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Madhya Pradesh High Court · body

2014 DIGILAW 1640 (MP)

Kulwant Singh v. State of M. P.

2014-12-10

ROHIT ARYA

body2014
JUDGMENT 1. Delink, Second Appeal No.609/2008 and Contempt Case No.134/2013. By this petition under Article 226 of the Constitution of India, petitioner, Kulwant Singh s/o Inder Singh has sought for a direction to the respondent No.3, Sub-Registrar to register the sale deed dated 20.4.2011. 2. Relevant facts for disposal of this petition are in narrow compass: 3. There is a title dispute pending in the form of Second Appeal No. 609/2008 (Ramnarayan and others v. Savitri Bai and others). The applicants/intervenors are the appellants and vendors shown in the aforesaid sale deed are respondents in the second appeal. 4. This Court while admitting Second Appeal No.609/2008 on 17.2.2010 has framed the following substantial questions of law and as a measure of interim protection under Order XLI rule 5 CPC (I.A.No.1031/2006) had directed that the status quo as regards possession of the suit property shall be maintained by the parties. “(i) Whether the Courts below were justified in decreeing the suit for declaration and exclusive possession of ½ share without there being any relief of partition claimed by the plaintiffs in the plaint ? (ii) Whether in absence of a specific challenge being made by the plaintiffs against the execution of the Will, the finding regarding execution of Will would sustain, in view of the specific Evidence adduced by the defendants ? (iii) Whether the Suit as filed by the plaintiffs was barred by Limitation and was not maintainable ? (iv) Whether the Suit was liable to be dismissed for want of non payment of requisite Court fee and for mis joinder of parties ? (v) Whether the judgment, decree and findings are perverse and contrary to law and passed ignoring the admissions and based on wrong assumptions of facts and law ? The aforesaid order was made absolute on 20.3.2010. 5. It appears that after admission of the appeal, the draft sale deed was prepared on 20.4.2011 in respect of the suit property wherein the petitioner is shown to be purchaser and the respondents in second appeal as sellers. The aforesaid order was made absolute on 20.3.2010. 5. It appears that after admission of the appeal, the draft sale deed was prepared on 20.4.2011 in respect of the suit property wherein the petitioner is shown to be purchaser and the respondents in second appeal as sellers. Intervenors having come to know about the aforesaid sale deed have submitted objections before the Sub-Registrar objecting to the registration of the sale deed in the light of pendency of the second appeal wherein substantial questions of law have been framed in the context of the aforesaid dispute between the parties and the interim order passed by this Court therein for maintenance of status quo as regards possession of the suit property. 6. The intervenors have also filed a contempt petition vide Contempt Case No.134/2013 on 11.2.2013 alleging contempt of Court’s order as respondents in the second appeal have in order to transfer the suit property had prepared the sale deed to be executed in favour of the petitioner despite interim orders passed by this Court on 17.2.2010 and 20.3.2010 (supra). It is also stated in the contempt petition that a writ petition has also been filed by the prospective buyer seeking a direction for registration of sale deed with out impleading the appellants in the second appeal as party to the writ petition. Since then, the contempt petition is pending for consideration. 7. Applicants in the contempt petition have filed an application for intervention (I.A.No.830/2013) in this writ petition opposing the relief claimed in the writ petition by the petitioner. It is pleaded that perusal of the sale deed reflects that there is material suppression of facts misleading in nature and highly prejudicial to the appellants in Second Appeal No.609/2008 (supra). In fact, the sale deed is sought to be executed behind back of the applicants/intervenors on the strength of misrepresentation of facts. It is further pleaded in the application that the aforesaid sale deed dated 20.4.2011 bears a stipulation that the vendors/respondents in Second Appeal No.609/2008 (supra) have title and are in possession over the suit property. They have exclusive right to transfer the same and vendee/purchaser has been delivered the possession of the suit property. There is no mention of the fact that Second Appeal No.609/2008 (supra) in respect of the suit property is pending consideration before the High Court and interim orders have been passed therein. They have exclusive right to transfer the same and vendee/purchaser has been delivered the possession of the suit property. There is no mention of the fact that Second Appeal No.609/2008 (supra) in respect of the suit property is pending consideration before the High Court and interim orders have been passed therein. It is further pleaded that in the judgment and decree passed, the trial Court has found that the applicants/appellants in Second Appeal No.609/2008 (supra) are in possession over the suit property and the respondents/vendors in the said second appeal held entitled to take possession from the appellants after partition of the suit property. As such, a false statement has been made in the sale deed that possession has been delivered to the vendee/purchaser; it reflects ulterior motive of parties to the sale deed dated 20.4.2011 to deceive the appellants in Second Appeal No.609/2008 (supra). With the aforesaid pleadings, it is submitted that in fact, in the light of substantial questions of law framed and interim orders passed by this Court in Second Appeal No.609/2008 (supra), the Sub-Registrar, Registration Office, District Ashok Nagar (respondent No.3) was fully justified having refused to register the sale deed dated 20.4.2011. Moreover, counsel for the intervenor submits that principles underlying section 52 of the Transfer of Property Act prohibits transfer of the property during pendency of the lis of the nature in hand. It is submitted that dispute between parties to the suit relates to the title of the suit property. Substantial questions of law framed by this Court while admitting Second Appeal No.609/2008 (supra) relates to determination of entitlement of share of parties to the suit in the suit property as the right to the suit property is being claimed by parties with divergent assertion namely; partition claimed by one party and existence of “Will” claimed by the other party. With the aforesaid submissions, it is prayed that the writ petition deserves to be dismissed. 8. The respondents/State filed the counter-affidavit and denied the relief claimed by the petitioner on the reasoning as has been shown by intervenors. 9. Counsel for the petitioner contends that the Sub-Registrar (respondent No.3) has fallen in error having refused to register the sale deed dated 20.4.2011 for the reason of interim order passed by this Court in Second Appeal No.609/2008 (supra). 9. Counsel for the petitioner contends that the Sub-Registrar (respondent No.3) has fallen in error having refused to register the sale deed dated 20.4.2011 for the reason of interim order passed by this Court in Second Appeal No.609/2008 (supra). It is submitted that the aforesaid interim order was only in relation to the maintenance of status quo by parties as regards possession of the suit property. There is no stay against alienation or creation of third party rights in the suit property. It is further submitted that in any case, the sale deed so executed is always subject to the decision in Second Appeal No.609/2008 (supra). With the aforesaid submissions, it is prayed that the Sub-Registrar (respondent No.3) be commanded to register the sale deed dated 20.4.2011. 10. Heard. 11. section 52 of the Transfer of Property Act in fact is a doctrine of lis pendens which is expressed in maxim ‘ut lite pendentet nihil innovetur’. It imposes a prohibition of transfer or otherwise dealing of any property during the pendency of a suit, provided the conditions laid down in the section are satisfied. The principle on which the doctrine rests is explained in the leading case of Bellamy v. Sabine, (1857)1 De G and J 566 pp 578, 584 where LJ Turner said : “It is, as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this 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 plaintiff would be liable in every case to be defeated by the defendant’s alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding.” 12. In the case of Amit Kumar Shaw and another v. Farida Khatoon and another, (2005)11 SCC 403 , the Hon’ble Supreme Court has dealt with the scope and object of section 52 of the Transfer of Property Act and held as under : “15. section 52 of the Transfer of Property Act is an expression of the principle “pending a litigation nothing new should be introduced”. section 52 of the Transfer of Property Act is an expression of the principle “pending a litigation nothing new should be introduced”. It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present : 1. There must be a suit or proceeding pending in a Court of competent jurisdiction. 2. The suit or proceeding must not be collusive. 3. The litigation must be one in which right to immovable property is directly and specifically in question. 4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. 5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.” 13. Undisputedly, title dispute between the appellants and the respondents in Second Appeal No.609/2008 (supra) is pending for consideration in this Court. The aforesaid second appeal was admitted on five substantial questions of law; the first two relates to the title asserted by either of the parties based on claim of share in partition and existence of ‘Will’. The trial Court has found possession of the suit property with the appellants in Second Appeal No. 609/2008 (supra). This Court while admitting the appeal has directed maintenance of status quo by the parties as regards possession. Under such circumstances, as a matter of fact, in all fairness, no third party rights should be allowed to be created which shall lead to multiplicity of the litigation against the judicial discipline and shall certainly have substantial bearing of inter se rights of the parties with prejudicial consequences. Under such circumstances, as a matter of fact, in all fairness, no third party rights should be allowed to be created which shall lead to multiplicity of the litigation against the judicial discipline and shall certainly have substantial bearing of inter se rights of the parties with prejudicial consequences. Further, the stipulation in the draft sale deed is to the effect that the vendors have exclusive rights and they are in possession and they have handed over the possession to the purchaser (petitioner in the present writ petition) appear to be de hors reasoning as there is no mention of the following therein : (i) as regards title dispute, pendency of Second Appeal No.609/2008 (supra); (ii) seeking relief of writ of Mandamus in the instant writ petition; the direction to the Sub-Registrar (respondent No.3) to register the sale deed dated 20.4.2011 without making either appellants or respondents in Second Appeal No.609/2008 (supra) as parties; (iii) pendency of Contempt Case No.134/2013 with effect from 11.2.2013; and (iv) interim order dated 17.2.2010 passed for maintaining status quo as regards possession of the suit property and the said order made absolute vide order dated 20.3.2010; are the circumstances which reflect on the conduct of the petitioner in collusion with the respondents’ in Second Appeal No.609/2008 (supra). Therefore, the counsel for the intervenor/applicants is right when he contends that the aforesaid sale deed dated 20.4.2011 is in fact an evil design to deceive the appellants and their valuable right to the suit property and to render Second Appeal No.609/2008 (supra) of no consequence. Besides, the same is the outcome of the collusion between the petitioner and the respondents in Second Appeal No.609/2008 (supra) with ulterior motive. 14. The submission of counsel for the petitioner that there is no stay against alienation or creation of third party rights in the suit property, therefore, there is no prohibition in execution of the sale deed in issue cannot be countenanced and in fact, the same is found to be not only against the principles underlying section 52 of the Transfer of Property Act but also an attempt to seek legal recognition of transfer of title by suppression and misrepresentation of facts. This cannot be permitted as our legal system does not approve of the same founded on principles of rule of law, justice, equity and good conscience. 15. This cannot be permitted as our legal system does not approve of the same founded on principles of rule of law, justice, equity and good conscience. 15. In view of the aforesaid, in the opinion of this Court, no equitable discretionary relief can be granted to the petitioner in exercise of the extraordinary Constitutional jurisdiction under Article 226 of the Constitution of India. The petition is devoid of merit is hereby dismissed. No order as to costs. ................