JUDGMENT
S.B. Sinha, J.
1. What is the beginning point for application of the doctrine of ‘lis pendens’ is the question involved in this application.
2. By reason of a registered deed of sale dated 11-7-1986 respondent No. 6 transferred his right, title and interest in favour of Ramashankar Singh and Prabhunath Singh (Respondents Nos. 7 and 8). The said deed was registered on 14-5-1987 in terms of Section 61 of the Indian Registration Act. The respondents Nos. 7 and 8 however, entered into an agreement for sale with the petitioner on 6-4-1987.
The petitioner allegedly paid a sum of Rs. 15,000/- by way of advance out of stipulated consideration of Rs. 27,000/-. The respondents Nos. 7 and 8 thereafter executed a registered deed of sale on 20th August, 1987 which was registered on 15-9-1987.
3. An application for pre-emption was filed by the respondent No. 5 in terms of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus) Land Act, 1961 (hereinafter referred to as ‘the said Act’) on 20th August, 1987 which was registered as Ceiling Case No. 47/87-88 claiming pre-emption in respect of lands covered by the deed of sale dated 11-7-1986 aforementioned.
4. According to the petitioner, the respondents Nos. 6, 7 and 8 having been noticed in the aforementioned proceeding in their show cause, disclosed about the aforementioned agreement for sale as also execution of the said deed of sale dated 20th August, 1987 in favour of the petitioner by the respondents Nos. 7 and 8.
5. The petitioner thereafter was made a party in the said proceeding but the deed of sale executed in his favour was not questioned. In his show cause the petitioner stated that on the date of execution of the aforementioned deed of sale he was also an adjoining raiyat.
6. The said appiicaiion for pre-emption has been allowed.
Before the Courts below, as well as before us, the only question which has been raised in support of this application was that in view of the fact that the right title and interest in respect of the lands in question stood transferred in favour of the petitioner by reason of the aforementioned deed of sale dated 20th August, 1987, the application for pre-emption filed by the respondent No. 5 on the said date in respect of the deed of sale dated 11-7-1986 was not maintainable.
7. Shri Yogendra Prasad Sinha No. 1 learned counsel appearing on behalf of the petitioner in support of his contenetion relied upon a decision of this court in Raju Kumar v. The Additional Member, Board of Revenue, Bihar reported in 1984 BBCJ 890.
8. According to the learned counsel in this case the doctrine of ‘lis pendens’ will have no application.
9. It is now well known that in terms of Section 47 of the Indian Registration Act, the right, title and interest passes to the purchaser from the date of execution of the deed irrespective of the fact that the deed of sale was registered on a later date.
Reference in this connection may be made to Smt. Sudama Devi v. The Rajendra Singh reported in 1973 PLJR 534 : (AIR 1973 Pat 199).
10. This aspect of the matter has also been considered in Ganesh Prasad v. The State of Bihar reported in 1985 PLJR 254 : (AIR 1985 Pat 309).
The aforementioned decisions in Sudama Devi’s case has also been followed in Raju Kumar v. Addl. Member, Board of Revenue reported in 1984 BBCJ 890.
The said decision ex facie supports the contention of the learned counsel of the petitioner.
11. However, in India the doctrine of *Lis pendens’ is governed by the statutory provisions contained in Section 52 of the Transfer of Property Act, 1882.
12. Section 52 of the said Act reads thus :–
“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 proceeding 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 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.
Explanation :– For the purposes of this Section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.”
Explanation appended to Section 52 of the Transfer of Property Act creates a legal fiction.
It is thus clear that the ‘lis’ about the claim for pre-emption of the respondents would be deemed to be pending from the date of institution of the proceedings before the Collector under the said Act i.e. 20-8-1987.
13. It is now well known that a legal fiction created must be given its full effect.
In East End Dwelling Co. Ltd. v. Finsbury Borough Council reported in 1952 AC 109 (132-33). Lord Asquith held as follows :–
“If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative State of affairs had in fact existed, must inevitably have flowed from or accompanied it….. The statute says that you must imagine a certain State of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.”
As in terms of explanation appended to Section 52 of the Transfer of Property Act, the proceeding commence from the date on which a suit is filed, the deed of sale executed on 20th August, 1987 shall evidently be hit by the doctrine of ‘lis pendens’.
14. The decision of this court in Raju Kumar v. Addl. Member reported in 1984 BBCJ (HC) 890, has been rendered without considering the aforementioned statutory provision and thus must be held to have been rendered per-incuriam. In the said case, neither any argument was advanced as to the date from which the said doctrine would apply nor the statutory provision governing the same was brought to its notice, far less considered and discussed. The said decision is thus not a binding precedent.
15. In Md. Jainul Ansari v. Md. Khalil reported in 1990(2) PLJR 378 a Full Bench of this court held thus :–
“In A. Antulay v. R. S. Nayak reported in 1988 (I) SCC 602 : (AIR 1988 SC 1531) a Constitution Bench of the Supreme Court held that if a judgment which has been rendered by the Supreme Court, ignoring a provision of law, the same must be held to have been rendered per-incuriam and is not binding upon another bench.
In Municipal Corporation of Delhi v. Gurnam Kaur(reported in 1988 (I) SCC 101 : (AIR 1989 SC 38) the Supreme Court held as follows (at page 42 and 43 of AIR) :–
“Quotability as ‘law’ applies to the principle of a case, its ratio decidendi. The only thing in a judge’s decision binding as an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The tasks of finding the principle is fraught with difficulty because without as investigation into the facts, as in the present case, it could not be assumed whether a similar direction must’or ought to be made as as measure of a socialjustice. That being so the direction made by this court in Jamna Das case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das case was made out only with the consent of the parties but there was an interplay of various factors and the court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned.
The court no doubt made incidental observation to the Directive Principles of State Policy enshrined in Article 38(2) of the Constitution and said :–
Article 38(2) of the Constitution mandates the state to strive to minimise amongst others, the inequalities in facilities and opportunities amongst individuals. One who tries to survive by one’s own labour has to be encouraged because for want of opportunity destitution may disturb the conscience of the society. Here are persons carrying on some paltry trade in an open space in the scorching heat of Delhi sun freezing cold or torrential rain. They are being denied continuance at that place under the specious plea that they constitute an obstruction to easy access to hospitals. A little more space in the access to the hospital may be welcomed but not at the cost of someone being deprived of his very source of livelihood so as to swell the ranks of the fast growing unemployed. As far as possible this should be avoided which we propose to do by this short order.
This indeed was a very noble sentiment but incapable of being implemented in a fast growing city like the Metropolitan City of Delhi where Public streets are overcrowded and the pavement squaters create a hazard to the vehicular traffic and cause obstruction to the pedestrians on the pavement.
Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das case and to the learned Judge who agreed with him, we cannot concede that this court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachment from any public place like pavements or public streets and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P. J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th Edn. explains the concept of Sub-silentio at p. 153 in these words :
“A decision is passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of the party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour, but point B was logically involved in the facts and although the case had a specific outcome the decision is not an authority on point B. Point B is said to pass sub-silentio.
In Gerard v. Worth of Paris Ltd. (K) (1936) 2 All ER 905, the only point argued was on the question of priority of the claimant’s debt, and on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order property be made on an account standing in the name of liquidator. When, therefore, this very point was argued in a subsequent case before the court of appeal is Lancaster Motor Co. (London) Ltd. v. Beemith Ltd. (1941) I KB 675) the court held itself not bound by its previous decision. Sir Wilfrid Greane, M. R. said that he could not help thinking that the point now raised had been deliberately passed sub-silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did, nevertheless, since it was decided “without argument, without reference to the crucial words of the rule and without any citation of authority”. it was not binding and would not be followed. Precedents sub-silentio and without argument are of no moment. This rule has ever since been followed. One of the Chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided shold not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight to all. Not every passing expression of ajudge, however, eminent can be treated as an ex-cathedra statement, having the weight of authority.”
Recently again in Union of India v. Raghubir Singh, reported in 1989 (II) SCC 754 : (AIR 1989 SC 1933) after exhautive study with regard to law of precedent and treating the history thereto the Supreme Court laid down the law relating to value of precedent but stated in no uncertain terms that in appropriate case particularly when the earlier decisions of the court or the relevant provisions of the law were not brought to the notice of the Court, the judgment rendered therein shall not be binding upon a subsequent bench.
Salmond on his jurisprudence (12th Edition) at page 153 states as to when a judgment passes in sub-silentio.
In M/s. Goodyear India Ltd. v. State of Haryana analoguous cases, reported in 1990 (2) SCC 72 : (AIR 1990 SC 781) at page 96 it was held : A decision on a question which has not been argued cannot be treated as a precedent.”
16. This aspect of the matter has again been considered in Md. Nazimuddin v. State of Bihar reported in 1990 (2) PLJR 505. In this view of the matter, it must be held that the bench decision of this court in Raju Kumar’s case (supra) is not a binding precedent.
17. For the reasons aforementioned, it I must be held that as the deed of sale executed in favour of the petitioner by the respondents Nos. 7 and 8 being hit by the doctrine of ‘lis pendens’ the orders passed by the court below cannot be interfered with.
18. This application is, therefore, dismissed but without any order as to costs.
R.M. Prasad, J.
19. I agree.