandal, Ranga Reddy District. The respondent No.2 alienated an extent of Ac.6 - 13 gts. to respondent Nos.3 to 6 on 10.04.1997. The respondent No.7 was impleaded as defendant No.6 in O.S.No.815 of 1997 on 06.03.1998, but he remained ex-parte.
14 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018
15. The Hon'ble Apex Court in Gurmit Singh Bhatia Vs. Kiran Kant Robinson and Ors. (1 supra) wherein as per the facts of the said case, the plaintiffs filed a suit against the original owner - vendor - defendant No.1 for specific performance of agreement of sale with respect to the suit property dated 03.05.2005 and the vendor executed the sale deed in favour of the appellant by sale deed dated 10.07.2008 and after approximately four years, the appellant filed an application before the trial Court under Order I Rule 10 of the Code of Civil Procedure for his impleadment as a defendant, the trial court despite the opposition by the original plaintiffs allowed the said application which was set aside by the High Court. The Hon'ble Apex Court considering whether the plaintiffs could be compelled to implead a person against their wish in a suit for specific performance, particularly with respect to a person against whom no relief was claimed by them, held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance would be enlarged to a suit for title and possession, which was impermissible. A third party or a stranger could not be added in a suit for 15 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 specific performance, merely in order to find out who was in possession of the contracted property or to avoid multiplicity of the suits. A third party or a stranger to a contract could not be added so as to convert a suit of one character into a suit of different character. It was further observed and held that in a suit for specific performance of the contract to sell, the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. It is further observed and held by the Court that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party defendants in such suit. The aforesaid observations are made considering the principle that plaintiff is the dominus litis and could not be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. The 16 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 appellant could not be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original defendant No.1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs, the plaintiffs could not be forced to add party against whom he does not want to fight and observed that the appellant could not be impleaded as a defendant in the suit for specific performance of the contract between the original plaintiffs and original defendant No.1 against the wish of the plaintiffs.
16. The Hon'ble Apex Court in Guruswamy Nadar Vs. P. Lakshmi Ammal (D) through Lrs. And Ors. (2 supra) wherein as per the facts of the said case, the second purchase by the appellant was on 5.5.1975 i.e. two days after the filing of the suit for specific performance on 3.5.1975, held that:
"....Though the applicability of Section 52 of the Transfer of Property Act, 1882 was not considered by the trial court, however, the first appellate court i.e. learned Single Judge while granting the decree for specific performance found that the subsequent purchase made by the appellant- defendant was also bona fide for value and without notice of the agreement to sell but the said sale was subordinate
17 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 to the decree that could be made in the suit for specific performance which was instituted prior to the sale in favour of the second purchaser. The main argument which was advanced before learned Single Judge was that Section 19 of the Specific Relief Act, 1963 provides that a decree for specific performance against a subsequent purchaser for bona fide who has paid the money in good faith without notice of the original contract can be enforced as the same is binding on the vendor as well as against the whole world. As against this, it was contended by the respondents that Section 52 of the Transfer of Property Act which lays down the principle of lis pendens that when a suit is pending during the pendency of such suit if a sale is made in favour of other person, then the principle of lis pendens would be attracted. In support of this proposition a Full Bench decision of the Allahabad High Court in Smt. Ram Peary and others v. Gauri and others [ AIR 1978 All. 318] as well as a Division Bench judgment of the Madras High Court was pressed into service. Therefore, the question before us in this case is what is the effect of the lis pendens on the subsequent sale of the same property by the owner to the second purchaser. Section 19 of the Specific Relief Act clearly says subsequent sale can be enforced for good and sufficient reason but in the present case, there is no difficulty because the suit was filed on 3.5.1975 for specific performance of the agreement and the second sale took place on 5.5.1975. Therefore, it is the admitted position that the second sale was definitely after the filing of the suit in question. Had that not been the position then we would have evaluated the effect of Section 52 of the Transfer of Property Act. But in the present case it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens will govern the present case and the second sale cannot have the overriding effect on the first sale. The principle of lis pendens is still settled principle of law.
18 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 ...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." And held that the principle of lis pendens would be applicable as the second sale has taken place after the filing of the suit.
17. As per the facts of this case, the petitioners purchased the property from respondent No.7 and contending that they were bonafide purchasers for value without notice of prior agreement of sale in favour of the respondent No.1/plaintiff. But their vendor - respondent No.7 was a party to the litigation and he remained ex-parte. Though the petitioners purchased the property bonafidely without notice of the litigation, the principle of lis pendens is applicable to the petitioners also notwithstanding the fact that under Section 19(b) of the Specific Relief Act, their rights could be protected.
19 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018
18. The full bench of the Allahabad High Court in Ram Peary and Ors. Vs. Gauri and Ors. (3 supra) held that:
2. Section 19(b) of the Act says that Specific performance of a contract may be enforced against (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract.
4. The principle on which the doctrine rests was spoken by Cranworth L. C. in the leading case of Bellamy v. Sabine ((1857)' 44 ER 842 at p. 843) as follows:
"It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party.
Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind required that the decision of the Court in the suit shall be binding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end."
20 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018
5. The Privy Council had adopted the same principle in Faiyaz Husain Khan v. Munshi Frag Narain ((1907) 34 Ind App 102) where they lay stress on the necessity for final adjudication and observed that otherwise there would be no end to litigation and justice would be defeated.
6. Story in his work on Equity IIIrd Edition para 406 expounded the doctrine of lis pendens in the terms as follows ;--
"Ordinarily, it is true that the judgment of a court binds only the parties and their privies in representations or estate. But he who purchases during the pendency of an action, is held bound by the judgment that may be against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action. Where there is a real and fair purchase without any notice, the rule may operate very hardly, But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim pendente lite, nihil innovetur; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them.
7. In the light of these principles we have got to consider whether in the event of a conflict arising between the doctrine of lis pendens enshrined in S, 52 of the Transfer of Property Act and the rule availing a subsequent 21 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 transferee without notice, contained in Section 19(b) of the Specific Relief Act either the one or the other should prevail. Ordinarily, it is true that the title acquired by the subsequent purchaser is good, the sale to him being not void. But he who pruchases during the pendency of the suit is bound by the decree, that may be made against the person from whom he derives title. The litigating parties are exempted from the necessity of taking any notice of a title so acquired (see Samarendra Nath Sinha v. Krishna Kumar Nag (AIR 1967 SC 1440)), As to the vendor and the prior contractor it is as if no such title existed. Section 52 places a complete embargo on the transfer of any right to immoveable property pending suit, which is directly and specifically in question in such a litigation; it enacts that during the pendency of the suit in which any right to immoveable property is "directly and specifically in question, the property cannot be transferred or otherwise alienated by any party to the suit so as to affect the rights of any other party thereto under any decree." Thus, in the present case it may be that the subsequent transferee was entirely, ignorant of any right on the part of contractor, and also of the pendency of the suit filed against the vendor by such contractor, yet as the transfer was made to him by the vendor after the institution of the suit of the contractor and, while it was pending, the subsequent purchaser cannot set up against the contractor any right from which his vendor is excluded by the decree. The title of the subsequent purchaser is good against him on the ground of breach of covenant, but against the plaintiff contractor who seeks specific performance of the contract against the vendor, the subsequent transferee can be in no way 'better position than the vendor himself. It is well settled that in a suit for specific performance of contract in respect of immoveable property a right to immoveable property is directly and 'specifically in 22 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 question, (see Gauri Dutt Mahraj v. Sheikh Sukur Mohammad ,(75 Ind App 165) s (AIR 1MB PC 147)). ...In our opinion, therefore, when the doctrine of lis pendens renders a transfer made during the pendency of the suit subservient to the rights of the plaintiff seeking specific performance of a prior contract entered into by the vendor in his favour and when 'on account of the operation of the doctrine of lis pendens such conveyance is treated as if it had never any existence, the subsequent transferee, even though he had obtained the transfer without notice of the original contract, cannot set up against plaintiff- contractor any right; for it would defeat the rule of lis pendens which is founded upon public policy. And considered in that manner, Section 52 of the T. P. Act is not subject to S, 19(b) of the Specific Relief Act.
8. We may yet arrive to a similar conclusion in a different manner. "A judgment inter partes raises an estoppel only against the parties to the proceeding in which it is given, and their privies, for example, those claiming or deriving title under them." (Halsbury's Laws of England, Third Edition, Volume 15, para
372). The transferee pendente lite would be treated as a representative in interest of the parties to the suit and the judgment which has been pronounced, in the absence of fraud and collusion, would have the effect of finally determining the rights of the parties and the cause of action which would sustain the suit in which the doctrine of lis pendens applied would be merged in the judgment duly pronounced in what may be described as the previously decided suit. The decision being res judicata would bind not only the parties thereto but also the transferees pendente lite from them.
23 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 In a case to which besides the vendor the subsequent transferee is also impleaded in the array of the defendants, the judgment is final and binding not only on the parties to the original contract but also the transferee pendents lite from vendor. The conveyance in favour of the subsequent purchaser is treated as if it never had any existence. There would then be no lis or action which would survive, enabling the subsequent purchaser to take the defence of bona fide transfer for value without notice of the original contract. Accordingly, we take the view that lis pendens affects the transferee pendente lite and Section 52 of the T. P. Act is not subject to Section 19(b) of the new Specific Relief Act. The conveyance in favour of the subsequent purchaser pending the suit brought by the plaintiff contractor for specific performance of the contract between him and the vendor is taken "as if it had never any existence.""
19. In the present case, the petitioners are subsequent transferees, who purchased the properties during the pendency of the appeals from the respondent No.7. Their rights are subservient to the rights of the plaintiff, seeking specific performance of a prior contract entered by the respondent No.2 in her favour. The petitioners even though they had purchased the property without notice of the original contract cannot set up any right against the respondent No.1/plaintiff as the same was governed by the rule of lis pendens. They are bound by the judgment passed against their predecessors in interest (respondent No.7). The
24 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 petitioners are at liberty to protect their possession by taking recourse to the relevant provisions of the Code of Civil Procedure, if they are available to them or can file an independent suit for declaration and possession against the respondent Nos.1 to 7, but the scope of the suit for specific performance of the contract for sale cannot be enlarged to a suit for title and possession by granting leave to defend to them to file the Second Appeals. Hence, I.A.No.1 of 2018 in S.A.Nos.1350 and 1359 of 2018 filed to grant leave to the petitioners to file the Second Appeals against the decree and judgment in A.S.Nos.11 and 12 of 2006 and on the file of the III Additional District Judge (F.T.C.), Ranga Reddy District at L.B.Nagar are dismissed. Consequently, the I.A.No.2 of 2018 filed to condone the delay of 1830 and 2210 days in filing the Second Appeals are also dismissed. In view of dismissal of the above applications, the Second Appeals are also dismissed.
20. In the result, the I.A.No.1 of 2018 in S.A.No.1350 of 2018 and I.A.No.1 of 2018 in S.A.No.1359 of 2018 filed to grant leave to the petitioners to file Second Appeals are dismissed. Consequently, the I.A.No.2 of 2018 in S.A.No.1350 of 2018 and I.A.No.2 of 2018 in 25 Dr.GRR,J I.A.Nos.1 and 2 of 2018 in/and S.A.No.1350 and 1359 of 2018 S.A.No.1359 of 2018 filed to condone the delay of 1830 and 2210 days respectively in filing the Second Appeals are also dismissed. In view of dismissal of the above applications, the Second Appeals are also dismissed. No order as to costs.
Miscellaneous Applications, if any pending, shall stand closed.
_____________________
Dr. G. RADHA RANI, J
June , 2023
ss