R.S.A.No. 1224 of 2005 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1224 of 2005 (O&M)
Date of decision: 2.12.2009
Parveen Kumar and others
......Appellants
Versus
Smt.Baljinder Kaur and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Arun Jain, Sr.Advocate with
Mr. Amit Jain, Advocate,
Mr.Vishal Goel, Advocate,
for the appellants.
Mr.R.S.Dhaliwal, Advocate,
for respondents No.1 and 2.
Mr.Roopak Bansal, Advocate,
for respondents No.5 to 8.
****
SABINA, J.
Plaintiffs- Baljinder Kaur and Balraj Singh had filed a suit
for possession by way of specific performance of agreement to sell
dated 12.10.1990, which was dismissed by the Additional Civil
Judge (Sr.Divn.), Jagadhari vide judgment and decree dated
28.1.2002. In appeal, the said judgment and decree were set aside
by the Additional District Judge, Jagadhari vide judgment and
decree dated 17.1.2005 and the suit of the plaintiffs was decreed
R.S.A.No. 1224 of 2005 (O&M) 2
with costs. Hence, the present appeal by the defendants.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 and 3 of its judgment, are as under:-
“2. Defendant No.1 was owner of the suit land
measuring 130K-5M situated within the revenue
estate of village Safeelpur as detailed and
described in the head note of the plaint. As per
case of the plaintiffs, he(defendant No.1) agreed to
sell the same to Baljinder Kaur plaintiff no.1 through
her brother Balraj Singh, plaintiff no.2, at the rate of
Rs.17,500/- per acre vide agreement to sell dated
12.1.90 Ex.P1. Further case of the plaintiffs is that
Rs.50,000/- were paid as earnest money and
remaining amount was to be paid at the time of
execution and registration of the sale deed which
was to take place on or before 28.2.91. It was
stipulated in the agreement that in the event of
failure of the defendant no.1 to execute and to get
the sale deed registered within the sitpulated period,
plaintiff no.1 will have the option to get the same
executed and registered through the process of the
court. The agreement was signed by defendant
no.1 and by plaintiff no.2 on behalf of plaintiff no.1
and was attested by two attesting witnesses. The
R.S.A.No. 1224 of 2005 (O&M) 3earnest money was given to the defendant no.1
against receipt Ex.P2. On 28.2.91 plaintiff No.1
went to the office of Sub Registrar, Bilaspur to get
the sale deed executed and registered with money
to pay the balance sale price and to meet the
expenses of execution and registration of the sale
deed. She remained present in the premises of the
office of Sub Registrar from 9.00 A.M. To 3.00 P.M
but defendant no.1 did not turn up to get the sale
deed executed. Plaintiff No.1 got her presence
recorded before the Sub Registrar by executing an
affidavit. She has always been ready and willing to
perform her part of the agreement and is still ready
and willing to get the sale deed executed and
registered on payment of balance sale
consideration. With these averments plaintiffs
brought the present suit for possession of the suit
land by way of specific performance of the
agreement.
3. Defendant No.1 appeared and denied the
claim of the plaintiffs in toto. He denied that he had
entered into an agreement with plaintiff no.1 through
her brother to sell the suit land. He even denied the
receipt of Rs.50,000/- as earnest money. He
R.S.A.No. 1224 of 2005 (O&M) 4pleaded that on 12.10.90 he had visited Jagadhri to
execute a general power of attorney in favour of one
Suresh Kumar regarding suit property. Said power
of attorney was got scribed from a deed writer.
When his signatures were obtained by the deed
writer on said power of attorney, his signatures were
obtained by the deed writer on some other papers
also. He later came to known that the deed writer
had also obtained his signatures on the agreement
to sell Ex.P1 by playing fraud in collusion with the
plaintiffs. Whereas no such agreement was
executed byhim nor he had received any amount as
earnest money. He further pleaded that several
trees of the value of more than Rs.2 lacs were
standing on the suit land and therefore, there was
no question of selling the land at the meagre price
of Rs.17,500/- per acre. With these averments he
sought dismissal of the suit.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
1. Whether the defendant is the owner in
possession of the land in dispute?OPP.
2. Whether the defendant had contracted to sell
the land in dispute in favour of the plaintiff No.1
R.S.A.No. 1224 of 2005 (O&M) 5vide agreement dated 12.10.1990?OPP.
3. Whether the defendant received from plaintiff No.1 a
sum of Rs.50,000/- as earnest money in pursuance of
the agreement to sell dated 12.10.1990?OPP.
4. If issues no.1 and 2 are proved in affirmative,
whether the plaintiffs are entitled to possession of the
suit land by way of specific performance of the
contractor of sale dated 12.10.1990? OPP.
5. Whether the agreement dated 12.10.1990 is a
result of fraud and misrepresentation as alleged by
defendant in para no.2 of written statement?OPD.
6. Whether the plaintiff has no locus standi to file
the present suit?OPD.
7. Whether the suit of the plaintiffs is not
maintainable in the present form?OPD.
8. Whether the agreement dated 12.10.1990 is not
legally enforceable in the eyes of law?OPD.
9. Whether the defendant is entitled to special
costs under Section 35-A CPC?OPD.
Vide orders dated 7.10.1986 and 19.7.2000, following
additional issues were framed:-
9-A. Whether defendants no.2 and 3 are bonafide
purchasers and if so, its effect?OPD-2 & 3.
9-B. Whether the defendants are bonafide
purchasers with consideration in respect of suit
R.S.A.No. 1224 of 2005 (O&M) 6land?OPD.
9-C. Whether the possession of the defendants is
protected under Section 53(A) of Transfer of
Property Act, as alleged?OPD.
10.Relief.”
After hearing learned counsel for the parties, I am of the
opinion that the present appeal deserves to be dismissed.
Baljinder Kaur and Balraj Singh had filed a suit for
possession by way of specific performance of agreement to sell
dated 12.10.1990. Learned trial Court decreed the suit of the
plaintiffs for recovery of the earnest money. In appeal filed by the
plaintiffs, their suit was decreed for specific performance of the
agreement to sell. The appellants were not party before the Courts
below. Defendants No.4 to 8 had purchased the property in dispute
from defendant Nos. 2 and 3, who had in turn purchased the same
from defendant No.1. The appellants have further purchased the
property in dispute from defendants No. 4 to 8.
As per High Courts Rules and Orders Volume 5 Chapter
I, Part C Rule 2, an aggrieved party, though not party before the
Courts below, can file an appeal by seeking permission of this Court.
In the present case, the application for leave to appeal has not been
filed by the appellants. It is a procedural defect and the appeal is
pending in this Court since the year 2005. In these circumstances, it
would be in the interest of justice to dispose of the appeal on merits
R.S.A.No. 1224 of 2005 (O&M) 7
rather than dismissed the same on technical grounds.
So far as the execution of the agreement to sell in
question is concerned, the same cannot be agitated by the
appellants in this appeal as the defendants had not filed any appeal
against the judgment and decree of the trial Court. It is only the
plaintiffs, who had filed an appeal against judgment and decree of
the trial Court seeking relief of specific performance of agreement to
sell instead of recovery of the earnest money.
It has been held by the Apex Court in Usha Sinha vs. Dina
Ram (2007) 7 Supreme Court cases 144 that the doctrine of lis pendens
is based on the principle that the person purchasing property from the
judgment-debtor during the pendency of the suit has no independent right
to property to resist, obstruct or object execution of a decree. Resistance
at the instance of transferee of a judgment-debtor during the pendency of
the proceedings cannot be said to be resistance or obstruction by a person
in his own right and, therefore, is not entitled to get his claim adjudicated.
The doctrine of list pendens would apply to the transaction in question and
the High Court was wholly right in holding that the case was covered by
Rule 102 of Order 21 CPC. The appellant could not seek protection of
pendency of suit instituted by her. The executing Court was not justified in
granting stay of execution proceedings.
It has been held by the Apex Court in Amit Kumar Shaw and
another vs. Farida Khatoon and another (2005) 11 Supreme Court
cases 403 that “Section 52 of the Transfer of Property Act is an
expression of the principle “pending a litigation nothing new should
R.S.A.No. 1224 of 2005 (O&M) 8
be introduced”. It provides that pendente lite, neither party to the
litigation, in which any right to immovable property is in question, can
alienate or otherwise deal with such property so as to affect his
appointment. This section is based on equity and good conscience
and is intended to protect the parties to litigation against alienations
by their opponent during the pendency of the suit. In order to
constitute a lis pendens, the following elements must be present:
1. There must be a suit or proceeding pending in
a court of competent jurisdiction.
2. The suit or proceeding must not be collusive.
3. The litigation must be one in which right to
immovable property is directly and specifically in
question.
4. There must be a transfer of or otherwise
dealing with the property in dispute by any party to the
litigation.
5. Such transfer must affect the rights of the
other party that may ultimately accrue under the terms
of the decree or order.
Admittedly, the appellants had purchased the suit
property during the pendency of this litigation. Hence, the transfer of
the suit land in favour of the appellants is hit by the doctrine of lis
pendens. The question of good faith which is essential to be
established before an equitable relief can be granted in favour of
R.S.A.No. 1224 of 2005 (O&M) 9
subsequent vendee is totally irrelevant so far as the transfer which is
hit by the doctrine of lis pendens is concerned. In these
circumstances, learned Additional District Judge had rightly decreed
the suit of the plaintiff.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
December 02 , 2009
anita
