JUDGMENT
1. Jagir Singh, respondent 1, filed suit No. 325 of 1959 for possession of 160 bighas 8 biswas of agricultural land situate in area of village Sandharsi, tehsil Rajpura, district Patiala, and of a kacha and pacca built house, described in the plaint, against the present appellants Mew Singh and Sant Singh, in the Court of Subordinate Judge First Class, Rajpura, on 14th of July, 1959. This suit was dismissed on 31st August, 1960, but the appeal against the decree was accepted by the learned District Judge, Patiala, on 21st December, 1960. The present appellants filed an appeal in this Court against the decree of the learned District Judge, which was dismissed on 13th February, 1962. Their application for leave to appeal to the Supreme Court under Art. 133 of the Constitution was dismissed on 16th March, 1962. Jagir Singh had taken possession of the land in execution of the decree passed by the learned District Judge and on 2nd April, 1962, he made a gift of 30 Bighas of land out of the land in suit in favour of Purshotam Dass Rattan, son of Ram Lal, son of Sukhram of Sandharsi, tehsil, Rajpura, district Patiala.
The gift deed was registered on 1st October, 1962, in the office of the Sub-Registrar, Rajpura, at pages 475 to 501 in book NO. 19, Vol. 98. The appellants then filed a petition for special leave under Art. 136 of the Constitution in the Supreme Court of India, which was granted on 9th August, 1962. The donee, Purshotam Dass Rattan, was not made a party to the appeal, The present appellants and Jagir Singh and other respondents in the Supreme Court appeal, entered into a compromise on 28th July, 1965, in accordance with which the appeal was decided by the Supreme Court. In para 10 of the petition of compromise the terms were stated as under:-
“(i) That the appeal of the appellants be allowed against Jagir Singh respondent No. 1 and the judgment and decree of the High Court of Punjab in R. S. A. No. 32 of 1961 and of the District Judge, Patiala, in C. A. No. 210 of 1960 be set aside and suit No. 325 of 1959 of respondent No. 1 dismissed and the appellants and respondent No. 1 be left to bear their own costs.
(ii) That the appeal against respondents Nos. 2 to 5 be dismissed.
(iii) That Jagir Singh respondent No. 1 took possession of the land in suit in execution of the decree of the District Judge and he has given up and handed over the possession of the land to the appellants, and the appellants will be entitled to apply for restitution and for taking back the possession in the trial Court by virtue of the order of this Hon’ble Court in terms of this compromise.
(iv) That at the time of the grant of special leave to appeal on 9th of August, 1962, by the Supreme Court, respondent No. 1 appeared and the petition for stay of the appellants was dismissed on 9th of August, 1962. That pendent lite, Jagir Singh respondent No. 1 made a fictitious gift of 30 Bighas of land, out of the land in suit by a gift deed dated 24th April, 1962, registered on 1st October, 1962, with the Sub Registrar, Rajpura, at pages No. 475 to 501 in book No. 19, Volume No. 98 in favour of Purshotam Das Rattan son of Ramlal son of Sukhram of Sandharsi, tehsil Rajpura, district Patiala. The appellants will be entitled to take possession of that land and respondent No. 1 has no claim to it as that gift to void.
(v) That the appellants are entitled to withdraw the security amount of Rs. 2500/- deposited as to costs of the respondents in this appeal.
(iv) That respondent No. 1 admits that the gift of the land by Smt. Nihali in favour of the appellants dated 2nd May, 1958, is valid and the appellants are entitled to its possession and ownership.”
The petition for permission to compromise was heard and decided on 27th October, 1965 by the Supreme Court and on the agreement of the counsel for the parties Clause (iv) of paragraph 10 of the petition of compromise was ordered to be deleted. A decree was passed in accordance with the terms of he compromise contained in Cls. (i), (ii), (iii), (v) and (vi) of paragraph 10 of the petition for recording the compromise. Jagir Singh gave possession of the land which was in his possession to the present appellants but Purshotam Das Rattan did not deliver possession of the land, which he had obtained by way of gift, to the appellants, who, therefore, filed an application under Section 144 of the Code of Civil Procedure for restitution against Jagir Singh and others including Purshotam Das Rattan. This application was contested by Purshotam Das Rattan and the application of the appellants for restitution qua that land was dismissed. The appellants then filed an appeal in the Court of the District Judge, Patiala, which was also dismissed on 3rd January 1968, against which the appellants filed the present appeal in this Court.
2. The learned counsel for the appellants the contended that Purshotam Das Rattan respondent is bound by the decree passed against his transferor, namely, Jagir Singh, and as the suit of Jagir Singh against the appellants has been dismissed by the decree passed by the Supreme Court in terms of the compromise, Purshotam Das Rattan is liable to deliver back the possession of 30 Bighas of land to them. Reliance is placed on Order 22, Rule 10 and 11 of the Code of Civil Procedure and the terms of Section 52 of the Transfer of Property Act. I regret my inability to accept this submission of the learned counsel.
In the first place, no proceedings were pending on 2nd April, 1962, when the gift of 30 Bighas of land was made by Jagir Singh in favour of Purshotam Das Rattan and that transfer is not hit by the principle of lis pendens. The remedy under Art. 136 of the Constitution is an extraordinary remedy and is not in the ordinary line of appeal. It cannot, therefore, be said that after the Supreme Court granted leave to appeal to the appellants on 9th August, 1962, the proceedings became pending and were in continuation of the original suit. Secondly, the appeal before the Supreme Court was not decided on merits but on a compromise between the parties to the appeal. Purshotam Das Rattan was admittedly not a party to that appeal. Purshotam Das Rattan was admittedly not a party to that appeal. Clause (vi) of para 10 of the petition of compromise expressly made a mention of the gift of 30 Bighas of land in favour of Purshotam Das Rattan and it was stated that the gift was fictitious and the appellants were entitled to obtain possession of that land.
This clause was deleted by an amended petition and the result of the deletion of that clause, in my opinion, is that the appellants recognised that they were not entitled to get back the possession of that land from Purshotam Das Rattan as he was not a party to the appeal and in his absence it could not be held that the give in his favour was fictitious. The appellants also recognised that Jagir Singh was not in a position to deliver back the possession to them of 30 Bighas of land which he had gifted in favour of Purshotam Das Rattan. For these reasons, the appellants cannot now seek the assistance of the Court to get possession of 30 Bighas of land from Purshotam Das Rattan. There is no doubt that the transferee during the pendency of a suit or other proceeding is bound by the result thereof but that principle cannot be made applicable to the facts of this case in view of the insertion of Clause (iv) in paragraph 1- of the petition of compromise and then its deletion, which were conscious acts and amounted to not disturbing the rights of Purshotam Das Rattan. I, therefore, find no force in this appeal and affirm the decrees passed by the learned lower Courts. This appeal is, therefore, dismissed but without any order as to costs.
3. Appeal dismissed.