Kanti Devi vs Ram Autar Agrawal

B. Amit Sthalekar, J.—Heard Shri Ashok Nath Tripathi, learned counsel for the appellant.

This is the plaintiff''s second appeal.

The plaintiff filed a suit for permanent injunction restraining the defendants from dispossessing the plaintiff from the suit property and not to interfere in her peaceful possession of the same. The case of the plaintiff was that she was a tenant in the suit premises Block No. 78 Bareilly Development Authority Colony Kargaina Badaun Road, Bareilly since 2002. Block No. 78 consists of two rooms and she was in occupation of both the rooms as tenant. She did not know who the landlord was but she was paying rent to the defendant no. 1 Ram Autar Agarwal. It was only when she received an application from the defendants no. 2 and 3 then she came to know that the suit property had been sold to the defendants no. 2 and 3 through a sale deed. A written statement was filed by the defendant no. 1 denying the plaint allegations. It was stated that the suit was filed on 2.1.2010. Block no. 78/1 was the ground floor and Block No. 78/2 was the first floor. The title of this entire block was with the Bareilly Development Authority (B.D.A.). The B.D.A. executed a sale deed in respect of Block no. 78/1 in favour of defendant no. 1- Ram Autar Agarwal on 25.3.2010. According to the defendant no. 1 he has no concern with Block no. 78/2. The defendant no. 1 in the written statement stated that he sold the suit property Block no. 78/1 to the defendant no. 3 through a registered sale deed dated 1.4.2010. A written statement was also filed by the defendant no. 2 Smt. Meenu in which it was stated that the disputed house no. 78/2 first floor belonged to B.D.A. and its title was never with the defendant no. 1 Ram Autar Agarwal. The B.D.A. executed sale deed dated 25.3.2010 in favour of one Sri Subhash Chandra Agarwal in respect of house no. 78/2 through a registered sale deed and the house no. 78/2 was acquired by the defendant no. 3 from Subhash Chandra Agarwal through a registered sale deed dated 1.4.2010. A written statement was filed by the defendant no. 3 Shailendra Chaudhary in which he reiterated the same facts as stated in the written statement of D.W. 1 stating that the title of house no. 78/1 was with B.D.A. The B.D.A. executed a registered sale deed of the said property in favour of defendant no. 1 Ram Autar Agarwal through a registered sale deed dated 25.3.2010. Ram Autar Agarwal in turn executed a duly registered sale deed dated 1.4.2010 in favour of Shailendra Chaudhary in respect of house no. 78/1 and thus the defendant no. 3 Shailendra Chaudhary is now the owner and title holder of house no. 78/1.

The trial court examined the documentary evidence, namely, sale deed paper no. 72 Ga and 73 Ga in respect of the house property no. 78/1 and 78/2 which showed that they were two different blocks in the name of Ram Autar Agarwal and Subhash Chandra Agarwal respectively. Ram Autar Agarwal executed a registered sale deed of Block no. 78/1 in favour of Shailendra Chaudhary, defendant no. 3 and Subhash Chandra Agarwal executed a registered sale deed of Block no 78/2 in favour of defendant no. 2 Meenu and thus the court below has held that the contention of the plaintiff that she was in possession of both the rooms 1 and 2 of Block No. 78 was on the face of it incorrect. The courts below have also noted that the plaintiff herself stated that she did not know who was the landlord of the property but she used to pay rent to Ram Autar Agarwal and that she was in possession of the suit property since 2002. This was also held to be incorrect by the courts below on the ground that prior to the sale deed executed by the B.D.A. in favour of Ram Autar Agarwal in respect of Block No. 78/1 and Subhash Chandra Agarwal in respect of Block no. 78/2 the title of the suit property belonged to the B.D.A. which means that the plaintiff was a rank trespasser and therefore it is not known as to how the plaintiff could have claimed to have been in possession of the two rooms of Block no. 78. The courts below have also held that the plaintiff was not able to file any rent note or rent agreement which may have been executed between her and Ram Autar Agarwal which alone would have shown that she was tenant of Ram Autar Agarwal and the copies of the Pan card, Insurance bills showing the address of Block No. 78 would not suffice to show that she was a tenant of the said premises.

Learned counsel for the appellant raised a plea that it has come on record that the suit was filed on 2.1.2010 whereas the suit property is stated to have been sold by the defendant no. 1 Ram Autar Agarwal to defendant no. 3 Shailendra Chaudhary by a registered sale deed on 25.3.2010 and that such sale could never have taken place as Section 52 of the Transfer of Property Act places a complete embargo on any such transfer of suit property to a third person during the pendency of the suit therefore the plaintiff''s suit ought to have been dismissed on that ground alone.

Section 52 of the Transfer of Property Act reads as under:

"52. Transfer of property pending suit relating thereto.-During the 1[pendency] in any Court having authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[any] suit or proceedings which is not collusive and in which any right to immoveable 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 any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

7[Explanation.-For the purposes of this section, the pendency of a suit or 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."

In my opinion the submission is fallacious for the reason that the purpose of Section 52 of the Transfer of Property Act and the embargo placed upon a transfer of suit property during the pendency of the suit is only to protect the interest of the plaintiff so that the plaintiff''s suit may not be frustrated by dissipation of the suit property through alienation by transfer to any third party.

The provisions of Section 52 of the Act have been incorporated specifically to protect the interest of the plaintiff to ensure that a suite does not fail simply because the suit property has changed hands during the pendency of the suit with an additional rider that the purchaser/third party of such suit property is also under notice that any right which he may claim under the deed of transfer of such property would be subject to the outcome of the suit. Such transfer of suit property would always be voidable at the instance of the affected party. The law in this regard has already been settled by the Allahabad High Court in (2013) 6 A.L.J. 152 Phulgen and others v. Vinay Kumar Tiwari. Paragraph 30 thereof reads as under:

"Section 52 of the T.P. Act puts an embargo upon the transfer of the property during pendency of the suit without taking permission of the Court but it stops short of providing the effect of is violation. A consequence of a transfer which is hit by doctrine of lis pendens is that such a transaction is voidable at the option of the affected party. A person who actually purchases the property during pendency of the suit for specific performance without the leave of the Court does so at its own peril and the sale/transfer made in his favour is always in danger of being declared illegal, null and void by the competent court. He purchases the property with open eyes presumably aware of the pendency of the suit and if not due to concealment on part of the vendor, his cause if any, would be against the vendor for damages and restitution of the sale consideration and not to defend the enforcement of the agreement to sell. Nevertheless, the sale deed executed during pendency of the suit without the leave of the Court cannot be declared to be void in a suit for specific performance unless the party in whose favour the sale deed exists is given an opportunity to participate in the same."

The trial court has accordingly dismissed the plaintiff''s suit holding that the plaintiff is not a tenant of Block No. 78/1 or Block No. 78/2 and instead falls within the definition of a trespasser. Aggrieved the plaintiff filed an appeal no. 73 of 2015 which has also been dismissed reiterating the findings of fact recorded by the trial court.

Both the courts below have therefore dismissed the plaintiff''s suit on pure findings of fact. The objection raised by the learned counsel for the appellant with regard to the provisions of Section 52 of the Transfer of Property Act may be a legal question but having already been settled by the Allahabad High Court in the case of Phulgen (supra) it give no longer be said to be a substantial question of law. Thus no substantial question of law arises in this second appeal.

The second appeal lacks merit and is accordingly dismissed.