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2010 DIGILAW 1719 (PNJ)

Lakhwinder Singh v. Dilbagh Singh And Others

2010-05-19

AJAY TEWARI

body2010
Judgment Ajay Tewari, J. 1. This appeal has been filed against the judgment of the lower appellate Court reversing that of the trial Court and thereby granting the relief of specific performance (instead of alternative relief of recovery of damages as was granted by the trial Court). 2. Respondent No. 1 had filed a suit on the ground that he had entered into an agreement to purchase the house of the predecessor-in-interest of respondents No. 2 to 4 by agreement dated 6.2.1996 and had paid Rs. 50,000/- out of a total consideration of Rs. 1 lac at the time of agreement. As per the said agreement, the sale deed was to be executed on or before 15.2.1997. Respondent No. 1 appeared before the Sub Registrar with the requisite money but the predecessor-in-interest of respondents No. 2 to 4 did not appear. Ultimately, respondent No. 1 filed the instant suit for specific performance on 14.6.1997. By a sale deed dated 8.7.1997, the property in dispute was sold to the appellant. 3. Both the Courts have held on fact that respondent No. 1 had succeeded in proving the due execution of the agreement to sell; that the property agreed to be sold to respondent No. 1 was the same as was sold to the appellant and that respondent No. 1 had always been ready and willing to fulfill his part of the contract. The following questions of law have been proposed :- " 1) Whether the judgment and decree passed by the lower appellate Court is illegal by mis-appreciating the evidence on the record and without appreciating the principles of law and natural justice ? 2) Whether the trial Court has rightly dismissed the suit of the plaintiff/respondent for specific performance by appreciating the evidence and law ? 3) Whether the appellant is bona fide purchaser for consideration without notice ? 4) Whether the trial Court rightly executed the discretion in decreeing the suit for payment of Rs. 50,000/- ?" 4. It would be seen that questions No. 1,2 and 4 are overlapping questions of fact. Counsel for the appellant has not been able to persuade me that the findings recorded thereon are either based on no evidence or are based on such misreading of evidence so as to render the same so perverse as to be liable for interference under Section 100 of the CPC. 5. Counsel for the appellant has not been able to persuade me that the findings recorded thereon are either based on no evidence or are based on such misreading of evidence so as to render the same so perverse as to be liable for interference under Section 100 of the CPC. 5. In regard to question No. 3, counsel for the appellant has relied upon Mrs. Vijaya Shrivastava v. M/s. Mirahul Enterprises & others, 2007(4) R.A.J. 671:2006(3) RCR (Civil) 740 wherein the Honble Supreme Court held as follows :- "8. The doctrine of lis pendens was invoked by the learned counsel appearing on behalf of the plaintiffs-appellants. He submitted that the alienation in favour of defendant No. 6 had taken place during the pendency of the suit and, therefore, the decree passed by the single judge was binding on defendant No. 6. We do not find any merit in this argument. 9. In the case of Jayaram Mudaliar v. Ayyaswamy reported in AIR 1973 SC 569, it has been held as follows : The purpose of section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. To the same effect is the judgment of the Kerala High Court in K.A. Khader v. Rajamma reported in 1995(2) R. C.R. (Rent) 227: AIR 1994 Kerala 122." 6 However, in the first place it must be noticed that the lower appellate Court has held on fact that the appellant and the predecessor-in-interest of respondents No. 2 to 4 had connived with one another to defeat the right of respondent No. 1. Apart from that, as regards the judgment in Mrs. Vijaya Shrivastav s case (supra), counsel for respondent No. 1 has relied upon a sub-sequent judgment of the Honble Supreme Court (and indeed a judgment of the same Honble Bench which had decided the case cited by counsel for the appellant), reported as Sanjay Verma v. Manik Roy and others, 2007(1) R.A.J. 12:2007(1) RCR (Civil) 408, wherein the Honble Supreme Court has held as follows :- 9. In Bibi Zubaida Khatoons case (supra) on which learned counsel for respondents had placed reliance in fact goes against the stand of the respondents. In Bibi Zubaida Khatoons case (supra) on which learned counsel for respondents had placed reliance in fact goes against the stand of the respondents. Though a casual reading of paragraph 9 supports the stand taken by the respondents, it is to be noted that the factual position was entirely different. In fact a cross suit had been filed in that case. Respondents being transferees pendente lite without leave of the court cannot as of right seek impleadment in the suit which was in the instant case pending for a very long time. In fact in para 10 of the judgment this Court has held that there is absolutely no rule that the transferee pendente lite without leave of the Court should in all cases contest the pending suit. In Sarvinder Singh v. Dalip Singh and Ors., (1996(5) SCC 539) it was observed in para 6 as follows : 6. Section 52 of the Transfer of Property Act envisages that: During the pendency in any court having authority within the limits of India ... 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. It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the court. Admittedly, the authority or order of the court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit. 10. In Dhurandhar Prasad Singh v. Jai Prakash University and Others 2001(4) R.C.R.(Civil) 280: (2001(6) SCC,534) it was noted as follows : 7. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit. 10. In Dhurandhar Prasad Singh v. Jai Prakash University and Others 2001(4) R.C.R.(Civil) 280: (2001(6) SCC,534) it was noted as follows : 7. Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karrabuldin (ILR (1898) 25 Cal 179) he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devoluassigned reasons, even while dismissing the special leave petition without ordering notice, as the petitioner has made detailed sub-missions and as a similar issue may arise in other applications. Petition dismissed.