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2014 DIGILAW 761 (MAD)

T. K. Arun v. Ezhaliveerappan

2014-03-25

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. The plaintiff in the original suit O.S.No.330 of 2000 on the file of the Additional District Munsif, Cuddalore is the appellant in the second appeal. The second defendant and the first defendant in the original suit are respectively respondents 1 and 2 in the second appeal. Admittedly, Balaraman, the second respondent/first defendant was the owner of the suit property and he executed Ex.A2 sale deed dated 30.04.1999 registered as Document No.881 of 1999 on the file of the Joint Sub-Register, Cuddalore in favour of T.K.Arun, the appellant herein/plaintiff. Subsequently, claiming to have unilaterally cancelled the said sale deed, Balaraman, the second respondent / first defendant, executed another sale deed in favour of the first respondent herein/second defendant on 27.10.2000 registered as Document No.2488 of 2000 on the file of Joint Sub-Registrar No.I, Cuddalore. The said sale deed came to be marked as Ex.B3 in the suit. Even before the execution of Ex.B3 sale deed, the appellant herein/plaintiff filed the suit O.S.No.330 of 2000 on the file of the learned District Munsif, Cuddalore on 01.06.2000 against the respondents 1 and 2 herein for declaration of the appellant's/plaintiff's title to the suit property, for recovery of possession of the suit property and for mesne profits. The suit came to be filed against the respondents 1 and 2 on the strength of the pleading that the first respondent herein/second defendant was giving out that he was in possession of the suit property under some arrangement with the second respondent/first defendant. 2. The suit was resisted by the respondents herein/defendants based on their averments made in the written statements filed by them separately. The second respondent herein/first defendant contended that the appellant/plaintiff and his mother prevailed upon the second respondent/first defendant to execute a sale agreement in favour of Thenmozhi, the mother the appellant/plaintiff; that though the said agreement came to be executed much later at the instance of the appellant/plaintiff and his mother, it was antedated to 12.06.1998; that even at that point of time, it was brought to the notice of the appellant/plaintiff and his mother that the possession of the property had been with the first respondent/second defendant and that still they forced the second respondent/first defendant to execute the sale deed dated 30.04.1999, marked as Ex.A2. It was his further contention that since the said sale deed was obtained by force and misrepresentation, ignoring the said sale deed to be invalid and honouring the commitment made to the first respondent/second defendant under a lease deed dated 15.10.1997 and a sale agreement dated 04.05.1998, he executed a registered sale deed conveying the suit property to the first respondent/second defendant on 12.06.1998. Based on the above said contentions the second respondent/first defendant contended that the first respondent/second defendant was conveyed a valid title and he was not a trespasser and the suit for declaration and recovery of possession filed against the respondents 1 and 2/defendants 2 and 1 was liable to be dismissed. 3. The first respondent herein/second defendant filed a separate written statement contending that he got possession of suit property by virtue of a lease deed dated 15.10.1997, which was followed by a agreement for sale executed by the second respondent/first defendant in his favour on 15.11.1997; that in terms of the said agreement, he had got a sale deed dated 12.06.1998 executed in his name and as he had derived a valid title from the second respondent/first defendant and he was in possession and enjoyment of the suit property as the owner in his own right and that the suit filed by the appellant for declaration of his alleged title, recovery of possession and for mesne profit should be dismissed. 4. Based on the above said pleadings, the following issues were framed by the trial Court: "1) Whether the agreement for sale dated 04.05.1999 is true and valid and whether on the basis of agreement for sale the first defendant received a sum of Rs.2,50,000/- as advance from the plaintiff? 2) Whether the sale deed dated 30.04.1999 is true and valid in law? 3) Whether the first defendant has executed a lease deed in favour of the plaintiff on 01.05.1999? 4) Whether the cancellation deed dated 28.04.2000 is true and binds the plaintiff? 5) Whether the documents relating to the sale deed dated 15.11.1997 and 12.06.1998 are true and binds the plaintiff? 6) Whether the sale deed dated 12.06.1998 in favour of the second defendant is true and valid and whether it binds the plaintiff? 7) Whether the second defendant is in possession of the suit property in the capacity of absolute owner? 5) Whether the documents relating to the sale deed dated 15.11.1997 and 12.06.1998 are true and binds the plaintiff? 6) Whether the sale deed dated 12.06.1998 in favour of the second defendant is true and valid and whether it binds the plaintiff? 7) Whether the second defendant is in possession of the suit property in the capacity of absolute owner? 8) Whether the plaintiff is entitled to the relief of declaration of title as prayed for? 9) Whether the plaintiff is entitled to the relief of recovery of possession and past mesne profits? 10) To what relief the plaintiff is entitled?" 5. In the trial, three witnesses were examined as Pws 1 to 3 and 13 documents were marked as Exs.A1 to A13 on the side of the appellant herein/plaintiff and on the side of the respondents/defendants, the first respondent/second defendant figured as the sole witness (DW1) and three documents were produced as Exs.B1 to B3. 6. At the end of trial, the learned Additional District Munsif considered the evidence in the light of the arguments advanced on both sides and upon such consideration, decreed the suit as prayed for with costs and granted the reliefs of declaration and recovery of possession, relegating the decision regarding the quantum of mesne profits to a separate enquiry to be conducted under Order XX Rule 12 CPC. The said decree of the trial Court dated 30.07.2004 was challenged before the lower appellate Judge, namely the First Additional Subordinate Judge, Cuddalore in A.S.No.26 of 2005 by the first respondent herein/second defendant alone, arraying the appellant herein/plaintiff and second respondent/first defendant as respondents 1 and 2 therein respectively. The learned First Additional Subordinate Judge, after hearing, allowed the appeal, set aside the decree granted by the trial Court and dismissed the suit by his judgment and decree dated 26.10.2005. Aggrieved by and challenging the said decree of the lower appellate Judge, the present second appeal has been filed on various grounds set out in the grounds of second appeal. 7. Aggrieved by and challenging the said decree of the lower appellate Judge, the present second appeal has been filed on various grounds set out in the grounds of second appeal. 7. As mandated by Section 100 of the Code of Civil Procedure, which is to the effect that an appeal against the decree of a Court subordinate to the High Court shall lie to the High Court only on a substantial question of law, at the time of admission this Court identified and formulated two questions to be the substantial questions of law involved in the second appeal. They are: "1) Whether the Lower Appellate Court was right in holding that the title to the suit property resides in the first respondent by virtue of Ex.B2, the sale deed, dated 27.10.2000 executed in favour of the first respondent by the 2nd respondent which is a clear case of transfer pendente lite? 2) Whether the Lower Appellate Court was right in declaring Ex.A2 as illegal when no specific plea to that effect was advanced by the first respondent?" The first substantial question of law has to be recast with a correction referring to Ex.B3 as the sale deed in stead of Ex.B2 as the sale deed. 8. The arguments advanced by Mr.K.V.Shanmuganathan, learned senior counsel arguing on behalf of the counsel on record for the appellant/plaintiff and the arguments advanced by Mr.R.Muralidharan, learned counsel for the first respondent/second defendant are heard. The judgments of the Courts below and the materials available on record are also perused. The second respondent has chosen to leave the appeal without contesting it either in person or through counsel even though he was served with notice and his name has been found printed in the cause list. 9. This second appeal has been filed against the decree reversing the judgment of the trial Court. The appellant herein, as plaintiff, filed the original suit for declaration of his title to the suit property, for recovery of possession of the suit property from the respondents and for mesne profits. The claim is based on derivation of title from the original owner, namely Balaraman, the second respondent herein/first defendant. It is also not in dispute that the sale deed relied on by the appellant /plaintiff, which has been produced by him and marked as Ex.A2, is the one executed by Balaraman, the second respondent/first defendant. The claim is based on derivation of title from the original owner, namely Balaraman, the second respondent herein/first defendant. It is also not in dispute that the sale deed relied on by the appellant /plaintiff, which has been produced by him and marked as Ex.A2, is the one executed by Balaraman, the second respondent/first defendant. The same is a registered sale deed. Having executed a sale deed conveying the suit property in favour of the appellant herein/plaintiff, the second respondent/first defendant seems to have claimed that the said sale deed was obtained by coercion and misrepresentation and that hence, the same was unilaterally cancelled by him, which cancellation was followed by the execution of Ex.B3 sale deed in favour of the first respondent/second defendant. It is also not in dispute that the said sale deed marked as Ex.B3 came to be executed after the filing of the suit concerned in this second appeal. Any transaction that takes place during the pendency of the suit between one of the parties to the suit and a third party shall be subject to the result of the suit. Section 52 of the Transfer of Property Act dealing with such transfers reads as follows: "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 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 any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose." 10. It makes a transfer during the pendency of the proceedings before Court or Authority subject to the result of such proceedings. It makes a transfer during the pendency of the proceedings before Court or Authority subject to the result of such proceedings. Learned counsel for the contesting respondent, namely first respondent/second defendant, who claims to have derived a valid title under Ex.B3 even as against the appellant/plaintiff, would contend that since the sale was preceded by an agreement for sale, which was even prior to the date of Ex.A1 sale deed, his derivation of title is unassailable and that the doctrine of lis pendens cannot be applied to hold the sale made in his favour invalid or to hold that the sale made his in favour pending disposal of the suit filed by the appellant shall be controlled by the sale made to the appellant under Ex.A2 sale deed. In this regard, learned counsel for the respondent, relied on the judgment of the Hon'ble Apex Court in A.Nawab John & Ors. Vs. V.N.Subramaniam reported in 2012 (4) CTC 2006. In the said judgment, the Hon'ble Supreme Court has held that a transfer pending suit is not void but it shall be subject to the result of the suit or other proceedings. The scope of doctrine of lis pendens incorporated in Section 52 of the Transfer of Property Act, has been elucidated in the said judgment. There cannot be any quarrel over the proposition that a transfer pendenlite per se is not void or invalid and that the validity of the transfer shall be depending upon the result of the suit pending which such transfer had taken place. 11. In this case, it is not in dispute that a sale deed came to be executed in favour of the appellant/plaintiff on 30.04.1999 itself under Ex.A2. Though the appellant/plaintiff would claim that the sale was preceded by an agreement dated 04.05.1998 in favour of Thenmozhi, the mother of the appellant, which was marked as Ex.A1, the learned senior counsel appearing for the appellant would submit that de horse the said sale agreement, since a complete sale transaction took place on 30.04.1999 under Ex.A2 and the suit came to be filed based on title derived under Ex.A2, unless and until the defendants are able to prove a better title than that of the appellant/plaintiff, the appellant/plaintiff is bound to succeed in a suit for getting declaration of his title. It is the further contention of the learned senior counsel that though the first respondent/second defendant might have obtained a sale deed under Ex.B3, it was obtained only during the pendency of the suit and hence the same could not be projected as a weapon to defeat the title of the plaintiff. It is also the contention of the learned senior counsel for the appellant/plaintiff that though the first respondent/second defendant might have claimed to have obtained possession of the suit property under Ex.B1 lease deed dated 15.10.1997 and that he continued to be in possession after Ex.B2 agreement for sale dated 12.06.1998 in part performance of the contract for sale, the same would not have given him a valid title in respect of the suit property and that unless the first respondent/second defendant was able to prove that his possession was relatable to the agreement for sale and either he had performed his part of the contract in full or he was ever ready and willing to perform his part of the contract, the protection given to such an agreement holder under Section 53-A of the Transfer of Property Act shall not be available to him and that the said section would not disable the plaintiff from seeking recovery of possession based on title. 12. Per contra, learned counsel for the first respondent/second defendant would contend that since his possession of the suit property came to be admitted and he claims his possession to be in part performance of the agreement for sale under Ex.B2, his possession was the one protected under Section 53-A of the Transfer of Property Act till his right to protect his possession got merged with title when he got a Ex.B3 sale deed executed and that after he derived title under Ex.B3, his possession could not be successfully resisted or challenged by the appellant/plaintiff whose sale was only subject to the agreement executed by the second respondent in favour of the first respondent. In support of his contention, learned counsel for the first respondent relied on the following judgments: 1) Rambhau Namdeo Gajre Vs.Bapuji Dhotra (D) by LRs AIR reported in 2004 Supreme Court 4342 (1) ; 2) Mahadeva and others. Vs. Tanabai reported in 2004 Supreme Court 3854; and 3) Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi (dead) by Lrs and others reported in AIR 2002 SC 960 . Vs. Tanabai reported in 2004 Supreme Court 3854; and 3) Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi (dead) by Lrs and others reported in AIR 2002 SC 960 . This Court wonders how the learned counsel has made an attempt to project those judgments as judgments in his favour. The ratio decidendi contained therein is to the effect that a purchaser under an agreement for sale, who was put in possession in part performance of the agreement of sale, is entitled to protect his possession provided he has fulfilled his obligation under the agreement or he proves to be ever ready and willing to perform his part of the agreement. In this case, the subsequent execution of the sale deed during the pendency of the suit is sought to be projected by the first respondent/second defendant as fulfillment of his obligation under the agreement for sale produced as Ex.B2. But, as rightly contended by the learned senior counsel for the appellant, the said attempt made on behalf of the first respondent/second defendant is only an attempt made in futility, as the sale deed executed by the erstwhile owner during pendency of the suit filed by the appellant cannot be projected as fulfillment of the obligation under the agreement towards the appellant, who got subrogated to the rights of his vendor under Ex.A2, which took place prior to the sale deed relied on by the first respondent/second defendant. It is the further contention of the learned senior counsel for the appellant that as on the date of execution of Ex.B3 sale deed, no transferable title was available with Balraman, the second respondent /first defendant to convey a good title to the first respondent/second defendant and that by then the title got transferred to and vested with the appellant/plaintiff. It is the further contention of the learned senior counsel that even assuming that the agreement relied on by the first respondent/second defendant, namely Ex.B2 is genuine and valid, the remedy available to the first respondent/second defendant was to seek specific performance of the contract under the agreement or to try to protect his possession on the basis of Section 53-A of the Transfer of Property Act by proving the conditions requisite for availing such benefit. The very fact that the first respondent/second defendant failed to call upon the appellant/plaintiff to execute a sale deed honouring the commitment made by the appellants/plaintiff's vendor, namely Balaraman and the failure to offer to pay the balance of consideration to the appellant/plaintiff even during the pendency of the suit will show that the first respondent/second defendant was not ready and willing to perform his part of the contract under Ex.B2 agreement from the date of Ex.A2 sale deed till the date of execution of Ex.B3 sale deed, learned senior counsel pointed out. It is the further submission of the learned senior counsel for the appellant that the very fact that the first respondent /second defendant chose to make payment of the alleged balance amount of sale consideration to the erstwhile owner, namely Balaraman, the second respondent/first defendant, in preference to the appellant, will make it clear that the first respondent/second defendant was not ready and he was not inclined to perform his part of the contract under Ex.B2 agreement for sale towards the appellant/plaintiff and that hence, the first respondent's/second defendant's right, if any, under Section 53-A of the Transfer of Property Act stood forfeited and the embargo provided on the right of the owner to recover possession stood lifted. Though an attempt was made initially to contend that the sale deed executed in favour of the appellant/plaintiff under Ex.A2 was obtained by force and misrepresentation, there is dearth of evidence to prove their contention. Furthermore, if a sale is challenged as one obtained by force and misrepresentation, it is only voidable at the option of the person against whom such force was used or misrepresentation was made and it will not be void. The person affected should have taken steps to avoid the transaction in the manner known to law. The second respondent/first defendant, the vendor under Ex.A2, did not file any suit for declaration declaring Ex.A2 sale deed to be null and void. In the absence of any such proceeding, the sale deed executed in favour of the appellant/plaintiff under Ex.A2 remains unchallenged. That is the reason why, the learned counsel for the first respondent in the second appeal did not embark upon an argument on the above said lines and on the other hand, confined his arguments based on the alleged right of the first respondent/second defendant under Section 53-A of the Transfer of Property Act. That is the reason why, the learned counsel for the first respondent in the second appeal did not embark upon an argument on the above said lines and on the other hand, confined his arguments based on the alleged right of the first respondent/second defendant under Section 53-A of the Transfer of Property Act. In this regard, the contention of the learned counsel for the first respondent/second defendant that the very fact that he had paid the balance amount of sale consideration to the second respondent/first defendant Balaraman and got Ex.B3 sale deed executed would prove that he was ready and willing to perform his part of the obligation under the agreement and in fact, he had performed his part of the obligation under the agreement in full, does not seem to be a tenable one. 13. The owner of the property, who enters into an agreement for sale with another person, does not lose his title in respect of the property and he also does not lose his power of transferring his title to any other person. But, such transfer shall be subject to the right of the agreement holder. Of course, it was again subject to the exception provided in the proviso to Section 53-A of the Transfer of Property Act. The purchaser under an agreement for sale shall have the right to enforce the agreement, not only against the vendor under the agreement for sale, but also against any other person who has derived title from him subsequent to such agreement. In this case, though the first respondent/second defendant claims to have entered into an agreement with Balaraman, the second respondent/first defendant on 12.06.1998 under Ex.B2, before ever the transaction could be completed, transfer of title had taken place in favour of the plaintiff on 30.04.1999 under Ex.A2 sale deed. After such an occurrence of transfer of title in favour of the appellant/plaintiff, the second respondent/first defendant (Balaraman) did not have a transferable title to be validly transferred to the first respondent/second defendant. Under such circumstances, the remedy available to the first respondent/second defendant, namely the purchaser under the Ex.B2 agreement, was to file a suit making the second respondent/first defendant and also the appellant/plaintiff as parties seeking the relief of specific performance. As the first respondent/second defendant has not done so, the first respondent/second defendant cannot have any relief against the appellant/plaintiff. Under such circumstances, the remedy available to the first respondent/second defendant, namely the purchaser under the Ex.B2 agreement, was to file a suit making the second respondent/first defendant and also the appellant/plaintiff as parties seeking the relief of specific performance. As the first respondent/second defendant has not done so, the first respondent/second defendant cannot have any relief against the appellant/plaintiff. As the appellant/plaintiff has sought for the relief of declaration of his title and recovery of possession and also mesne profits based on his title, the same cannot be successfully resisted either by the first respondent/second defendant or by the second respondent/first defendant. 14. The learned trial Judge with a clear vision and on proper appreciation of evidence, rendered a correct finding that the sale deed dated 30.04.1999, marked as Ex.A2, conveyed a valid title to the appellant/plaintiff and that the reliefs sought for by the appellant/plaintiff based on the said title was not defeated by the respondents/defendants either in establishing that the said title was superseded by a better title on any one of the defendants or by the right of the first respondent/second defendant under Section 53-A of the Transfer of Property Act. The well considered judgment of the learned trial Judge came to be reversed by the learned lower appellate Judge, on an erroneous assumption that the sale deed executed, pending the suit filed by the appellant, will prove the derivation of a good title by the first respondent/second defendant. The learned lower appellate Judge seems to have been carried away by the fact that there is variation between Ex.A1 agreement for sale, which according to the appellant preceded the sale in favour of the appellant/plaintiff under Ex.A2 Sale deed and the sale deed regarding the total sale consideration. In Ex.A1 agreement in favour of Thenmozhi, the mother of the appellant/plaintiff, the sale consideration has been noted as Rs.3,00,000/- whereas the sale consideration noted in Ex.A2 sale deed is Rs.1,15,000/-. It is pertinent to note that Ex.A1 agreement was executed in favour of Thenmozhi, whereas Ex.A2 sale deed was executed in favour of T.K.Arun, the appellant herein/plaintiff. Ex.A1 agreement has not been referred to in Ex.A2 sale deed. Therefore, Ex.A1 agreement should have been disregarded. It is pertinent to note that Ex.A1 agreement was executed in favour of Thenmozhi, whereas Ex.A2 sale deed was executed in favour of T.K.Arun, the appellant herein/plaintiff. Ex.A1 agreement has not been referred to in Ex.A2 sale deed. Therefore, Ex.A1 agreement should have been disregarded. However, the learned lower appellate Judge, comparing Exs.A1 and A2 found out the difference in the sale consideration and rendered a finding that the sale transaction was not genuine and it was fraudulent to defraud the first respondent/second defendant, who did have a prior agreement for the purchase of the property. Even a fraudulent transaction will not be void ab initio and it has to be avoided in accordance with Section 54 of the Transfer of Property Act, for which a suit has to be filed within the period of limitation. Such a suit has not been filed by the first respondent herein/second defendant. While noticing the difference in the sale consideration between Exs.A1 and A2, the learned lower appellate Judge has shown selective amnesia regarding a similar discrepancy found in Exs.B2 and B3 relied on by the first respondent/second defendant. In Ex.B2, sale consideration is noted as Rs.6,00,000/-. However, in Ex.B3 sale deed, the sale consideration mentioned is only Rs.1,40,000/-. It is also pertinent to note that the sale deed does not refer to Ex.B2 sale deed. It is also obvious from the records that in none of the documents, namely Exs.B2 and B3, the alleged lease arrangement under Ex.B1 has been referred to. Such discrepancies, found in the documents produced by the defendants, had not attracted the attention of the learned lower appellate Judge, whereas the difference between Exs.A1 and A2 regarding the sale consideration alone was noticed by the learned lower appellate Judge. 15. The under-valuation or reciting a lesser price than what was actually paid is a matter between the parties to the transaction and the Registering Authority and the Registering Authorities can take action under the appropriate law for levying penalty and collection of deficit stamp duty and deficit registration charges. The same is done based on the guideline values provided to them. If the value reflected in the document is below the guideline value, then Registering Authority shall make a probe and take appropriate action. The same is done based on the guideline values provided to them. If the value reflected in the document is below the guideline value, then Registering Authority shall make a probe and take appropriate action. If the document itself recites a previous document, which refers to a higher amount as value of the property, then the Registering Authority can take action. In this case, the document in favour of the appellant/plaintiff, namely Ex.A2 and the document in favour of the first respondent/second defendant, namely Ex.B3 do not refer any prior agreement or prior transaction showing a different value. That was the reason why, the Registering Authority, without questioning it, chose to admit the documents for registration. The same was given a twist and the learned lower appellate Judge was carried away by the mere fact that one of the documents relied on by the appellant/plaintiff recited a higher amount as sale consideration, whereas the sale deed actually recited a lesser amount as sale consideration. The resultant position is that the learned lower appellate Judge has chosen to apply two different yardsticks, one for the document relied on by the plaintiff and the other for the document relied on by the second defendant. 16. It is pertinent to note that neither the first respondent/second defendant nor the second respondent/first defendant raised any plea in their respective written statements that the first respondent/second defendant derived a valid title to the suit property under the sale deed dated 27.10.2000 registered as document No.2488/2000 on the file of the Joint Sub Registrar No.1, Cuddalore. However, without making a plea, the first respondent/second defendant was allowed to produce the said document and mark it as Ex.B3. The respondents herein/defendants in their written statements had referred to the document dated 12.6.1998 as a sale deed and they have not stated in their written statements that the same was a sale agreement and pursuant to the sale agreement, a sale deed came to be executed on 27.10.2000. Though they had referred to a sale agreement dated 15.11.1997, the said document has not seen the light of the day and the same has not been produced. The document dated 12.6.1998, which was referred to as a sale deed by the defendants in their written statements as a registered sale deed, has been produced and marked as Ex.B2. Though they had referred to a sale agreement dated 15.11.1997, the said document has not seen the light of the day and the same has not been produced. The document dated 12.6.1998, which was referred to as a sale deed by the defendants in their written statements as a registered sale deed, has been produced and marked as Ex.B2. It is obvious that the same is not a sale deed and it is only a registered sale agreement registered on the file of Joint Sub Registrar No.2, Cuddalore as document No.1061/1998. The said document was wrongly referred to as the sale deed under which, the first respondent/second defendant, was said to have derived title. 17. It is also pertinent to note that the written statements came to be filed on 24.4.2001 long after the date of Ex.B3-sale deed. Still they had not chosen to refer to the said sale deed, namely Ex.B3, in their written statements. On the other hand, they proceeded with the trial on the strength of their contention that the first respondent/second defendant purchased the property under Ex.B2 dated 12.6.1998 referring to the said document as a sale deed, whereas actually the said document is only an agreement for sale. The same was done, as rightly contended by the learned senior counsel for the appellant, in an attempt to show that the transfer of title in favour of the first respondent/second defendant had taken place even prior to the date of conveyance made to the appellant/plaintiff under Ex.A2-sale deed. Such an attempt, has no doubt, ended in utter failure. The attempt made by the respondents/defendants to show that the sale in favour of the first respondent/second defendant was preceded by an agreement for sale dated 15.11.1997 also ended in failure, as no such document was produced and on the other hand, Ex.B2 agreement dated 12.6.1998 came to be produced. 18. If the above said aspects are taken into consideration, one can come to a conclusion that though the first respondent/second defendant had entered into an agreement with the second respondent/first defendant on 12.6.1998 under Ex.B2, he was not ready and willing to make payment of the balance sale consideration and get the contract specifically enforced against the appellant/plaintiff, who happened to have purchased the property under Ex.A2-sale deed on 30.4.1999. The said aspect was not properly considered by the lower appellate court. The said aspect was not properly considered by the lower appellate court. Had it considered it properly, it would have arrived at a conclusion that the first respondent/second defendant had not fulfilled his obligation under the agreement towards the appellant/plaintiff, who had stepped into the shoes of the second respondent/first defendant on and from the moment the sale deed under Ex.A2 was executed and that he was also not ready and willing to perform his part of the agreement to claim entitlement of protection under Section 53-A of the Transfer of Property Act. 19. A proper consideration of all these aspects will go to show that the learned lower appellate Judge committed an error in holding that Ex.B3 sale deed dated executed in favour of the first respondent/second defendant during the pendency of the suit will be valid even as against the plaintiff totally misapplying the principle of lispendens found in Section 52 of the Transfer of Property Act. Similarly, the lower appellate Court has committed a grave error in holding Ex.A2 sale deed to be void and illegal, when no such plea was made by either of the defendants by way of counter claim and in the light of the contention of the defendants that it was obtained by force and misrepresentation, which makes it voidable and not void. Hence, both the substantial questions are answered in favour of the appellant and against the respondents. The resultant position shall be that the appeal succeeds and the decree of the lower appellate Court deserves to be set aside restoring the decree passed by the trial Court. In the result, the second appeal is allowed and the judgment and decree of the I Additional Subordinate Judge, Cuddalore dated 26.10.2005 made in A.S.No.26 of 2005 is set aside and the decree passed by the trial Court on 30.07.2004 in O.S.No.330 of 2000 dismissing the said suit is restored. However, there shall be no order as to costs.