Udayanath Das and Others vs Banshidhar Senapati and Others

R.N. Misra, J.—Plaintiffs have carried this appeal against the affirming decree of the learned Subordinate Judge of Puri in a suit for tide, possession and injunction.

The disputed property originally belonged to Gopal Lenka, husband of Defendant No. 2 and father of Defendant No. 3. Gopal had mortgaged the property in favour of one Lingaraj Sahu on 8-8-1953. Lingaraj filled a suit for recovery of his monthly in Title Suit No. 168 of 1958 and obtained a decree on 7-2-1961, Earlier on 31-7-1956, Defendant No. 1 had entered into a contract with Gopal for purchasing the self-same property and he filed a suit for specific performance of contract against Gopal in Title Suit No. 183 of 1959 and he too obtained a decree for specific performance on 22-12-1962 Defendant No. 1 levied execution of the decree in E.P. No. 185 of 1963 and got a sale deed executed through Court. He applied to the Court in E.P. No. 299 of 1964 for delivery of possession. By then Gopal had sold the disputed property to Plaintiff No. 1 for satisfaction of the mortgage dues. Plaintiff No. 1 who had cleared the mortgage dues under the decree after taking possession sold a portion of the property to Plaintiff No. 2 on 21-4-1962. In E.P. No. 299 of 1964 started by Defendant No. 1, Plaintiffs resisted delivery of possession. Defendant No. 1 thereafter initiated a proceeding under Order 21, Rule 97, CPC against the Plaintiffs in Miscellaneous Case No. 140 of 1967 and dispossessed the Plaintiffs. Thereafter the Plaintiffs instituted the present suit on 10-9-1969.

Defendant No. 1 was the real contestant. He maintained that the sale deed in favour of Plaintiff No. 1 by Gopal was collusive.

The learned Trial Judge held that there was no collusion between Gopal and Plaintiff No. 1 and Plaintiff No. 1 was a bona fide purchaser for value. He also held that possession bad not been delivered to Defendant No. 1 under the contract for sale and Gopal renamed in possession till the transfer in favour of the Plaintiff No. 1. He, however, in yoked Section 52 of the Transfer of Property Act and found that the sale under Ext. 1 was hit by lis pendens. The suit was, therefore, dismissed.

In appeal, Plaintiffs challenged application of Section 32 of the Transfer of Property Act and contended that the said section was not applicable to the facts of the case. If Gopal, the vendor, has not parted with possession under the contract of sale, and there was no part performance of the contract, no interest had been created in the suit property and in the facts of the case, Section 52 of the Transfer of Property Act should not have been applied.

Section 52 of the Transfer of Property Act provides:

During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding 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 or 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.

Explanation....

Admittedly the sale in favour of Plaintiff No. 1 was during the pendency of the suit for specific performance and in that suit, right to immovable property was directly and specifically in question. It is well settled that the doctrine of lis pendens is applicable to a suit for specific performance of contract See Dutt maharaj v. Sukur Mohommed and Smt. Vraj Kuwar Bai and Others Vs. Kunjbiharilal Krishnachandra and Others, . In my opinion, both the Courts below rightly applied Section 52 of the Transfer of Property Act to negative Plaintiff''s title under the sale deed obtained by him from Gopal Lenka during the pendency of the suit for specific performance. Consequently title obtained by Plaintiff No. 2 from Plaintiff No. 1 under the registered sale deed dated 21-4-1962 is bound to be negatived.

There is no merit in the appeal and the same is accordingly dismissed. Parties shall bear their own costs.