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2024 DIGILAW 705 (CHH)

Laxmi Devi W/o Shri Girdhari Lal Sharma v. Purshottam Chandrakar S/o Shri Ramlal Chandrakar

2024-10-16

RAKESH MOHAN PANDEY

body2024
JUDGMENT : (1) Defendants No. 4 and 5 have assailed the judgment and decree passed by the Additional District Judge (Fast Track Court), Dhamtari in Civil Suit No. 24-A/07 dated 08.04.2010 whereby the civil suit filed by the plaintiff was decreed and sale-deeds executed by the plaintiff in favor of defendant No. 1 and subsequent sale-deeds executed by defendant No. 1 in favor of defendants No. 4 & 5 were canceled. (2) Facts of the present case are that the plaintiff was the owner of suit properties bearing S. No. 127/2 ad-measuring 0.87 acre and 127/3 ad-measuring 1 acre situated at Village Kurud, Tehsil-Kurud, District-Dhamtari. He executed registered sale deeds of both plots in favour of defendant No. 1 on 19.04.1996 and 02.08.1996 in consideration of Rs. 46,000/- and Rs. 50,000/-, respectively. The sale deeds are exhibits P/1 and P/2. The plaintiff filed a civil suit claiming therein relief of cancellation of sale-deeds dated 19.04.1996 and 02.08.1996 executed in favor of defendant No. 1 and in the alternative, refund of Rs. 96,000/-with interest and till the same is handed over, compensation of Rs. 500/- per day. He also sought relief of permanent injunction restraining defendant No. 1 from alienating the property. The civil suit was filed on the premise that the sale consideration of Rs. 96,000/- was not paid to the plaintiff. It is pleaded that earlier, one cheque bearing number 9633006 of Rs. 50,000/- with a promise to pay the remaining Rs. 46,000/- later, was handed over to the plaintiff but when that cheque was presented to the bank, it got dishonoured. After that, defendant No. 1 promised to make payment in cash and the cheque was returned to defendant No. 1. It is further pleaded that defendant No. 1 failed to make payment, therefore, a civil suit was filed for cancellation of sale deeds. During the pendency of the civil suit, defendant No.1 alienated the property through two sale deeds dated 27.03.2004 and 29.03.2004 in favor of defendants No. 4 and 5, who are the appellants herein. Defendant No. 1 filed a written statement and denied the plaint averments. A specific stand was taken by defendant No. 1 that registered sale deeds were executed in his favour by the plaintiff after receipt of the entire consideration and the same is specifically stated in the sale deeds. Defendant No. 1 filed a written statement and denied the plaint averments. A specific stand was taken by defendant No. 1 that registered sale deeds were executed in his favour by the plaintiff after receipt of the entire consideration and the same is specifically stated in the sale deeds. Defendant No. 1 further pleaded that the sale deeds were executed in the presence of witnesses and the suit property got mutated in his name. Defendant No. 1 cited the revenue proceedings and orders passed by the revenue authorities. With regard to Cheque No. 9633006, defendant No. 3, i.e. Electricity Department filed a written statement and denied the plaint averments. Defendants No. 4 and 5 filed their written statement and took a plea that they were bona-fide purchasers. It is pleaded that the suit property was recorded in the name of defendant No. 1 and in the revenue records, the name of defendant No. 1 was entered and he was the ostensible owner of the property, therefore they purchased the property bonafidely after payment of sale consideration. The trial Court framed issues and held that:- (i) sale-deeds dated 19.04.1996 and 02.08.1996 were executed without consideration on account of mutual consent and faith; (ii) no consideration was received by the plaintiff while executing the registered sale-deeds in favor of defendant No. 1 ; (iii) a cheque dated 05.03.1997 was given against part of consideration to the plaintiff by defendant No. 1; (iv) sale-deeds dated 19.04.1996 and 02.08.1996 are null & void; (v) defendant No. 1 is not entitled to get the electricity connection from defendant No. 3; (vi) defendant No. 1 failed to prove that cheque of Rs. 50,000/- was given to the plaintiff against the loan; (vii) defendants No. 4 & 5 are not owners of the suit property as defendant No. 1 failed to prove that possession was handed over to them. The Trial Court decreed the suit and cancelled the sale deeds dated 19.04.1996, 02.08.1996, 27.03.2004 and 29.03.2004 and a decree of permanent injunction in favor of the plaintiff along with an order of demolition was also granted if defendants No. 1, 4 and 5 fail to handover the vacant possession of the plots. The present appeal has been preferred by subsequent purchasers i.e. defendants No. 4 & 5 before this Court. (3) Mr. The present appeal has been preferred by subsequent purchasers i.e. defendants No. 4 & 5 before this Court. (3) Mr. B. P. Sharma, learned counsel appearing on behalf of the appellants submits that the learned trial Court exceeded its jurisdiction while granting relief of demolition of superstructure, if any, whereas no such relief was sought by the plaintiff in the plaint. He further submits that two sale deeds were executed by the plaintiff in favor of defendant No. 1 after receipt of the entire consideration. He also submits that the sale deeds cannot be cancelled on the ground that the consideration is not passed from vendor to vendee. He has placed reliance on the judgment passed by the Hon’ble Supreme Court rendered in the matter of Dahiben Versus Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal representatives & Ors. reported in (2020) 7 SCC 366 . He argues that defendants No. 4 and 5 have the right to raise all defences which are available to defendant No. 1. He referred to Order 22 Rule 4(2) of CPC to buttress his arguments. In that regard, he placed reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Vidyawati Versus Man Mohan & Ors. Reported in (1995) 5 SCC 431 . He argues that the subsequent purchasers entered into the shoes of defendant No. 1 on the date they purchased the property; therefore, they have the right to take all defences including the defence that the suit was not maintainable. In this regard, he has placed reliance on the judgments rendered by the Hon’ble Supreme Court in the matters of Thomson Press (India) Limited Versus Nanak Builders & Investors Private Limited & Ors. reported in (2013) 5 SCC 397 and Chandra Bai (dead) Through Legal Representatives Versus Khandalwal Vipra Vidyalaya Samiti & Ors. reported in (2016) 12 SCC 534 . He further argues that consideration was passed to the plaintiff by defendant No. 1 and the plaintiff failed to prove that the registered sale deeds were executed without payment of consideration. He also argues that registered documents were signed by the plaintiff and defendant No. 1 in the presence of the Sub-Registrar and Section 54 of the Transfer of Property Act, 1882 confers the right in favour of the purchaser. He also argues that registered documents were signed by the plaintiff and defendant No. 1 in the presence of the Sub-Registrar and Section 54 of the Transfer of Property Act, 1882 confers the right in favour of the purchaser. He contends that if the consideration was not paid to the plaintiff, on this ground alone, the suit cannot be decreed and the plaintiff ought to have filed a suit for recovery of consideration. He further contends that application under Order 1 Rule 10 (2) of CPC was moved by the plaintiff himself to implead defendants No. 4 & 5 on 14.12.2006 and the same was allowed by the learned trial Court, therefore, the plaintiff cannot take a stand that the appeal preferred by defendants No. 4 & 5 is not maintainable. (4) On the other hand, Mr. Anurag Dayal Shrivastava, counsel appearing on behalf of plaintiff/respondent No. 1 would oppose. He submits that there was a transaction between the plaintiff and defendant No. 1 and two sale deeds were executed for sale consideration of Rs. 96,000/- on 19.04.1996 and 02.08.1996. The consideration was not paid, therefore, a suit was filed by the plaintiff for cancellation of sale deeds and during the pendency of the civil suit, defendant No. 1 alienated the property in favor of defendants No. 4 & 5. He further submits that defendants No. 4 & 5 while filing their written statement took the plea of bona-fide purchasers and no other defense was taken by them. He also submits that original sale deeds which were executed between the plaintiff and defendant No. 1 have been canceled by the trial Court, therefore, subsequent sale deeds cannot stand on their own legs in the absence of foundation. He argues that defendant No. 1, who purchased the property through registered sale deeds dated 19.04.1996 and 02.08.1996 alienated the property during the pendency of the civil suit and after passing of decree against him, he failed to avoid the judgment and decree by filing an appeal before this Court, therefore, defendants No. 4 and 5, who are subsequent purchasers cannot take the defence(s), which were available to defendant No. 1 alone. He further argues that according to Order 22 Rule 10 of CPC, a subsequent purchaser cannot continue the suit without leave of the Court. He further argues that according to Order 22 Rule 10 of CPC, a subsequent purchaser cannot continue the suit without leave of the Court. He also argues that the issue of payment of consideration to the plaintiff was a dispute between the plaintiff and defendant No. 1 because at the time of execution of sale-deeds (exhibits P/1 & P/2), defendants No. 4 & 5 were not present, therefore they cannot throw light on that issue. He contends that defendants No. 4 & 5 failed to take leave of the Court while filing this appeal, thus they are bound by the decree passed by the learned trial Court against defendant No. 1. It is submitted that against defendants No. 4 and 5 the doctrine of “lis pendens” will attract in its full force. In support thereof, he has placed reliance on the judgments rendered by the Hon’ble Supreme Court in the matters of Jaskirat Datwani Versus Vidyawati & Ors reported in AIR 2002 SC 2180 and Dhurandhar Prasad Singh Versus Jai Prakash University & Ors. reported in AIR 2001 SCC 2552. (5) Learned State counsel supports the judgment and decree passed by the learned trial Court. (6) I have heard learned counsel for the parties and perused the record with utmost circumspection. (7) Admittedly, the plaintiff sold two plots bearing S. No. 127/2 ad-measuring 0.87 acres and 127/3 ad-measuring 1 acre situated at Village Kurud, Tehsil- Kurud, District- Dhamtari to defendant No. 1 on 19.04.1996 and 02.08.1996. As the alleged consideration was not passed, therefore, the plaintiff filed a civil suit for the cancellation of sale deeds. Defendant No. 1 contested the case by filing a written statement and took a plea that the sale deeds were executed and right got conferred in his favor and the issue of payment of consideration amount cannot be made grounds for cancellation of sale-deeds. During the pendency of the civil suit, defendant No. 1 executed two sale deeds in favor of defendants No. 4 & 5 on 27.03.2004 and 29.03.2004 after receiving the consideration amount. Defendants No. 4 & 5 were impleaded as the defendants by the plaintiff himself and an application under Order 1 Rule 10 of CPC was moved in this regard. The Trial Court after appreciating oral and as well as documentary evidence, decreed the suit. Defendants No. 4 & 5 were impleaded as the defendants by the plaintiff himself and an application under Order 1 Rule 10 of CPC was moved in this regard. The Trial Court after appreciating oral and as well as documentary evidence, decreed the suit. Defendant No. 1 has not preferred any appeal against the impugned judgment and decree and the present appeal has been preferred by the subsequent purchasers i.e. defendants No. 4 & 5. Questions for consideration before this Court would be:- (i) Whether the appeal preferred by defendants No. 4 & 5 is competent as no leave was taken by them according to provisions of Order 22 Rule 10 of CPC? (ii) Whether defendants No. 4 & 5 have the right to take all defences which were available to defendant No. 1? (8) Order 22 Rule 10 of CPC reads as under:- 10. Procedure in case of assignment before final order in suit. -(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1). (9) In the matter of Chandra Bai (dead) Through Legal Representatives Versus Khandalwal Vipra Vidyalaya Samiti & Ors, the Division bench of the High Court of Rajasthan held that an assignee on being arrayed as a party, steps into the shoes of the transferor to take part in the proceedings with the leave of the Court seized of the lis. Relevant para of the judgment is reproduced herein below:- 17. On appreciation of the arguments and the law cited at the bar, we find that while deciding the application, the Court has to exercise the discretion judiciously and it should not result into miscarriage of justice. The assignee unless brought on record, cannot protect his interest, therefore, is required to be arrayed as party in the proceedings during the currency of suit or subsequent proceedings which includes even execution of the proceedings. The assignee unless brought on record, cannot protect his interest, therefore, is required to be arrayed as party in the proceedings during the currency of suit or subsequent proceedings which includes even execution of the proceedings. It is settled law that an assignee on being arrayed as party, steps into the shoes of the transferor to take part in the proceedings with the leave of the Court ceased of the lis. The learned single Judge has, in the course of the judgment, made such assertions while allowing the application relying upon various Judgments. We, therefore, uphold the order of the learned single Judge. The judgment, under appeal, does not suffer from any illegality and is upheld. The appeal being devoid of merit is dismissed. (10) The matter of Chandra Bai (supra) has been affirmed by the Apex Court in (2016) 12 SCC 534 . (11) In the matter of Jaskirat Datwani (supra), the Hon’ble Supreme Court while dealing with Order 22 Rule 10 of the CPC held in the case of the sale of property by the defendant during the pendency of the suit, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by the decree and transferor will continue to be bound by the decree or order which has been passed in the suit, particularly, when he or she has knowledge of the pending suit. Para 5 of the aforesaid judgment is reproduced herein below:- 5. It has been held by this Court in the case of Dhurandhar Prasad Singh v. Jai Prakash University and ors, reported in JT 2001 (5) SC 578, that Order 22, Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit. It is held that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of suit is devolved upon another during its pendency. It is held that such a suit may be continued with the leave of the Court by or against the person upon whom such interest has devolved. But, if no such step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by the decree. It is held that such a suit may be continued with the leave of the Court by or against the person upon whom such interest has devolved. But, if no such step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by the decree. Thus the Appellant would continue to be bound by the decree or order which has been passed in the suit, particularly when she had knowledge of the proceedings. (12) In the matter of Dhurandhar Prasad Singh (supra), the Hon’ble Supreme Court has held that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit is devolved upon another during its pendency but such a suit may be continued with the leave of the Court by or against the person upon whom the interest has devolved. Paras 6, 7 and 25 of the aforementioned judgment are reproduced herein below:- 6. In order to appreciate the points involved, it would be necessary to refer to the provisions of Order 22 of the Code, Rules 3 and 4 where of prescribe procedure in case of devolution of interest on the death of a party to a suit. Under these Rules, if a party dies and right to sue survives, the Court on an application made in that behalf is required to substitute legal representatives of the deceased party for proceeding with a suit but if such an application is not filed within the time prescribed by law, the suit shall abate so far as the deceased party is concerned. Rule 7 deals with the case of creation of an interest in a husband on marriage and Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit other than those referred to in the foregoing Rules and is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of suit is devolved upon another during its pendency but such a suit may be continued with the leave of the Court by or against the person upon whom such interest has devolved. But, if no such a step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute or colluded with the adversary resulting in decision adverse to the party upon whom interest had devolved. The legislature while enacting Rules 3, 4 and 10 has made clearcut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing legal representatives of a deceased party is filed within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement under Rule 9 on the grounds postulated therein. In cases covered by Rule 10, the legislature has not prescribed any such procedure in the event of failure to apply for leave of the Court to continue the proceeding by or against the person upon whom interest has devolved during the pendency of a suit which shows that the legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record. 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. 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. Karab-ud-Din, (1898) ILR 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 devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath v. Rookea Begum, (1851-59) 7 Moo Ind App 323, a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings. 25. Plain language of Rule 10 referred to above does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of plaintiff has devolved. Likewise, in a case where interest of defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the Court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of party to the suit has devolved during its pendency, then there may be preposterous results as such a party might not be knowing about the litigation and consequently not feasible for him to apply for leave and if a duty is cast upon him then in such in eventuality he would be bound by the decree even in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for such a leave so that his interest may be properly represented as the original party, if it ceased to have an interest in the subject matter of dispute by virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by colluding with the other side. If the submission of Shri Mishra is accepted, a party upon whom interest has devolved, upon his failure to apply for leave, would be deprived from challenging correctness of the decree by filing a properly constituted suit on the ground that the original party having lost interest in the subject of dispute, did not properly prosecute or defend the litigation or, in doing so, colluded with the adversary. Any other party, in our view, may also seek leave as, for example, where plaintiff filed a suit for partition and during its pendency he gifted, away his undivided interest in the Mitakshara Coparcenary in favour of the contesting defendant, in that event the contesting defendant upon whom the interest of the original plaintiff has devolved has no cause of action to prosecute the suit, but if there is any other co-sharer who is supporting the plaintiff, may have a cause of action to continue with the suit by getting himself transposed to the category of plaintiff as it is well settled that in a partition suit every defendant is plaintiff, provided he has cause of action for seeking partition. Thus, we do not find any substance in this submission of learned counsel appearing on behalf of the appellant and hold that prayer for leave can be made not only by the person upon whom interest has devolved, but also by the plaintiff or any other party or person interested. Thus, we do not find any substance in this submission of learned counsel appearing on behalf of the appellant and hold that prayer for leave can be made not only by the person upon whom interest has devolved, but also by the plaintiff or any other party or person interested. (13) The law laid down by the Apex Court in the above-discussed cases would make it clear that if during the pendency of a suit, the suit property is assigned, created or devolved in favour of any person, in such a situation, the suit may be continued by or against the person upon whom such interest has devolved with the leave of the Court. If such a person fails to apply for leave, would be deprived of challenging the correctness of the decree by filing a properly constituted suit on the ground that the original party having lost interest in the subject of dispute, did not properly prosecute or defend the litigation or, in doing so, colluded with the adversary. Thus such a person would continue to be bound by the decree or order which has been passed in the suit, particularly when he has knowledge of the proceedings. (14) In the present case, defendants No. 4 & 5 upon whom the interest devolved during the pendency of the suit, by execution of two sale-deeds by defendant No. 1 brought them to the status of assignees and they should have taken leave from the concerned Court to defend the case on all issues. Though defendants No. 4 & 5 were impleaded by moving an application under Order 1 Rule 10 of CPC, no application was moved for grant of leave by defendants no. 4 and 5 and they participated in the proceeding before the court below. Even at the time of filing the present appeal before this Court, they failed to move applications seeking leave under Order 22 Rule 10 of CPC. The contention raised by Mr. Sharma regarding payment of sale consideration; initially, there was a transaction between the plaintiff and defendant No. 1 and whether the consideration was paid or not paid, it was a dispute between them. Defendants No. 4 & 5 are the subsequent purchasers, who purchased the plots from defendant No. 1. The contention raised by Mr. Sharma regarding payment of sale consideration; initially, there was a transaction between the plaintiff and defendant No. 1 and whether the consideration was paid or not paid, it was a dispute between them. Defendants No. 4 & 5 are the subsequent purchasers, who purchased the plots from defendant No. 1. The contention regarding the maintainability of the civil suit according to judgments rendered by Apex Court in Dahiben (supra) and other subsequent judgments could have been raised by the defendant No. 1 alone before this Court whereas this appeal has been preferred by defendants No. 4 & 5 and such defence cannot be taken by them. (15) In the matter of Dahiben (supra), the Apex Court in paras 29.7 and 29.9 held as under:- 29.7 Section 54 of the Transfer of Property Act, 1882 provides as under: "54. "Sale defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised." The definition of "sale" indicates that there must be a transfer of ownership from one person to another i.e., transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of ownership has to be made for a "price paid or promised or part-paid and part-promised". Price thus constitutes an essential ingredient of the transaction of sale. 29.9 In view of the law laid down by this Court, even if the averments of the plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the sale deed. The plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of registered sale deed. We find that the suit filed by the plaintiffs is vexatious, merit-less, and does not disclose a right to sue. The plaint is liable to be rejected under Order 7 Rule 11(a). It is an admitted fact that the sale deed cannot be cancelled on the grounds of non-payment of the consideration amount. We find that the suit filed by the plaintiffs is vexatious, merit-less, and does not disclose a right to sue. The plaint is liable to be rejected under Order 7 Rule 11(a). It is an admitted fact that the sale deed cannot be cancelled on the grounds of non-payment of the consideration amount. Defendant No. 1 should have approached this Court assailing the judgment and decree passed by the learned trial Court against him. Defendants No. 4 and 5 have shown themselves bonafide purchasers from defendant No. 1 but when sale deeds executed in favor of defendant No. 1 have been cancelled and it attained finality then subsequent purchasers, in my opinion, cannot defend sale deeds executed in their favor. (16) With regard to the contention made by Mr. Sharma that after the purchase of property, defendants No. 4 & 5 have entered into the shoes of defendant No. 1, the Division Bench of High Court of Bombay in the matter of Nitin Gandhi & Anr. Versus Dinyar Pheroz Dubash & ors. reported in 2014 LawSuit (Bom) 1822 in paras 35 and 40 held as under:- 35. The provision contained in section 19(b) of the said Act which affords protection to a subsequent purchaser who purchases the contracted property in good faith and for value without notice of the original contract, is in the nature of an exception to the general rule. Therefore, it is a settled position in law that the onus of proof of good faith is upon the subsequent purchaser who takes a plea that he is an innocent or bona fide purchaser for value and without notice of the original contract. In the case of Shankarlal Narayandas Mundade v The New Mofussil Co. Therefore, it is a settled position in law that the onus of proof of good faith is upon the subsequent purchaser who takes a plea that he is an innocent or bona fide purchaser for value and without notice of the original contract. In the case of Shankarlal Narayandas Mundade v The New Mofussil Co. Ltd. & ors, 1946 AIR(PC) 97, in the context of section 27 of the Specific Relief Act, 1877, which corresponds to section 19 of the Specific Relief Act 1963, the Privy Council, by relying upon its earlier authority in the case of Bhup Narain Singh V. Gokul Chand Mahton, 1934 AIR(PC) 68 has held thus: "Their Lordships have found it unnecessary to examine the evidence which was called on behalf of the plaintiff to show that these defendants in fact had notice of the earlier contract, since a decision of this Board is clear authority for the proposition that the burden of proving good faith and lack of notice lay upon the defendants" 40. In a suit for specific performance, when a subsequent purchaser is sought to be impleaded, the true test to be applied by the court is to determine whether the purchaser claims title under the vendor of the plaintiff or whether he claims a title independent of or adverse to the title of the vendor. There are decisions, both of the Supreme Court as also this court which take view that impleadment is permissible where the party which is proposed to be joined claims through the vendor and under a subsequent agreement. This is to be distinguished from a case where title adverse to or independent of the vendor is sought to be asserted. In the former case, it is but necessary to join the subsequent purchaser in order to ensure that when a decree is passed by the court at the trial of the suit, the subsequent purchaser can be directed to join in completing the title which may be required to be conferred upon the plaintiff. (17) Undisputedly, defendants No. 4 & 5 are bona-fide purchasers and on the date of execution of sale deeds in their favor, they had no knowledge of the pending litigation. The suit property was recorded in the name of defendant No. 1 in revenue records and he was the ostensible owner of the property. (17) Undisputedly, defendants No. 4 & 5 are bona-fide purchasers and on the date of execution of sale deeds in their favor, they had no knowledge of the pending litigation. The suit property was recorded in the name of defendant No. 1 in revenue records and he was the ostensible owner of the property. Though defendants No. 4 & 5 purchased the property through registered sale deeds after payment of consideration, they failed to take leave either before the trial Court or before this Court while filing an appeal according to provisions of Order 22 Rule 10 of CPC, therefore, the defences which were available to the defendant No. 1 cannot be taken by defendants No. 4 & 5. With regard to bonafide purchasers, the Hon’ble Supreme Court recently in the matter of Shingara Singh Versus Daljit Singh & Anr. passed in Civil Appeal No. 5919 of 2023 held that once it has been held that the transaction is illegal due to the doctrine of lis pendens, the defence of respondents that they are bonafide purchasers for valuable consideration and thus, entitled to protection under Section 41 of Transfer of Property Act, 1882 is liable to rejected. Para 14 of the aforementioned judgment has been reproduced herein below:- 14. In a recent judgment of this Court in Chander Bhan (D) through Lr. Sher Singh vs. Mukhtiar Singh & Ors. it is observed, "once it has been held that the transactions executed by the respondents are illegal due to the doctrine of lis pendens the defence of the respondents 1-2 that they are bona fide purchasers for valuable consideration and thus, entitled to protection under Section 41 of the Transfer of Property Act, 1882 is liable to be rejected." (18) In Vidyawati (supra), it was held by the Hon’ble Supreme Court that when the petitioner was impleaded as a party-defendant, all rights under Order 22, Rule 4(2) and defences available to the deceased defendant become available to her. In addition, if the petitioner had any independent right, title or interest in the property then she had to get herself impleaded in the suit as a party defendant in which event she could set up her own independent right, title and interest, to resist the claim made by the plaintiff or challenge the decree that may be passed in the suit. Thus, the issue involved in the present case is distinguishable from the facts of the aforesaid case. (19) In Thomson Press (India) Limited (supra), the doctrine of lis pendens has been dealt with which does not annul transaction/transfer made during the pendency of the suit rather it merely makes such transfer subject to rights of the parties to the suit. It was a case of specific performance of contract wherein the Hon’ble Supreme Court held that under Order 1 Rule 10 of CPC a subsequent purchaser cannot be added as a party to the suit since no one other than parties to the agreement are necessary and proper parties to a suit for specific performance of contract however under Order 22 Rule 10 of the CPC in cases of assignment, creation or devolution of any interest during the pendency of the suit, the suit may, with the leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved, therefore, the issue involved in the present case is not dealt with by the aforesaid judgment. (20) Taking into consideration the above-discussed facts and the law laid down by the Hon’ble Supreme Court and High Courts, in the opinion of this Court, no case is made out for indulgence. (21) Consequently, this appeal fails and is hereby dismissed. No cost(s). (22) A decree be drawn accordingly.