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2025 DIGILAW 999 (HP)

Vinay Kumar v. Kishori Lal

2025-05-14

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. 1. The Appellant is defendant No. 2 before the trial Court. The present appeal has been filed under section 100 of the Code of Civil Procedure (for short, CPC), for assailing the judgement and decree dated 28.07.2022 passed by District Judge, Kangra, in Civil Appeal No. 23-D/XIII/2021 whereby Appeal/Cross Objections filed by Respondent No.2 and the present Appellant, respectively against the Judgement and Decree dated 30.09.2021 passed by the learned Senior Civil Judge, Dharamshala in Civil Suit No. 33/14/2011 was dismissed. 2. The plaintiff had initially filed a civil suit in the trial court under Section 10 of the Specific Relief Act, 1963, seeking a decree for specific performance of a contract dated 03.08.2009 for the sale of land owned by defendant No.1. The suit pertained to Khata No. 224, Khatauni No. 457, Khasra No. 858, measuring 0-18-00 hectares (181/362 share, i.e., 0-09-00 hectares), and Khata No. 225, Khatauni No. 458, Khasra No. 857, measuring 0-59-51 hectares (181/724 share, i.e., 0-14-88 hectares), situated in Mohal Dhann, Mauza and Tehsil Jawali, District Kangra (Himachal Pradesh), as per the Jamabandi 2003-04. The total agreed consideration was Rs. 13,02,000/- (at Rs. 2,10,000/- per kanal), with the plaintiff having already paid Rs. 6,60,000/- (including an advance of Rs. 4,10,000/- and Rs. 2,50,000/- on 10.08.2009). The remaining amount (Rs. 6,42,000/-) was to be paid within one year (02.08.2010), later extended to 02.08.2012. 3. The plaintiff claimed that possession of the land was handed over to him at the time of the agreement (03.08.2009), and he was authorized to construct buildings on the land. His wife was already a co-sharer in the property. Despite repeated requests, defendant No.1 allegedly avoided executing the sale deed. The plaintiff sent a telegraphic notice (01.08.2011) and a registered notice (01.08.2011), asking defendant No.1 to appear at the Tehsil Office, Jawali, on 02.08.2011 for the execution of the sale deed. However, defendant No.1 failed to appear, prompting the plaintiff to execute an affidavit before the Executive Magistrate, Jawali. 4. During the pendency of the suit, the trial court ordered a status quo on 05.09.2011, but defendant No.1 allegedly violated this order by executing a sale deed on 05.03.2012 in favor of defendant No.2 for a portion of the suit land (Khasra No. 857, 181/724 share, 0-14-88 hectares) for a fictitious consideration of Rs. 10,00,000/-. 4. During the pendency of the suit, the trial court ordered a status quo on 05.09.2011, but defendant No.1 allegedly violated this order by executing a sale deed on 05.03.2012 in favor of defendant No.2 for a portion of the suit land (Khasra No. 857, 181/724 share, 0-14-88 hectares) for a fictitious consideration of Rs. 10,00,000/-. The plaintiff claimed that he had already informed the Sub-Registrar about the pending suit and status quo order, but the sale deed was still registered. Consequently, the plaintiff filed an application under Order 39 Rule 2-A CPC against defendant No.1 and the Sub-Registrar. The plaintiff argued that the sale deed was a sham transaction and did not affect his rights. 5. Defendant No.1 contested the suit, denying the execution of any agreement to sell the land at Rs. 2,10,000/- per kanal. He claimed that the actual agreed rate was Rs. 6,50,000/- per kanal and that the plaintiff had fraudulently prepared undervalued agreements to evade taxes. Defendant No.1, being illiterate and poor, alleged that he was misled. He denied receiving any payment or handing over possession, asserting that he remained the owner in possession, cultivating the land seasonally. He also denied receiving any telegraphic or registered notice and claimed that the plaintiff never requested the execution of the sale deed. 6. Defendant No.2, the subsequent purchaser, claimed to be a bona fide purchaser who had no knowledge of the prior agreement. He asserted that he had verified the revenue records before purchasing the land for Rs. 10,00,000/- and took physical possession of his share. He denied any collusion with defendant No.1 and argued that the transaction was genuine. 7. The trial court framed the following issues on 16.05.2014 and 08.05.2019: 1. Whether the plaintiff is in possession of the suit land and has raised construction thereon in view of the contract of sale executed by defendant No.1 on 03.08.2009 and revised on 30.07.2010? (OPP) 2. Whether the plaintiff is entitled to specific performance of the agreement? (OPP) 3. Whether the plaintiff has been ready and willing to perform his part of the agreement? (OPP) 4. Whether the sale deed dated 05.03.2012 (executed by defendant No.1 in favor of defendant No.2) is a fictitious and sham transaction, made despite the injunction order, and has no effect on the plaintiff’s rights? (OPP) 5. Whether the plaintiff has no cause of action? (OPD) 6. (OPP) 4. Whether the sale deed dated 05.03.2012 (executed by defendant No.1 in favor of defendant No.2) is a fictitious and sham transaction, made despite the injunction order, and has no effect on the plaintiff’s rights? (OPP) 5. Whether the plaintiff has no cause of action? (OPD) 6. Whether the suit is properly valued for court fee and jurisdiction? (OPD) 7. Whether the court has jurisdiction? (OPD) 8. Whether the plaintiff suppressed material facts?(OPD) 9. Whether the suit is maintainable? (OPD) 10. Whether the suit is bad for non-joinder/mis-joinder of necessary parties? (OPD) 11. Whether the suit is time-barred? (OPD) 12. Whether the agreements dated 03.08.2009 and 30.07.2010 were fraudulently prepared? (OPD) 12-A. Whether defendant No.2 is a bona fide purchaser without notice? (OPD) 13. Relief. 8. The trial court decided issues 1 to 3 in favor of the plaintiff, holding that he was in possession, had constructed on the land, and was ready and willing to perform his part of the contract. Issue 4 was partly affirmed, holding that the sale deed in favor of defendant No.2 was not binding on the plaintiff. The remaining issues were decided against the defendants, and the suit was decreed in favor of the plaintiff. 9. Defendant No.1 filed an appeal, challenging the judgment on grounds that the agreements were fraudulent, the plaintiff had no enforceable cause of action, and the decree was based on conjectures. Defendant No.2 filed cross-objections, arguing that he was a bona fide purchaser without notice and that the trial court misinterpreted facts and law. Both the appeal and cross-objections were dismissed with costs, leading to the present appeal. 10. Heard counsels for the parties and perused the Impugned judgements. 11. The principle of lis pendens, as laid down by the Hon’ble Supreme Court in Guruswamy Nadar v. P. Lakshmi Ammal (D) by LRs. & Ors., (2008) 5 SCC 796 squarely applies to the present case. The Hon’ble Apex Court held that where a suit for specific performance is pending, any subsequent sale of the property during the pendency of the litigation is governed by the doctrine of lis pendens, and such a sale cannot override the rights of the original agreement holder. & Ors., (2008) 5 SCC 796 squarely applies to the present case. The Hon’ble Apex Court held that where a suit for specific performance is pending, any subsequent sale of the property during the pendency of the litigation is governed by the doctrine of lis pendens, and such a sale cannot override the rights of the original agreement holder. The Court further clarified that even if a subsequent purchaser claims protection under Section 19(b) of the Specific Relief Act, the doctrine of lis pendens will prevail if the sale was made after the filing of the suit. 12. Similarly, the Himachal Pradesh High Court in Raj Singh & Others v. Maharaj Mal & Others, 1996 (2) Civil Court Cases 326 held that Section 52 of the Transfer of Property Act (lis pendens) is absolutely clear—no immovable property involved in a pending suit can be transferred in a manner that affects the rights of the parties to the litigation. 13. In the present case, the plaintiff had filed the suit before defendant No.1 executed the sale deed in favor of defendant No.2 on 05.03.2012. The trial court had already granted a status quo order on 05.09.2011, which defendant No.1 violated by proceeding with the sale. Defendant No.2 failed to establish that he was a bona fide purchaser without notice of the prior agreement or the pending litigation. The sale deed (Ex. PW4/A) shows that defendant No.2 paid Rs. 10,00,000/- to defendant No.1, and defendant No.1 admitted in cross-examination that he received this consideration. While the sale deed was duly registered, it cannot be termed a sham transaction in the strictest sense. However, given the doctrine of lis pendens, the sale in favor of defendant No.2 cannot override the plaintiff’s rights under the prior agreement. 14. The trial court as well as the Appellate Court have correctly and concurrently held that the plaintiff was entitled to specific performance of the agreement dated 03.08.2009, and the subsequent sale deed in favor of defendant No.2 was subject to the outcome of the litigation. 15. In light of the above findings, the appeal filed by defendant No.1 and the cross-objections by defendant No.2 are dismissed. The judgment and decree of the trial court and the appellate court are upheld, confirming the plaintiff’s right to specific performance of the agreement to sell. 16. Pending miscellaneous applications, if any, also stand disposed of.