Gurdial Singh and Others vs Sewa Singh and Others

In order to appreciate the contentions raised by the learned counsel for the appellants in this regular second appeal a few facts may be narrated.

Makhan Singh, Joginder Singh, Mohinder Singh and Meja Singh agreed to sell the land in dispute to Sewa Singh, Kirpal Singh and Phoola Singh by an agreement dated 15-4-1959 for a sum of Rs. 11,000/-, Rs. 3,600/- were paid under the agreement. The sale deed was to be executed till 20-5-1959 which was not executed. Sewa Singh etc. vendees in the agreement then filed a suit for specific performance of the agreement of sale on 22-10-1959. This suit was decreed on 29-8-1960 and ultimately the appeal of Makhan Singh etc. was dismissed by the High Court on 5-1-1965. In accordance with the directions of the High Court, the sale deed was executed on 15-1-1966. The appellants in this appeal who, are the sons of the vendors, the filed a suit for pre-emption pre-empting the sale of the land to Sewa Singh and others. This suit was resisted by Sewa Singh and others, respondents and the controversy between the parties was resolved in 10 issues. The plea taken by the respondents in the written statement was that they were tenants of the land in dispute at the time of the sale and, therefore, the plaintiffs had no superior right of pre-emption regarding the land in dispute. This controversy is the subject matter of the suit in question. The learned trial Judge decided issue No. 6 in favour of the plaintiffs whereas the learned Lower Appellate Court reversed the finding of the learned trial Court on this issue and found the said issue against the plaintiffs as a result thereof the suit was dismissed.

The controversial issue therefore is issue No. 6 which is as under--

"Whether the defendants are tenants at will under the vendors at the time of the sale and if so to what effect?"

The findings of Lower Appellate Court on the remaining issues have not been assailed before me and as such the same are affirmed.

Mr. Atma Ram, the learned counsel for the appellants, contends that keeping in view the facts of this case the doctrine of its pendens, as enacted in Section 52 of the Transfer of Property Act, is not applicable and the same had been wrongly applied by the learned lower Appellate Court. For this the learned Counsel relies on Malhu Jaishi and Another Vs. Shamlal and Others, ; Bishan Singh and Others Vs. Khazan Singh and Another, , and Damodar v. Hari Singh 1970 Cir LR 371, and contends that the facts as given in these cases are similar to the present case and therefore, the finding of the learned lower appellate Court in that contention be reversed.

It is no more in dispute that the respondents who are the vendees in this case, were the tenants of the land in dispute on 15-4-1959. The learned counsel for the appellants has not disputed this finding of fact recorded by both the Courts below. His contention is that they were not the tenants of the land in dispute when the sale deed was executed. For that it is to be seen that when the respondents filed a suit for specific performance they claimed themselves to be in possession of 25 Bighas 3 Biswas of land and sought possession of 5 Bighas and 6 Biswas. The parties did not lead any evidence as to in what manner the respondents were dispossessed of the land consisting of 5 Bighas and 5 Biswas. The only evidence of ejectment is that of Phoola Singh respondent when he stated that they were not in possession of 5 Bighas and 6 Biswas at the time of the execution of the sale deed. No evidence has been led by the plaintiffs to show that the respondents were ejected from this land in accordance with law, or there was an ejectment order passed before the application. It is clear from the provisions of Section 52 of the Transfer of Property Act that if a property is dealt with during the pendency of a suit it will have no effect on the rights of the parties to the dispute. Thus the ejectment of the respondents, which was not in accordance with law, could not affect the rights of the respondents, adversely and in that situation, the rights of the respondents who were the tenants of the land at the time of the agreement cannot be adversely affected and they shall have to be deemed to be the tenants even subsequently until and unless ejected in due course of law. Therefore, the dispossession of the respondents from the land measuring 5 Bighas and 6 Biswas will not affect their tenancy. The learned lower appellate Court has rightly come to this conclusion and has referred to a number of authorities for reaching this conclusion.

In Malhu Jaishi and Another Vs. Shamlal and Others, the facts are quite different from that of the present case. In that case the rights of third party were brought in subsequent to the sale of the land in order to defeat the rights of the pre-emptors. It was held that the third party, who was the tenant, had no superior right of pre-emption at the time of the sale and, therefore, the said sale would not affect the rights of the pre-emptors. It was further held that the subsequent transfer in favour of the tenants created new rights in them and consequently the transfer in their favour was hit by the doctrine of lis pendens. I fail to appreciate as to how this case helps the learned counsel for the appellants. In the present case, the third party has not intervened. It was the matter between the vendors and the vendees. The vendees did not bring in any third party in order to defeat the rights of the pre-emptors.

In the authority reported in Bishan Singh and Others Vs. Khazan Singh and Another, , their Lordships of the Supreme Court held that it is settled law in Punjab that the rule of lis pendens is as much applicable to a suit to enforce the right of pre-emption as to any other suit. But the rule applies only to transfer pendente lite and it cannot affect pre-existing rights. If the sale is a transfer in recognition of a pre-existing subsisting right, it would not be affected by the doctrine as the said transfer does not create new right pendente lite: but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer though ostensibly made in recognition of such a right in fact created only a new right pendente lite. These observations of their Lordships of the Supreme Court in fact would support the case of the respondent. The appellants had no pre-existing right to dispossess the respondents during the pendency of the suit for specific performance without the aid of any provisions of law.

The authority reported in (1970) 72 Pun LR 371, relied upon by the learned counsel for the appellants, is not relevant and need not be discussed any further. Therefore there is no merit in the contention of the learned counsel for the appellants that the order of the learned lower Appellate Court is wrong when it applies the rule of lis pendens in this case.

If the matter is looked at from another angle, that is, after the decree for specific performance was granted and the sale was executed in consequence of the said decree, the said sale would relate back to the date of the agreement and in that situation the sale would have to be deemed to be effected, in the eyes of law, on the date of the agreement. It is not denied that the respondents were the tenants on the date of the agreement. It was held in a case reported In Dina v. Gujaba AIR 1926 Nag 95, that the title of the vendee in the case of a decree for specific performance relates back to the date of the agreement on which the suit is based and the decree cannot be rendered nugatory by intermediate conveyance. In A. Tomlinson v. W. F. Harding AIR 1930 Lah 131 it was held that from the time of the contract for the sale of immovable property the vendor becomes a trustee of the property for the vendee, and the vendee becomes a trustee for the vendor in respect of the purchase money. It is, therefore, clear that the title of the vendee relates back to the date of the execution of the agreement to sell. The learned counsel for the appellants relies on the authorities reported in Mrs. Christine Pais v. K. Ugappa Shetty AIR 1966 Mys 299, in which it was held that the title to the vendees passes with the execution and registration of sale deed and does not flow from decree. Similarly in Hakim Enayat Ullah Vs. Khalil Ullah Khan and Another, , it was held that the execution of the deed transfers the title and till then property vests with the judgment-debtor. Similar view was taken in the case reported in Shewantabai v. Vishwasrao Govindrao AIR 1953 Nag 167, and it was held that the decree for specific performance does not confer a title. It is only the subsequent sale deed alone which passes the title. But note of these authorities discussed the question as to whether after the sale deed recording the transfer of the property is executed in obedience to a decree for specific performance, it relates back to the date of the agreement or not, Therefore, none of these authorities is of any help to the learned counsel for the appellants. In my opinion, the said transfer dates back from the date of the agreement as it is on the basis of the agreement itself that a suit for specific performance has been decreed as a consequence of which the sale deed is executed. The basis is the agreement and the moment the sale is executed, it dates back to the date of the agreement. Thus from whatever angle this appeal is looked, it is liable to be dismissed.

For the reasons recorded above, there is no merit in this appeal and the same is hereby dismissed with costs.

Appeal dismissed.