JUDGMENT Nirmal Yadav, J.:-This is defendants second appeal challenging the judgment & decree dated 17.10,1981 passed by the Sub Judge IInd Class, Kaithal and the judgment & decree dated 29.1.1982 of the 1st Appellate Court affirming the aforesaid judgment & decree passed by the trial Court. 2. The facts leading to the present case are that Gurdev Singh and Sadhu Singh (appellants-defendants No.2 and 3), sold land measuring 12 kanals vide sale deed dated 13.12.1976 in favour of Saroop Chand (respondent No.4/defendant No.1) for consideration of Rs.9000/-. Raghbir Singh and his two brothers i.e. respondent No.1 to 3/plaintiffs filed a suit for pre-emption claiming superior right being the vendee and co-sharer in ithe suit land. According to respondents-plaintiffs, the appellants-defendants are the sons of their father’s brother. It was also pleaded that actually Rs.4000/- was paid as sale consideration. Defendant-Saroop Chand (vendee) filed written statement stating that he was left with no title or interest in the suit land as the sale in his favour had been declared null and void vide civil Court decree passed in civil Suit No.428 of 1978 titled as Gurdev Singh, etc. vs. Saroop Chand, decided on 22.4.1978. The present appellants filed written statement submitting that sale deed dated 13.12.1976 for Rs.9000/- was got written by Saroop Chand in his favour in collusion with the scribe by taking undue advantage of their illiteracy. It was alleged that the land in question had been mortgaged for a sum of Rs.7500/- by their father Mula Singh to Smt. Pritto Devi. However, the possession remained with Mula Singh. After the death of Mula Singh, the land was inherited by both Gurdev Singh and Sadhu Singh along with their mother Jai Kaur and sister Gurdev Kaur in equal shares. Saroop Chand did not pay the entire sale consideration before the Sub Registrar and objections were raised by the present appellants. Accordingly, the present appellants challenged the sale on the basis of fraud. In the said suit, decree was passed against Saroop Chand and accordingly, the appellants paid the sale consideration along with costs to Saroop Chand and the sale was declared to be null and void. The trial Court framed several issues. However, the basic issues were as to whether the plaintiffs Raghbir Singh, etc.
In the said suit, decree was passed against Saroop Chand and accordingly, the appellants paid the sale consideration along with costs to Saroop Chand and the sale was declared to be null and void. The trial Court framed several issues. However, the basic issues were as to whether the plaintiffs Raghbir Singh, etc. have a superior right to pre-emption; whether the sale was a nullity as alleged by the defendants (appellants herein) ; and whether the decree dated 22.4.1978 is collusive and fraudulent and what was its effect. 3. The trial Court after considering the facts and evidence on record decided that plaintiffs had a superior right of pre-emption and further held that decree dated 22.4.1978 passed during the pendency of the suit for pre-emption filed by the plaintiffs, was hit by the principle of lis pendens. The 1st Appellate Court affirmed the findings of the trial Court. 4. I have heard learned counsel for the parties and perused the material on record. 5. Learned counsel for the respondents while taking up a preliminary objection, argued that the appellants had filed the suit challenging the sale after the institution of the suit by the plaintiffs and both the courts below had given a clear finding that doctrine of lis pendens would apply to pre-emption suit as the decree obtained by the vendors against Sarup Chand, vendee was collusive. Learned counsel argued that these are pure findings of fact, which would not warrant interference by this Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure and no substantial question of law is involved. 6. On merits, the learned counsel for the appellants, however, argued that a consent or collusive decree is as good a decree as obtained after contest and the same would bind the appellants as well as their successors-in-interest unless and until it is avoided in one of the permissible ways. He further argued that the Court in a second suit is not permitted to go behind the earlier decree because such a decree had already settled the rights of the parties and the subsequent. Court is not entitled to go into the questions as to whether the earlier decree was passed on wrong facts or correctly. In support, the learned referred to a judgment of this Court Harpal and others vs. Smt. Ram Piari and others, 1981 P.L.J. 492.
Court is not entitled to go into the questions as to whether the earlier decree was passed on wrong facts or correctly. In support, the learned referred to a judgment of this Court Harpal and others vs. Smt. Ram Piari and others, 1981 P.L.J. 492. Learned counsel further argued that since the sale itself has been declared as nonest and void, the suit for preemption was liable to be dismissed. He further pointed that the sale consideration had been deposited by the appellants, which is evident from the Receipt, Exhibit P-8. 7. On the other hand, learned counsel for the respondents-plaintiffs argued that the appellants filed suit after filing of suit for preemption the plaintiffs-respondents and the decree was obtained by them in a fraudulent manner. The Plaintiffs were not made party in the said suit and such a decree obtained behind the back of the plaintiffs-respondents is not binding against their interest. Learned counsel further argued that appellants Gurdev Singh and Sadhu Singh had no right to sell the specific khasra numbers as the land had not been partitioned. After the death of Mula Singh, the land had been inherited by both of them along with their mother and sister. Learned counsel for the respondents further argued that a co-sharer in exclusive possession of some portion of joint holding can transfer that portion subject to adjustment at the time of partition of land out of joint holding by one of the co sharers. 8. In the present case, the main question involved is, Whether the sale in favour of Saroop Chand having been declared null and void, would defeat the right of the pre-emptors in view of doctrine of ‘lis pendens’. The appellants in the present case, assert their right on the basis of a collusive decree in their favour. However, the doctrine of ‘lis pendens’ forbids creation of new rights over property, which already is the subject matter of suit and is directed to injure the rights of the claimants. The law does not allow the litigating parties having right in the property in dispute to prejudice the rights of other party.
However, the doctrine of ‘lis pendens’ forbids creation of new rights over property, which already is the subject matter of suit and is directed to injure the rights of the claimants. The law does not allow the litigating parties having right in the property in dispute to prejudice the rights of other party. The doctrine of ‘lis pendens’ would certainly apply in favour of the pre-emptor as against a person of the transaction or in other words against a person who had not acquired the property in exercise of any superior right of pre-emption, but had acquired it merely in the course of transaction from the original vendee. The appellants would, in a way, have acquired the status of a second vendee as they have acquired right in the suit property during the pendency of the suit for pre-emption. It is well established that if the transaction has taken place during the pendency of the suit of the pre-emptor to pre-empt the sale, then the doctrine of lis pendens would apply to the case and the suit of the pre-emptor must succeed. A Full Bench of Lahore High Court in Mt. Sant Kaur vs. Teja Singh, Plaintiff and others, AIR (33) 1946 Lahore 142, has held that doctrine of lis pendens applies to a suit for preemption. Similar is the view expressed by a Full Bench of Jammu & Kashmir High Court in Aziz Dar vs. Sona Dar and others, AIR 1970 Jammu & Kashmir 37. Learned counsel also referred to a judgment of Rajasthan High Court reported as AIR 1965 Rajasthan 124, Nandkishore and another vs. Shri Nath and others), wherein there was a sale by father on his own behalf and as a guardian of the minor sons. The sale was pre-empted and father and sons were impleaded. The sons took the objection with regard to validity of the sale of their share on the ground of legal necessity. The Court held that the decree in which sale of share was set aside in another suit by sons to which pre-emptor was not made a party, was not binding on the pre-emptor as pre-emptor was not a representative-in-interest of the vendee. The doctrine of lis pendens does not allow the litigating parties pending the litigation to transfer their rights in the property in dispute so as to defeat or prejudice the right of the pre-emptor.
The doctrine of lis pendens does not allow the litigating parties pending the litigation to transfer their rights in the property in dispute so as to defeat or prejudice the right of the pre-emptor. If the second transfer is recognized, it would be hit by the doctrine of lis pendens as envisaged by Section 52 of the Transfer of Property Act, 1882 which reads as under: “52. Transfer of property pending suit relating thereto. - 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 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.” In the present case, there is nothing on record to show that the plaintiffs-respondent do not have a superior right of pre-emption. Once plaintiff’s right of pre-emption is found to be superior to that of the original vendee at all the material times, the circumstances, during the pendency of such a suit, under which the property changes hands by the reason of retransfer by the vendee, will not affect their right to decree of their claim irrespective of the qualification possessed by the subsequent transferee. He cannot defeat the plaintiffs’ suit on any ground available to him, may be his own pre-emptive right in respect of original sale being equal or superior to that of the former. The collusive decree as a result of the suit filed by the appellants against the original vendee is certainly a collusive transaction between the appellants and vendee Saroop Chand. The present suit for pre emption was filed on 4.1.1978, whereas, the suit for declaration of sale deed as null and void, was filed by the appellants against Saroop Chand on 6.4.1978. The pre-emptors Raghbir Singh, etc. were not made a party to the said suit, though the appellants had already put in appearance in the present suit.
The present suit for pre emption was filed on 4.1.1978, whereas, the suit for declaration of sale deed as null and void, was filed by the appellants against Saroop Chand on 6.4.1978. The pre-emptors Raghbir Singh, etc. were not made a party to the said suit, though the appellants had already put in appearance in the present suit. Any decree obtained collusively by the appellants at the back of the respondents plaintiffs is not binding on them and it does not affect their rights. 9. Accordingly, I do not find any ground to interfere with the ‘findings recorded by the Courts below whereby it has been found that doctrine of lis-pendens applies to present suit and obtained by appellants-vendors was collusive. Dismissed. decree ________________________