THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No. 249 of 2010 JUDGMENT: 1. The Second Appeal is directed against the Judgment and Decree dated 18.09.2009 in Appeal Suit No.29 of 2008 on the file of the V Additional District Judge (Fast Track Court), Anantapur, whereunder and whereby the judgment and decree dated 05.12.2007 in Original Suit No.149 of 2004 on the file of the Principal Junior Civil Judge, Anantapur, dismissing the suit for permanent injunction, were confirmed. 2. The appellant herein is the plaintiff, and the respondents herein are the defendants, in the suit. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed in the trial court. 3. The plaintiff filed the suit stating that she purchased the plaint schedule property, which is a house, from the first defendant under a registered sale deed dated 12.1.2004 for a valuable consideration and since then she has been in possession and enjoyment of the said property. The defendants, who have no manner of right and title or possession whatsoever over the said property, are highhandedly trying to dispossess her from the said property. She is a poor and helpless lady and is unable to resist the high-handed acts of the defendants, who are rich, powerful and influential persons. Hence, the suit for permanent injunction. 4. The defendants 1 and 2 remained ex parte. The third defendant filed written statement denying the averments in the plaint and stating that the plaint schedule property was already attached as per orders in I.A. No.451 of 2003 in O.S. No.180 of 2003 on the file of the Additional Senior Civil Judge, Anantapur, filed for recovery of money from the first defendant. The attachment was effected by beat of tom tom in the locality where the house is located. Hence, the sale in favour of the plaintiff is null and void, and she is not entitled for the injunction as prayed for. 5. On the above pleadings, the trial Court framed the following issues for trial. 1) Whether the plaintiff is entitled for permanent injunction as prayed for ? 2) to what relief ? 6. During trial, P.W. 1 was examined and Ex.A1 was got marked on behalf of the plaintiff, and D.W. 1 was examined and Exs.B1 to B3 were got marked, on behalf of the contesting defendant no.3. 7. Considering the evidence on record, the trial Court came to the conclusion that the plaintiff cannot be said to be a bona fide purchaser and not entitled for the relief as prayed for, and accordingly, dismissed the suit. Aggrieved by the same, the plaintiff preferred the appeal, which was dismissed by the first appellate court vide the impugned judgment. Challenging the same, present second appeal has been preferred by the appellant/plaintiff. 8. The learned counsel for the appellant contended that Section 64 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) has no application to the facts of the present case and therefore there is misconception of law committed by both the courts below in not granting the relief as prayed for, and hence, he prays to admit the second appeal and set aside the judgments and decrees of the courts below. 9. On the other hand, the learned counsel for the respondent no.3/defendant no.3 contended that the plaintiff knew about the attachment of the schedule property by the court prior to her purchase, and still, the plaintiff purchased the property, and therefore, the sale is hit by Section 64 CPC and also the Doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882, and that both the courts below, upon proper appreciation of the evidence on record in right perspective, gave concurrent findings and there are no grounds to interfere with the same. 10. There cannot be any dispute that, under the amended Section 100 C.P.C., a party aggrieved by the decree passed by the first appellate court has no absolute right of appeal. He can neither challenge the decree on a question of fact or on a question of law. The second appeal lies only where the High Court is satisfied that the case involves a substantial question of law. The word ‘substantial’ as qualifying ‘question of law’, means and conveys – of having substance, essential, real, of sound worth, important, considerable, fairly arguable, in contradiction with – technical, formal, or no substance, no consequence or academic only. A substantial question of law should directly and substantially affect the rights of the parties. A question of law can be said to be substantial between the parties if the decision in appeal turns one way or the other on the particular view of law. But, if the question does not affect the decision, it cannot be said to be substantial question between the parties. Recording a finding without any evidence on record; disregard or non- consideration of relevant or admissible evidence; taking into consideration irrelevant or inadmissible evidence; perverse finding- are some of the questions, which involve substantial questions of law. 11. Now, it has to be seen whether there is any substantial question of law, so as to admit the second appeal ? 12. The factual matrix is not in serious dispute. The plaintiff filed the suit for injunction simplicitor against the defendants and their men to restrain them from interfering with her possession and enjoyment of the plaint schedule property, which is a house bearing door no. 6/142-A1 in the municipal limits of Anantapur, by the plaintiff. The case of the plaintiff is that she purchased the said property under registered sale deed dated 12.01.2004 for a valuable consideration of Rs.1,26,000/- from the defendant no.1 and in pursuance thereof, she was put in possession of the property. The defendants 1 and 2 remained ex parte. The defendant no.3 contended that the schedule house was already attached as per order in I.A. No.451 of 2003 in O.S. No.180 of 2003 on the file of the Additional Senior Civil Judge, Anantapur, filed for recovery of money from the first defendant, and prima facie the plaintiff has no title and possession over the property. 13. Grant or refusal of permanent injunction is guided by three well established principles viz. prima facie title in respect of the schedule property, balance of convenience and irreparable loss if the injunction is not granted. In support of the case of the plaintiff, she herself was examined as P.W.1 and stated that she purchased the plaint schedule property under Ex.A1-registered sale deed and in pursuance of Ex.A1, she was put into possession of the property. In cross-examination, she admitted that the property she wanted to purchase, had already been attached before judgment. Therefore, knowing fully well about the court attachment, the property has been purchased by the plaintiff. 14. According to the learned counsel for the respondent no.3, the purchase by the plaintiff is hit by Section 64 CPC and also the Doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 (for short, ‘the TP Act, 1882’). Section 64 (1) CPC reads as follows: “Private alienation of property after attachment to be void: (1)Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.” In a decision in Rushi Mahakur v. Dibya Shankar Padhan & another[1] it is held thus: (para 3) “After hearing the learned counsel appearing for both parties, I find that the case is completely covered by an identical case reported in (1986) 62 Cut LT 373, Sashi Bag v. Dibya Shankar Padhan. In that case also the disputed land was attached before judgement and was subsequently sold by the same party. On interpretation of S.64 of the Code it was held on plain construction thereof that an alienation of immoveable property made after attachment shall be void against all claims enforceable under the attachment to the same extent as an alienation made after the attachment under a decree. Provisions of S.64 are meant to safeguard the interest of the creditor. As against the attaching creditor a private sale would not be effective, but if the order of attachment is withdrawn or the claim of the creditor is otherwise satisfied the sale deed executed would convey good title to the transferee.” From the above decision, it is clear that Section 64 CPC applies when attachment is made before judgment. 15. Even assuming for a moment that Section 64 CPC has no application, still, the purchase by the plaintiff is hit by the Doctrine of lis pendens under Section 52 of the TP Act, 1882. The Doctrine is intended to prevent one party to a suit from making an assignment inconsistent with the rights which may be established in the suit and which might require a further party to be impleaded in order to make effectual the decree of the court. In Amit Kumar Shaw & another v. Farida Khatoon and another[2], the Apex Court held that the following elements must be present in order to attract Section 52 of the TP Act, 1882. 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. All the above elements are present in this case. Therefore, the plaintiff failed to establish her prima facie title over the schedule property. 16. Coming to the aspect of possession, the plaintiff has not filed a single document to show that she was in possession and enjoyment of the property as on the date of filing of the suit. Except the oral testimony of P.W.1 and Ex.A1, there is no other evidence to show that she was in possession and enjoyment of the schedule property as on the date of filing of the suit. She has not given any explanation as to why she has not filed the important document like tax receipt, electricity bill or such other documents which are necessary and relevant for the purpose of proving her possession. Hence, the plaintiff utterly failed to establish her possession over the schedule property as on the date of filing of the suit. 17. Both the courts gave a concurrent finding that the documents filed by the plaintiff do not establish her prima facie title over the plaint schedule property. The courts below also held that the documents filed by the plaintiff do not establish her exclusive possession over the plaint schedule property. The findings of the courts below are based upon the appreciation of the evidence on record, and under no stretch of imagination it can be said that the said findings of fact are perverse or contrary to the evidence on record so as to infer that there is a question of law, much less a substantial question of law, involved in this Second Appeal. 18. The Second Appeal is devoid of merit and is, accordingly, dismissed at the stage of admission. No costs. --------------------- 11.02.2011 (K.C.Bhanu, J.) DRK THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No. 1096 of 2007 11.2.2011 THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No. 249 of 2010 11.2.2011 Between: Gadupati Venkatalakshmamma …Appellant And P.Rushigamaiah & others. …Respondents [1] AIR 1988 ORISSA 145 [2] (2005) 11 Supreme Court Cases 403