IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.251 of 2002 1. BIBI AZIZUL FATMA 2. BIBI ASIYA ALIAS ASIYA BEGUM BOTH DAUGHTERS OF LATE BABU MD. SAYEED KHAN, RESIDENT OF MOHALLA NAYA QUILA, P.O. AND P.S. SIWAN, PARGANA BARA, DISTRICT SIWAN….------- APPELLANTS.. Versus 1. NESHAR HAIDER SON OF ZULEFEKAR HAIDER, RESIDENT OF SIWAN KAGZI MOHALLA, P.O AND P.S. SIWAN, PARGANA BARA, DISTRICT SIWAN----- (DEFENDANT-APPELLANT) ---- RESPONDENT IST SET. 2. BIBI ASHAMA KHATOON W/O LATE BABU ABDUL RASHID KHAN 3. GULAM MOINUDDIN KHAN 4. MOHAMMAD BASHIRUDDIN KHAN BOTH SONS OF LATE ABDUL RASHID KHAN, NOS. 2-4 RESIDENTS OF SIWAN NAYA QUILA, P.O. AND P.S. SIWAN PARGANA BARA, DIST. SIWAN.-----(PLAINTIFFS- RESPONDENTS)---- RESPONDENT 2ND SET 5.BIBI ALIA ALIAS BIBI WALIA D/O LATE BABU MD. SAYEED KHAN, W/O HUSSAIN AHMAD,------ RESIDENT OF SIWAN NAYA QUILA, P.O. AND P.S. SIWAN, PARGRANA-12 DISTRICT SIWAN, AT PRESENT RESIDENT AT MOHALLA NEW GODOWN, G.B. ROAD, P.S. KOTWALI, TOWN AND DISTRICT GAYA.--- (DEFENDANT-RESPODENT)---- RESPONDENT 3RD SET. 6.MOHAMMAD ALI, S/O LATE MASHEER AHSAN KHAN 7.MOHAMMAD FAZLUR RAHMAN S/O LATE MASHEER AHSAN KHAN 8.SAIRA SULTAN W/O MD. RAHMATULLAH 9. SALHA SULTANA W/O NAME NOT KNOWN 10. TAHERA SULTANA W/O DR. ANWAR ALAM 11. FAIZA SULTANA W/O NAME NOT KNOWN 12. AISHA SULTANA W/O NADEEM MURAD, NOS.6 TO 12 RESIDENTS OF 160, PATLIPUTRA COLONY, P.S. PATLIPUTRA PATNA-800013 13. ABDUL MORAJ ALIAS ABDUL MAIZ S/O LATE NAKIM IDRIS 14.BIBI ALIA W/O ALAM ALIAS MAHWOOD ALAM MAHANUI 15.MOISULT SULTANA ALIAS TARA 16.ASHRAF SULTANA ALIAS SHAFIA 17.AATIYA YASHMIN, ALL ARE DAUGHTERS OF ABDUL MAIZ NOS. 13-17 RESIDENTS OF MOHALLA KHANKAH BIHARSHARIFF, P.S. BIHARSHARIFF, P.O. BIHARSHARIF, DISTRICT NALANDA. 2 18. SAIYAD SHAHLIM ALI, KOTAWALI KHAMUKAH RASIDIYA JAINPUR SAHAR GORAKHPUR JAFRA BAZAR. 19. BABU USMAN ALI 20. NASHIMA BEGUM 21 BIBI BADRUNNISSHA BEGHUM NOS. 18 TO 21 ALL SONS AND DAUGHTERS OF BABI ASHAFAQUE ALI KHAN 22. SUBENA DEVI W/O RAJESHWAR PRASAD 23. RAJESHWAR PRASAD S/O NAME NOT KNOWN. NOS. 18-23 RESIDENTS OF VILLAGE KARSHAUT, P.S. DARAUNDA, DISTRICT SIWAN 24. MOHAMMAD KASHIM S/O HAZI MOHAMMAD KHARATI, SHOPKEEPER OF SIWAN NAYA QUILA, PARGANA BARA, P.O., P.S. AND DISTRICT SIWAN. 25. SAIYAD SHAH HASHIM ALI, 26. EXPUNGED. 27.BIBI ASHANA BEGHUM W/O MOHAMMAD JAN KHAN ALIVE. 28 BABI AMIR HASAN KHAN 29.AFTAB ALAM KHAN 30. PARHAT KHATOON ALL SONS AND EAUGHTERS OF BABI AMIR HASAN KHAN, NOS. 25-30 RESIDENTS OF KASBA PENHAT, P.O. PENHAT, P.S. ISLAMPUR, DISTRICT NALANDA. 31. BIBI MOMINA BEGHUM W/O SULTAN AHMAD KHAN 32. BIBI HUSHNA BANDI W/O YAQOOB AHMAD KHAN 33. BIBI UMMAT ZOHARA W/O MIRJA REYAZ AHMAD, NOS. 31-33 DAUGHTERS OF BABI ABDUL RASHID KHAN DECEASED, AND RESIDENTS DOF SIWAN NAI QUILA, PARGANA BARA, P.O. P.S. AND DIST. SIWAN. 34. BIBI AISHA KHATOON W/O HAZI SHEIKH ILTAF HUSSAIN, 35. JAMALUDDIN 36. ABDUL KALAM, 37. JALAL AHMAD 38. NESHAR AHMAD, 39. BIBI JAIBUN NISHA W/O ASHALAM ALI, 40. BIBI MAZDA KHATOON 41.BIBI TAZBUN NISSHA W/O MAMUN RASHID, 42.NAZMUM RISHA D/O HAZI SHEIKH ILTAF HUSSAIN NOS. 34-42 RESIDENTS OF VILLAGE PRATAPPUR, PARGANA BARA, P.S. HUSSAINGANJ, DIST. SIWAN. 43. QURBAN ALI S/O SULTAN AHMAD KHAN ALIVE, RESIDENT OF NAI QUILA SIWAN, PARGANA BARA, P.S. & DISTRICT SIWAN. 44. JAWAHIR LAL SON OF SHIV PRASAD ALIVE, 45.SMT. RAJ KUMARI DEVI W/O JAWAHIR LAL, ALIVE NOS. 44-45 RESIDENTS OF MOHALLA KAGHZI MOHALLA SIWAN TURHATOLI, PARGANA BARA, P.S. P.O. AND DISTRICT SIWAN. 3 46. SMT. BASANTI DEVI W/O NAME NOT KNOWN, RESIDENT OF PATWA TOLI, P.S. SIWAN, DISTRICT SIWAN. 47. LAL BABOO PRASAD S/O LAKSHMI SONAR, RESIDENT OF SIWAN SONAR TOLI, PARGANA BARA, P.O. SIWAN P.S. SIWAN, DISTRICT SIWAN (DEFENDANTS-RESPONDENTS)----- RESPONDENTS 4TH SET. ----------- For the Appellants:- Mr. Syed Hussain Majeed, Advocate. 8 16 .04.2010 This appeal has been preferred against the judgment of reversal. The appellants are the defendants- respondents. Title Suit No. 50 of 1973 / 3 of 1993 were filed by the plaintiffs for partition of their share in the properties under Schedule Nos. 1 to 8 of the plaint. The properties initially belonged to the common ancestors of the plaintiffs and defendants, namely, Babu Ismail Ali Khan. Babu Ismail Ali Khan had three wives. The plaintiffs and defendants are the sons, daughter and legal heirs of Ismail Ali Khan from his three wives. The Trial Court rejected the case of the plaintiff regarding oral ‘Hiba’ made by Bibi Wajda in favour of the plaintiff. Similarly, the trial Court rejected the claim of Defendant nos. 2 to 4 that Abdul Quadir Khan (Defendant no.1) had executed a deed of gift in favour of Bibi Azizul Fatma (Defendant no.2-appellant). However, the trial Court 4 held that there is unity of title and possession existing in between the parties; as such the properties mentioned in Schedule are liable to be partitioned. It was also held that the plaintiffs have valid cause of action for maintaining the suit. The final share of the plaintiffs and the defendants under Schedules II, III, IV, V, VI, VII and VIII properties were defined by the trial Court. The share defined by the trial Court, was accepted by the defendants by filing a petition for acceptance, stating that their accurate share has been defined as per Hanifi Law of Inheritance. However in paragraph 69 of the judgment, finding was recorded by the trial Court with regard to property transferred by Abul Quadir Khan- defendant no.1 in favour of his purchasers, subsequently impleaded as defendants. The finding was that by orders dated 18.5.1976, 21.12.1979 and 4.3.1982 the trial Court had restrained plaintiffs and defendants from disposing of alienating the suit property without seeking permission of the Court. Due to this restrain order properties became ‘Custodia legis’ and the parties were left with no legal right to transfer any property, without 5 Courts’ permission. Defendant nos. 14,24,25,27 and 28 purchased suit properties from Quadir Khan, during this restrain period, without seeking any permission from the Court, such transfers have been annulled by the trial Court as not valid. The sale deed executed by Quadir Khan, after restrain order, were held as having no legal sanctity and also that on the basis of these documents no title have passed to the vendees. Finding was also recorded with regard to settlement of three kaths six dhurs of land to khanquash Rasidiya through Muttawali S.S. Mustafa Ali, in view of agreement of all contesting parties to the suit. This transfer had also been made during restrain period, without seeking any permission from Court. No appeal was preferred, against the finding recorded on all these points, except the finding recorded at paragraph 69 of the judgment. Defendant No.24 preferred an appeal against the finding recorded at paragraph 69, relating to suit property purchased by him from Quadir Khan. The Appellate Court reversed the finding recorded by the trial and held that holding 6 No.529 purchased by the appellants under Schedule I of the plaint, along with other lands has been allotted in the shares of Abdul Quadir Khan and also to the share of the legal representatives of Abdul Quadir Khan. Since the vendor of the appellant, got Schedule I property in his share by the judgment and decree, there is no hindrance in holding that the land purchased by the appellant (defendant No.24) be adjusted in the share of defendants 1. The Appellate Court also held that the doctrine of lis pendens does not also affect the right of the appellant with respect to the properties purchased by the appellant. The appellant-defendant no.24 was held to be a genuine purchaser of land by registered sale deed dated 1.6.1979 from Abdul Quadir Khan. It was also held that the appellant was entitled for adjustment of the purchased land in share of the Abdul Quadir Khan to the extent of purchase and allotted to the share of Defendant no.1, under schedule I property. Present second appeal has been filed by original defendant nos. 2 and 3, who are claiming their 7 share in capacity of legal heirs of Defendant No.1 Abdul Quadir Khan. The grounds, taken by the appellant, challenging the judgment and order passed by the Appellate Court, do not make out any substantial question for law for consideration in the Second Appeal. Defendant no.24 had purchased land situated over holding no. 529, from Abdul Quadir Khan, which is under Schedule I of the plaint. The purchase was made after issuance of the restrain order, during the pendency of the suit. Abdul Quadir Khan died on 26.6.1982. The trial court has allotted share in favour of original defendant no.1 Abdul Quadir Khan which includes the subject matter of the Second Appeal. The purchase made by defendant no.24 will be governed by the doctrine of lis pendens. The effect of the maxim, ‘ut lite pendente nehil innovetur’ is not to annul the conveyance, but only to render it subservient to the rights of the parties to the litigant. A partition suit operates as lis pendens with the result that the purchaser of an undivided share, 8 pending the suit, takes only that property which is allotted on partition to his vendor. In this view of the matter, the finding recorded by the First Appellate Court needs no interference. So far the effect of injunction order relating to alienated properties are concerned, it does not affect the right title and interest of the party injuncted in the property. A transfer in breach of the injunction is not void. Accordingly, there is no merit in the Second Appeal. It is dismissed. (Mridula Mishra,J.) A.Kumar