Raj Singh and Others vs Maharaj Mal and Others

S.N. Phukan, C.J.—The present petition is directed against the judgment dated 15.9.1994 passed by the learned Sub Judge 1st Class, Palampur in a petition filed u/s 47 of the CPC in Execution Petition No. 20/93/90. By the impugned judgment, the learned executing Court dismissed the said petition filed by the present Petitioners.

The suit was filed by present Respondent No. l against Respondents No. 2 to 6 and late Jagdish Ram, which was dismissed both by the trial Court as well as the learned lower Appellate Court. A Second Appeal was laid before this Court which was registered as RSA No. 7 of 1979. The appeal was allowed by judgment dated 2nd May, 1990 (Reported in 1990 (2) Sim. L.C. 189). This Court decreed the suit for recovery of possession of the land described in the schedule below on the basis of title of the Plaintiffs. The Plaintiffs-Decree holders filed an Execution application and in the said application, the present petition u/s 47 of the CPC was filed.

In the Second Appeal, by order dated 12th September, 1979, on an application filed by the Plaintiff-Appellant under Order 39 Rules 1 and 2 of the Code of Civil Procedure, which was registered as CMP No. 196 of 1979, this Court directed that "any alienation made by the Respondents will be subject to the result of this appeal and in case of transfer, the transferee shall be bound by the decree which may ultimately be passed. As regards further construction, the Respondents may raise any construction from now onwards but the same shall be at their own risk with the result that they shall not be entitled to claim any compensation for improvements made over the, property from today onwards.

The present Petitioners admittedly purchased part of the suit land after the above order, therefore, they have resisted the Execution Petition on the ground that they are bonafide purchasers and they purchased the land after taking reasonable care to ascertain that the transferees had the power to make the transfer and, therefore, they are protected u/s 41 of the Transfer of Property Act, 1882. It has also been pleaded that they had no notice of the appeal pending between the parties and they made improvements/developments by raising the constructions on the land purchased by them and also by spending substantial amount of money. Particulars of such construction has been annexed as Annexure PA to the present Petition.

The learned Executing Court took note of the fthat the transfer of the land in respect of the present Petitioners was pendente lite and, therefore, they are bound by the decree passed by this Court. The learned executing Court also took note of the fthat almost in all the sale deeds, there is a condition from which it is clear that the Petitioners had the knowledge of pending litigation.

Heard Hr. A.K. Goel, learned Counsel for the Petitioners and Mr. Chhabil Dass, learned Counsel for Respondent No. l.

Mr. Goel has placed before this Court a catena of decisions in support of his claim that as the Petitioners were bonafide purchasers without notice and that they took reasonable care before purchase, their purchase is protected u/s 41 of the Transfer of Property Act, 1882. Reliance has been placed on a decision of the apex Court in Shri Lachoo Mal Vs. Shri Radhey Shyam, . That was a dispute under the Rent Control and the apex Court had no occasion to consider either Section 41 or Section 52 of the Transfer of Property Act, 1882. The ratio laid down in that case was ''that where during the tenancy governed by Rent Control Act, the landlord entered into an agreement by which tenant was to vacate premises for reconstruction and landlord was to redeliver same after reconstruction, no question of policy, much less public policy, could arise, and the landlord can waive the exemption benefit available for constructions and that such agreement is neither illegal nor unlawful nor defeating the provisions of any law within the meaning of Section 23 of the Contract. This ratio is not applicable to the facts of the case in hand.

The next decision, on which reliance has been placed by the learned Counsel is a decision of Punjab and Haryana High Court in Achhar Singh and Ors. v. The State of Punjab and Ors. 1979 P.L.J. 278. In that case, after migration to India from Pakistan, one Jagir Singh was allotted some land but subsequently, the Rehabilitation Authorities discovered that Jagir Singh had no land in Pakistan and, therefore, the allotment was cancelled and the land was allotted to some other person. The Respondents in the writ petition purchased the land and, therefore, the persons in whose favour the land was subsequently allotted filed the writ petition. Relying on earlier decision of the same High Court, it was held that Respondents shall be protected u/s 41 of the Transfer of Property and on that ground the writ petition was dismissed. From the above decision, it is clear that question of decree was not involved and as such provision of Section 52 of the Transfer of Property was not applicable and was also not considered.

The next case on which the learned Counsel has placed reliance is a decision of the Punjab and Haryana High Court in Rattan Singh and Anr. v. Chief Settlement Commissioner Haryana and Ors. 1978 P.L.J. 47. In this case also, the facts are similar to the above case of the Punjab and Haryana High Court, namely, Achhar Singh''s case (supra) inasmuch as the land was allotted to a person, who migrated from Pakistan, which was subsequently cancelled, but before cancellation, it was purchased by the writ Petitioners before the Court. The High Court considered Section 41 of the Transfer of Property and hold that following four main requirements are necessary to be proved for getting the benefit of Section 41. These conditions are:

(i) That the transferor is the ostensible owner,

(ii) That he is so by the consent, express or implied, of the owner,

(iii) That the transfer is for consideration, and

(iv) That the transferee has acted in good faith taking reasonable care to ascertain that the transferor had the power to transfer.

In the case in hand apart from other facts to which I shall refer in view of the pending litigation before this Court, the transferee was neither the owner nor had the power to dispose of the land in view of the order of this Court, dated 12th September, 1979. Therefore, this decision is also not helpful for the present Petitioners. The learned Counsel for the Petitioners has also placed reliance on the following decisions, namely, (1) Shamsher Chand v. Bakhshi Mehr Chand and Ors. AIR 1947 Lah 147 , (2) The Catholic Mission Presentation Convent and Another Vs. Subbanna Goundan and Others, (3) Gholam Sidhique Khan and Others Vs. Jogendra Nath Mitra and Another, and (4) Sadiq Hussein and Ors. v. Co-operative Central Bank Yeotmal and Ors. AIR 1952 Nag 106.

In all these above decisions, the High Courts considered Section 41 of the Transfer of Property and not Section 52 of the said Act. Regarding requirements of Section 41 of the Transfer of Property Act, there is no dispute. The only question that arises is whether the present Petitioners can get the protection of the above Section in view of Section 52 of the Transfer of Property Act.

In the case in hand, as stated above, there is no dispute that all the purchases took place after the interim direction was issued by this Court on 12th September, 1979 and during the pendency of the appeal before this Court. Therefore, the present case is squarely covered by Section 52 of the Transfer of Property Act. The said Section, inter alia, provides that during the pendency in any Court having authority within the limits of India 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. From the explanation to the said Section 52, it is absolutely clear that 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.

Section 52 is absolutely clear that during the pendency of the suit or proceeding, the immovable property involved in the case directly cannot be transferred. The contention of the learned Counsel for the Petitioners that as both the Courts below dismissed the suit and the appeal, mere pendency of the Second Appeal before this Court will not attrthe provisions of Section 52 of the Act, which I am unable to accept in view of the Explanation to Section 52.

Mr. Chhabil Dass has placed reliance on two decisions, namely, Simla Banking and Industrial Co. Ltd. Vs. Firm Luddar Mal Khushi Ram and Others, and Kanshi Ram and Others Vs. Kesho Ram Bahna and Others, .

In Simla Banking and Industrial Company Ltd. (supra), the Punjab High Court considered the doctrine of lis pendens elaborately and held that this doctrine is to invest the Court with complete control over alienations in the res which is pendente title and thus to render its judgment binding upon the alienees, as if they were parties, notwithstanding the hardship in individual cases.

In Kanshi Ram''s case (supra), it was held that Section 41 must yield to the doctrine of lis pendens under which no title in property could be validly transferred during the pendency of the litigation in respect to it.

With respect, I agree to the ratio laid down in both the above decisions, namely, Simla Banking and Industrial Co. Ltd. (supra) and Kanshi Ram (supra) and hold that the principle embodied in Section 41 is an exception to the general rule that a person cannot pass a better title in the property than he himself has and the result could be avoided only under the equitable principle of estoppel laid down in Section 41 of the Transfer of Property Act, but this principle must yield to the doctrine of lirs pendens as contained in Section 52 of the Transfer of Property Act, which is a rule of public policy as otherwise such alienation during the pendency of the suit will defeat the very purpose of litigation. Section 52 also binds the party, who is not a party to the litigation even if it may cause hardship to him.

Situated thus, I hold that ''even though hardship may be caused to the present Petitioners, their petition cannot be allowed and if it is so done, it will defeat the very purpose not only the provisions of Section 52 of the Act, but also the decree obtained by Respondent No. l.

Mr. Goel with all strength at his command has strenuously urged and has also taken me through the evidence to bring home the point that Respondent No. l was residing in the area in question and saw the construction going on, but he did not produce or did not bring it to the notice of the Petitioners about the pending litigation and, therefore,, the Petitioners are protected u/s 41 of the Transfer of Property Act. As held by me above, Section 41 must yield to the provisions of Section 52, therefore, this contention has no force.

Mr. Chhabil Dass, learned Counsel for Respondent No. l has drawn my attention to the decision of this Court in Second Appeal and has urged that even in the revenue record, the name of the seller of the land in favour of the present Petitioners was recorded as mortgagee. Therefore, according to the learned Counsel, the present Petitioners cannot turn around to say that after due verification they found that the seller had clear title to sell the land. I find considerable force in the contention of the learned Counsel.

I have perused the sale deeds and I find that in almost all the sale deeds, there is a clause indicating that "in the event the possession of the land goes out from the seller due to some legal proceedings or otherwise, the purchaser will be entitled to get back his amount". Therefore, I entirely agree with the learned Executing Court that the Petitioners had knowledge about the pending litigation.

Mr. Goel has further submitted that even now the Petitioners are willing to purchase the land, but Respondent No. l is asking for exorbitant price of the land. I may record here that this Court granted sufficient time to the parties for a compromise and, therefore, this contention of the learned Counsel needs no consideration. Apart from that, sitting at revisional Court, I cannot take this submission of the learned Counsel into consideration for deciding the matter in favour of the Petitioners.