Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 2409 (MAD)

Venkatesan v. E. Dhavamani

2010-06-15

M.VENUGOPAL

body2010
Judgment :- 1. The Civil Revision Petitioner/Petitioner/Appellant has filed the present Civil Revision Petition as against the order dated 27.01.2009 in C.M.P.No.1915 of 2008 in A.S.No.519 of 2008 passed by the learned I Additional Judge, City Civil Court, Chennai. 2. The Learned I Additional Judge, City Civil Court while passing orders in C.M.P.No.1915 of 2008 on 27.01.2009 has among other things observed that the petitioner who is not a party to the suit, while pending suit had purchased a portion of a suit property on 28.03.1983 under sale deeds, which are hit by doctrine of Lis Pendens. Therefore, the Lis Pendens purchaser cannot question about the Division of Allotment of share made by an Advocate Commissioner, etc., and resultantly, dismissed the said petition. 3. According to the Learned counsel for the Revision Petitioner/Petitioner/Appellant, the order of the Learned I Additional Judge, City Civil Court passed in C.M.P.No.1915 of 2008 in A.S.No.519 of 2008 dated 27.01.2009 is contrary to law, weight of evidence and against the ratio laid down by this Court and the Honble Supreme Court and further, the said order is against the settled principle of law. 4. It is the further contention of the Learned counsel for the Revision Petitioner that the First Appeal is a continuation of suit proceeding and therefore the Revision Petitioner is entitled to get his claim adjudicated in the Appeal and till such time, the execution proceedings can be stayed, failing which it will take away the valuable rights of the petitioner. 5. Proceeding further, the Learned counsel for the Revision Petitioner submits that the order of the First Appellate Authority in dismissing the stay petition C.M.P.No.1915 of 2008 will amount to decide the First Appeal against the Revision Petitioner and if the execution is allowed to be proceeded with and if the Revision Petitioner is dispossessed from the property pending appeal his right will be foreclosed and the appeal will become infructuous, particularly when the delivery has been ordered in execution. 6. Also, it is the plea of the Revision Petitioner that he purchased 1800 sq. ft. of land from the Defendants and put up construction worth about Rs.50 lakhs in the portion purchased without knowledge about the partition suit between the Plaintiffs and defendants and in fact, the Defendants are required to have entitled to half share in the suit property in the Preliminary Decree. ft. of land from the Defendants and put up construction worth about Rs.50 lakhs in the portion purchased without knowledge about the partition suit between the Plaintiffs and defendants and in fact, the Defendants are required to have entitled to half share in the suit property in the Preliminary Decree. Further, the Revision Petitioner has been impleaded in the application for Final Decree in I.A.No.10461 of 1984 in O.S.No.4747 of 1977 by the Respondents by order dated 23.02.2005 made in I.A.No.3955 of 2005 in I.A.No.10461 of 1984. As a matter of fact, in a Final Decree, the plaintiffs have been allotted 5026 sq. ft. and the Defendants have been allotted 5036 sq. ft. 7. The main contention of the Revision Petitioner is that the First Appellate Court has committed an error in dismissing the C.M.P.No.1915 of 2008 holding that the Revision Petitioner is not entitled to equitable partition which in effect deciding the First Appeal and therefore, prays for allowing the Civil Revision Petition in the interest of justice. 8. Per contra, the Learned counsel for the Respondents submits that the First Appellate Authority has specifically observed in the course of his order in the stay petition C.M.P.No.1915 of 2008 that the Revision Petitioner who is not a party to the suit, while pending suit has purchased an extent of 1,800 sq.ft. of the suit property from the Legal heirs of M.Gurunathan viz., Defendant under the sale deeds dated 28.03.1983 and as such, the Revision Petitioner purchased is hit by the principle of Lis Pendens and consequently, has rightly dismissed the petition on merits which need not be interfered with by this Court sitting in Revision. 9. In the affidavit in C.M.P.No.1915 of 2008, the Revision Petitioner has among other things averred that he purchased the property measuring an extent of 1,800 sq.ft. 9. In the affidavit in C.M.P.No.1915 of 2008, the Revision Petitioner has among other things averred that he purchased the property measuring an extent of 1,800 sq.ft. bearing Door No.165, Old Door No.64/2, Kunnoor High Road, Ayanavaram, Chennai 600 023 comprised in Paimash No.972, Part of Survey 71/1, etc., from Lakshmiammal, W/o Gurunathan and others by virtue of a Sale Deed dated 28.03.1983 and after the purchase of old tiled house has been polished and that he has obtained a sanctioned plan and building permit and availed the loan from the Bank mortgaging the property and put up multi-storeyed construction and that the plaintiffs filed an application to implead him as a party to the suit filed in I.A.No.10461 of 1984 in O.S.No.4747 of 1977 which was allowed on 23.02.2005 and that he has been impleaded as a party 10th Respondent/10th Defendant in the Final Decree during the year 2005. 10. It is the stand of the Revision Petitioner that the suit has been filed for partition of the property comprised in S.Nos.71/2, 71/3 and that he has purchased a old tiled house with vacant land in S.No.71/1 measuring 1800 sq. ft. and after purchase, he has constructed the building spending more than Rs.20 lakhs and further that the property purchased by him is not the subject matter of the property in S.Nos.71/2 and 71/3 as described in the schedule to the partition suit in O.S.No.4747 of 1977 and the Final Decree passed thereon. 11. The plea of the Revision Petitioner is that he is entitled to equitable partition and allotment of the property measuring 1800 sq.ft. Purchased and possessed by him towards the share of his vendors in I.A.No.10461 of 1984 in O.S.No.4747 of 1977 who are declared to be entitled to and allotted 5036 Sq.ft. In the Report filed in the Final Decree petition in I.A.No.10461 of 1984 and that in Law, he is entitled to work out his remedy in the Final Decree proceedings even if he is lis pendens purchaser and therefore, prays for stay of all further proceedings in E.P.No.801 of 2008 in I.A.No.10461 of 1984 in O.S.No.4747 of 1977 pending disposal of the appeal. 12. 12. In the counter filed by the Respondents/Plaintiffs, it is mentioned that one K.Ethirajan filed a suit for partition against M.Gurunathan in O.S.No.4747 of 1977 and obtained a Preliminary Decree on 18.07.1983 and the Defendants, the Deceased Gurunathans Legal heirs (Judgment Debtors) preferred A.S.No.384 of 1984 as against the Judgment and Decree in O.S.No.4747 of 1977, which was dismissed and later, the second appeal S.A.No.649 of 1987 filed by the Legal heirs of the deceased Gurunathan was allowed and resultantly, SLP was filed by the Legal heirs of the deceased Plaintiff K.Thiagarajan in C.A.No.8720 of 1997, which was allowed by the Honourable Supreme Court on 26.09.2003. 13. According to the Respondents, pursuant to the Honble Supreme Court orders, the Preliminary Decree was restored and the Final Decree Application was taken up for hearing and in the Final Decree application I.A.No.10461 of 1984, the Legal heirs of the deceased Gurunathan projected I.A.Nos.8458 and 8459 of 2005 for marking documents and to issue sub-poena to the Tashildar, Pursawalkkam Taluk and the said Applications were dismissed by the trial Judge on 09.08.2005 and later, C.R.P.Nos.1286 and 1287 of 2005 filed against the said orders were dismissed by this Court on 22.12.2006. 14. Added further, in the aforesaid C.R.Ps, this Court has observed that the proceedings cannot be reopened since it amounts to interfering the Preliminary Decree which has been confirmed by the Supreme Court in C.A.No.8720 of 1997 and it amounts to res judicata as per Section 11 of the Civil Procedure Court. Further, the Legal heirs of the deceased Gurunathan filed S.L.P C.C.Nos.10291 and 10292 of 2007 and the same were dismissed by the Honble Supreme Court on 29.10.2007 15. That apart, the Revision Petitioner/Appellant filed I.A.Nos.13858 and 13859 of 2007 to reopen the case and to receive the documents and the same was dismissed on 11.09.2007 and C.R.P.Nos.195 and 196 of 2008 filed by the Revision Petitioner were dismissed by this Court on 19.02.2008 wherein this Court has observed that the remedy open to the Revision Petitioner/Appellant is only to proceed against his vendors. Even the Review Application No.69 of 2008 filed against C.R.Ps.195 and 196 of 2008 have been dismissed by this Court on 13.06.2008. 16. Even the Review Application No.69 of 2008 filed against C.R.Ps.195 and 196 of 2008 have been dismissed by this Court on 13.06.2008. 16. At this stage, the Learned counsel for the Respondents brings to the notice of this Court that the Revision Petitioner/Appellant has filed a suit for permanent injunction against the 7th and 13 th Respondents before the Learned XI Assistant Judge, City Civil Court, Chennai and the suit has been dismissed on 14.02.2008 and later, I.A.Nos.6916 and 6917 of 2008 filed to restore the suit as well as to grant interim stay have been dismissed on 09.07.2008 which have become infructuous. 17. In fact, the Legal heirs of the Deceased Gurunathan filed I.A.No.8391 of 1991 to examine the Town Surveyor to locate the property which has been dismissed by the Learned City Civil Judge on 29.04.1992. 18. The Learned counsel for the Respondents contends that the Revision Petitioner/Appellant has no right to question the division of allotment of share made by the Advocate Commissioner as well as the Final Decree and surely Section 52 of the Transfer of Property Act and Section 11 of the Civil Procedure Code will come into operative play in the present case on hand and therefore, the petitioner has to obey the orders in Final Decree in I.A.No.10461 of 1984 dated 12.09.2007 in O.S.No.4747 of 1977. 19. The Learned counsel for the Revision Petitioner cites the decision of the Honble Supreme Court PABBATHI VENKATARAMAIAH CHETTY V. PABBATHI N.RATHNAMAIAH CHETTY AND OTHERS, 2007 STPL (LE) 37854 SC, wherein at paragraph No.5, it is observed as follows:- "The said order is under challenge. The Learned counsel for the appellant submits that he is in possession of the suit premises and his prayer was for interim stay of dispossession as he is running a lodge and an order of stay of demolition will not, therefore, protect his rights, pending appeal. On the other hand, the Learned counsel for the first respondent submitted that the appellant has been enjoying the suit premises and though the first respondent is entitled to two-third share therein, he has been kept out of possession and he is also not receiving any income therefrom. It is not in dispute that the appellant is running a lodge in the suit premises. The appeal against Final Decree filed before the High Court may become infructuous if stay of dispossession is not granted. It is not in dispute that the appellant is running a lodge in the suit premises. The appeal against Final Decree filed before the High Court may become infructuous if stay of dispossession is not granted. But at the same time, the interests of the first respondent require to be protected. The learned counsel for the first respondent estimates the minimum loss to his client as Rs.25,000/- per month. 20. He also relies on the decision of the Honble Supreme Court ATMA RAM PROPERTIES (P) LTD. V. FEDERAL MOTORS (P) LTD., (2005) 1 SUPREME COURT CASES 705, wherein it is held that the condition that may be imposed under Or.41 R.5(3)(c) is not only the condition which the Appellate Court can impose and since the power to grant stay is equitable in nature, an applicant for stay must do equity for seeking equity and depending on the facts of a given case, an Appellate Court while passing an order of stay may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. 21. The Learned counsel for the Revision Petitioner brings to the notice of this Court to the decision K.PERAMANAYAKAM PILLAI V. T.SIVARAMAN AND ANOTHER, AIR 1952 MADRAS 419, wherein it is among other things held that the alienee was entitled to have a condition imposed in the very suit that the plaintiff should not recover possession of his half share of the property without payment of half share of the binding consideration. 22. That apart, the Learned counsel for the Revision Petitioner cites the decision of this Court VENKATAMMAL V. SINNA VENKATARAMA CHETTIAR AND OTHERS reported in MANU/TN/0226/1975 wherein it is held that an alienee of an alienee of the share from an undivided coparcener has a right by himself to maintain a suit for working out his equitable right of asking for a partition and allotment of the share of the alienating coparcener. Such a right, is heritable and transferable. Such a right, is heritable and transferable. Further, he relies on the decision AIYYAGIRI VENKATARAMAYYA AND ANOTHER V. AIYYAGARI RAMAYYA reported in MANU/TN/0147/1902, wherein it is held as follows:- "The claim of a transferee from a co-parcener to work out the transfer is no doubt an equitable claim in the sense that he must be a transferee for value and in cases where the transfer relates to a specific portion of the family property, he has no legal right, any more than his transferor himself, to insist on that specific portion being allotted to the share of the vendor. Being purchaser for value he will have an equity to have such portion or so much thereof as is practicable so allotted, if that can be done without prejudice to the interests of the other sharers. In any suit which may be brought by him to enforce the sale, all the members of the family should be joined as parties as in a partition suit, the subject-matter of the suit being the family property as it existed at the date of the transfer. Such a suit may, at the option of the members of the family, assume the character of a family partition suit and a decree may be passed for a partition, among all the members, of the entire family property. 23. However, the Learned counsel for the Respondents cites the decision of this Court DHANALAKSHMI AND OTHERS V. P.MOHAN AND OTHERS, 2005 (2) CTC 254 , wherein it is held that the purchasers of property pending partition suit sought to implead themselves and their purchase hit by doctrine of lis pendens and then cannot claim equity and therefore, they are not entitled to get impleaded in the suit. He also relies on the decision of the Honble Supreme Court GURUSWAMY NADAR V. P.LAKSHMI AMMAL (DEAD) THROUGH LRS. AND OTHERS, (2008) 5 SUPREME COURT CASES 796 at page 797, wherein it is held as follows:-"Normally, as a public policy once a suit has been filed pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, principle of lis pendens has been evolved so that litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that some subject-matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end." 24. He also seeks in aid to the decision of the Honble Supreme Court RAJ KUMAR V. SARDARI LAL AND OTHERS, (2004) 2 SUPREME COURT CASES 601, wherein it is held that Bringing a lis pendens transferee on record is not as of right but in the discretion of the Court. But, though not brought on record, the lis pendens transferee remains bound by the decree." 25. That apart, on the side of the respondents, reliance is placed on to the decision of the Honble Supreme Court RAGHUNATH RAI BAREJA AND ANOTHER V. PUNJAB NATIONAL BANK AND OTHERS, 2007 (5) CTC 642, at page 643, wherein it is held that whenever there is conflict between Law and Equity, Law has to prevail and Equity can only supplement law but it cannot supplant or override law. 26. It is to be borne in mind that the ingredients of Order 41 Rule 5 of the Civil Procedure Code point out that a discretionary jurisdiction has been showered on the Court and order of stay may be granted if sufficient cause is made out. No doubt, the power to grant its discretionary and flows from the jurisdiction conferred on an Appellate Court which is equitable in nature. Consequently, Order 41, Rule 5 of the Civil Procedure Code applies to the parties to the suit. 27. Coming to the aspect of the principle of Lis Pendens, it is to be pointed out that the object is to maintain status quo unaffected by the act of parties to the proceedings/litigation till it is determined. Admittedly, the purchaser of pendente lite is bound by the result of the suit, in the considered opinion of this Court. 28. At this stage, this Court aptly recalls the decision of the Honble Supreme Court KEDAR NATH LAL AND ANOTHER V. GANESH RAM AND OTHERS, 1969(2) SUPREME COURT CASES 787 at pages 792, 793, wherein it is among other things observed as follows:- "15. 28. At this stage, this Court aptly recalls the decision of the Honble Supreme Court KEDAR NATH LAL AND ANOTHER V. GANESH RAM AND OTHERS, 1969(2) SUPREME COURT CASES 787 at pages 792, 793, wherein it is among other things observed as follows:- "15. The first argument is that there could be no lis pendens till August 16, when the money award was issued because a money suit or proceeding cannot lead to the application of the doctrine of lis pendens. As a proposition of law the argument is sound but it is wrongly grounded on fact. The proceeding was to get a mortgage award, the equivalent of a mortgage decree. The Court made a mistake and treated it as a proceeding for a money decree. When the Court corrected its order, the mortgage award related back to the petition as made and the whole of the proceeding must be treated as covered by the doctrine. We cannot, therefore, accept the suggestion that the doctrine did not apply; at any rate, on this suggested ground. 16. The second ground of attack is that before the proceedings commenced before the Registrar these fields had been attached and, therefore, the doctrine of lis pendens again cannot apply. We are unable to accept this argument either. If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition. This result is not avoided by reason of the earlier attachment. Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property. On the other hand, Section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation. Therefore, the attachment was ineffective against the doctrine. Authority for this clear position is hardly necessary but if one is desired it will be found in Moti Lal v. Karrab-ul-Din (24 IA 170). 17. Lastly it was contended that the sale was by Court auction and the doctrine of lis pendens would not apply to such a sale. This point was considered in Samarendra Nath Sinha v. Krishna Kumar Nag ((1967) 2 SCR 18) by one of us (Shelat J.) and it was observed as follows: “... 17. Lastly it was contended that the sale was by Court auction and the doctrine of lis pendens would not apply to such a sale. This point was considered in Samarendra Nath Sinha v. Krishna Kumar Nag ((1967) 2 SCR 18) by one of us (Shelat J.) and it was observed as follows: “... The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holdar v. Monohar (15 IA 97), where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well-established that the principle of lis pendens applies to such alienations. (See Nikant v. Suresh Chandra (12 IA 171) and Motilal v. Karrab-ul-Din (24 IA 170). This ground also has no validity." 29. This Court aptly points out the decision HIRANYA BHUSAN MUKHERJEE AND OTHERS V. GOURI DUTT MAHARAJ AND OTHERS, AIR (30) 1943 CALCUTTA 227, wherein it is laid down as follows: "The doctrine with which S.52 is concerned rests upon the foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The correct mode of stating the doctrine is that "pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent." During a litigation nothing new should be introduced-Pendente lite nihil innovetur: (1857) 1 De. G.& J. 566 (Per Turner L.J.) and 29 ALL, 339 (P.C.), Rel. on." 30.Further, in SYAMA CHARAN DAS V. SATYA PRASAD CHAUDHURI, AIR 1923 CALCUTTA 252, it is held as follows:- "A purchaser pendente lite is bound by the decree in the previous suit and is no better position than the defendants in the suit whose right, title and interest had vested in him. He cannot escape the operation of Section 52 either because he purchased at an involuntary sale or because the suit terminated in a consent decree." 31. He cannot escape the operation of Section 52 either because he purchased at an involuntary sale or because the suit terminated in a consent decree." 31. Besides the above, the applicability of Section 52 of the Transfer of Property Act cannot depend on the matters of proof or the weakness of the case of one side or the other. One cannot brush aside an important fact that a Transferee is not absolved from the liability under Section 52 of the Transfer of Property Act. 32. The salient features of the applicability of Section 52 of the Transfer of Property Act are as follows:- a) Pendency of suit; b) Right to immovable property must be in the suit in question; c) It must be directly and substantially in question; d) Other side must also have an interest in the same property transferred by the other; A transfer pendente lite binds the parties to the transaction. Indeed, the term lis pendens covers the whole period from the commencement of litigation till the Final Decree is satisfied. No wonder, the Principle Lis pendens will apply to the partition suit. 33. On a careful consideration of respective contentions and inasmuch as the Order 41 Rule 5 of the Civil Procedure Code applies to the parties to the suit only and since the Revision Petitioner who is not a party to the suit and pending suit, he has purchased the portion of the suit property, certainly he is bound by the result of the suit, as opined by this Court. Further, since the Lis Pendens relates to the entire period from the commencement of the litigation till passing of the Final Decree and the Revision Petitioner in the considered opinion of this Court stands on no better footing than that of the Legal heirs of the deceased Defendant Gurunathan. It cannot be lost sight of that during lis pendens the parties to the litigation are required to maintain status quo till the litigation is resolved. The refusal of stay in the present case by the First Appellate Court by exercising its judicial discretionary power under Order 41 and Rule 5 of the Civil Procedure Code does not suffer from any material irregularity or patent illegality and viewed in that perspective, the Civil Revision Petition fails. 34. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. 34. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. The First Appellate Court viz., the Learned I Additional Judge, City Civil Court, Chennai is directed to dispose of A.S.No.519 of 2008, pending on its file within a period of three months from the date of receipt of a copy of this order and report compliance to this Court without fail. The parties are directed to lend a helping hand to the First Appellate Court viz., the Learned I Additional Judge, City Civil Court, Chennai, in regard to the completion of the Appeal proceedings, so as to give a quietus to the controversies/disputes involved. The connected miscellaneous petition is closed.