RSA No.2221 of 1985 (O&M) -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2221 of 1985 (O&M) Date of decision: .07.2011. Surinder Kaur and others ...Appellants Versus Malkiat Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. H.S.Dhandi, Advocate, for the appellants. None for the respondents. ***** Rakesh Kumar Jain, J. The plaintiffs are in second appeal. The suit was originally filed for possession by Basant Kaur daughter of Ind Kaur who had left behind 478 Kanals 13 Marlas of land and a residential house in village Kutba. Out of the land situated in village Kutba, 17 Kanals 10 Marlas of land was acquired by the State Government and a mutation was sanctioned in that regard, whereas mutation of inheritance of Ind Kaur was sanctioned in favour of Basant Kaur vide mutation No.4313 dated 12.04.1963. Bachan Singh, now represented through Malkiat Singh, filed a suit for declaration against Basant Kaur regarding ownership and possession of land measuring 478 Kanals 13 Marlas which was decreed by the learned Trial Court and appeal filed by Basant Kaur was dismissed by the learned First Appellate Court. However, a compromise was effected between the parties in RSA No.356 of 1966 on 15.10.1976, which reads thus:- “The parties have entered into a compromise and according to the compromise the suit of the plaintiff is decreed qua 20 acres only out of the suit land. His RSA No.2221 of 1985 (O&M) -2- ***** suit with respect to the remaining land stands dismissed. The decree of the Courts below is modified accordingly and the parties are left to bear their own costs.” It is also admitted fact that Bachan Singh did not file any suit with regard to the other land of village Hamidi and also with regard to the residential house of village Kutba. Bachan Singh had effected various alienations out of the suit land of village Kutba of the land measuring 234 Kanals 13 Marlas to defendant Nos.2 to 14. The case set up by Basant Kaur is that Bachan Singh could only alienate 160 Kanals of land, i.e. 20 acres, but he sold 74 Kanals 13 Marlas of land in excess of his share which devolved upon him vide decree of the High Court. It was further alleged that vide agreement dated 09.02.1963, Bachan Singh had given possession of land measuring 116 Kanals 17 Marlas out of remaining land in his possession situated at village Kutba to defendant Nos.18 to 21 without any right or title. Thus, out of total land measuring 466 Kanals 03 Marlas, Bachan Singh remained in possession of 104 Kanals and 13 Marlas situated in village Kutba, but he had sold his share of land measuring 15 Kanals 17 Marlas situated in village Hamidi to defendant Nos.15 to 17 although he had no right or title to do so. It was also averred that Bachan Singh was in unauthorized possession of land measuring 02 Kanals 17 Marlas situated in village Hamidi and also a residential house situated in village Kutba. Accordingly, the plaintiff claimed possession of land measuring 323 Kanals 14 Marla (infact the total area of Khasra numbers mentioned in the heading of the plaint comes to 319 Kanals 16 Marlas) and one house situated in village Kutba against the defendants. Defendant Nos.15, 16 and 17 did not put in appearance despite service and were proceeded against ex-parte. Bachan Singh contested the suit and admitted Ind Kaur to be the original owner of the property and the fact of mutation of inheritance sanctioned in favour of her daughter Basant Kaur. He admitted the filing of the earlier suit but denied the other allegations made in the plaint and had asserted that the alienations made by him were valid. Defendant Nos.2 and 14 also resisted the suit by way of filing their separate written statement and averred that the decree passed by the High Court on the RSA No.2221 of 1985 (O&M) -3- ***** basis of compromise was collusive and the alienations effected in their favour are valid. Similar pleas were raised by defendant No.3, 4 and 13. Defendant Nos.5 to 9 also took the similar pleas in their joint written statement. Defendant Nos.10, 11 and 12 maintained that they are bona fide purchasers for valuable consideration and the relationship between Basant Kaur and Ind Kaur was denied. It was asserted that the decree passed by the High Court was collusive which was not binding on them. Defendant Nos.18 to 21 filed their separate written statement denying the assertions made in the plaint. It was pleaded that the land measuring 116 Kanals 07 Marlas was given to them by its owner Bachan Singh in pursuance of an agreement dated 09.02.1963 and they are continuing in its possession since then. It was pleaded that they have become the owners by virtue of adverse possession and the suit is also barred by time. On the pleadings of the parties, following issues were framed by the learned Trial Court on 20.12.1978: - “1. Whether Basant Kaur was daughter of Ind Kaur and the plaintiffs are successors-in-interest of Mst. Basant Kaur as such have the locus-standi to file the present suit?OPP. 2. Whether the suit is properly valued for purposes of court-fee and jurisdiction?OPP. 3. Whether the suit is not maintainable in the present form?OPD. 4. Whether the decree of High Court is ambiguous? If so, its effect?OPD. 5. Whether the compromise decree of the High Court was produced in collusion with Mst. Basant Kaur and defendant No.1?OPD. 6. Whether the suit is bad for mis-joinder of necessary parties and cause of action?OPD. 7. Whether the suit is within limitation?OPP. 8. Whether the vendees are bona fide purchasers for consideration and to the knowledge of RSA No.2221 of 1985 (O&M) -4- ***** Basant Kaur deceased?OPD. 9. Whether the plaintiffs are estopped to file the present suit?OPD. 10. Whether the suit property has not been correctly described in the head note of the plaint? If so, its effect?OPD. 11. Whether defendant No.1 has disposed of the property in excess of his right as mentioned in the decree of High Court?OPP. 12. Whether the plaintiffs are entitled to a decree for possession in respect of land measuring 323 Kanals and 14 marlas as mentioned in the plaint?OPP. 13. Whether the defendants No.18 to 21 have become owners of the suit land to the extent of 116 Kanals and 7 marlas as mentioned in para 16 of written statement by way of adverse possession?OPD. 14. Relief.” The learned Trial Court decided issue Nos.1 and 7 in favour of the plaintiffs and issues Nos.5, 8, 11, 12 and 13 partly in favour of the plaintiffs and partly in favour of the defendants, whereas issue Nos.2, 4, 6, 9 and 10 were decided against the defendants as not pressed. Resultantly, the suit was decreed on 26.03.1982 to the following effect: - “In the light of my findings on the above issues, a decree for possession of the house in dispute, 2 Kanals 7 Marlas of land comprising of Khasra No.17/2 of rectangle No.77, situated in village Hamidi and for joint possession of 233 Kanals 1- ½ marlas of land out of the suit land which is a part of 473 kanals 13 marlas of land originally owned by Ind Kaur situated in village Kutba and of ½ share of land RSA No.2221 of 1985 (O&M) -5- ***** measuring 15 Kanals 7 marlas comprising of Khasra Nos.24/1 and 25/2 situated in the revenue estate of village Hamidi is passed in favour of the plaintiffs and against the defendnats with costs.” Aggrieved against the judgment and decree of the learned Trial Court, the plaintiffs filed Civil Appeal No.54 of 1982, Malkiat Singh (defendant No.1) filed Civil Appeal No.58 of 1982 and defendant Nos.18 to 21 filed Civil Appeal No.50 of 1982 which were all decided together by the learned First Appellate Court. The plaintiffs filed an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 [for short “CPC”] which was rejected. The learned First Appellate Court observed that neither any argument has been addressed on issue Nos.1, 2, 3, 4, 6 and 9 nor the finding returned by the learned Trial Court on these issues have been assailed, therefore, the finding recorded by the learned Trial Court on these issues were affirmed. The learned First Appellate Court decided issue Nos.5, 8, 11, 12 and 13 together as has been done by the learned Trial Court. The learned First Appellate Court had observed that the suit of Bachan Singh against Basant Kaur was in respect of ½ share of total land measuring 478 Kanals 13 Marlas, situated in the area of village Kutba which was compromised before the High Court, according to which Bachan Singh got 20 acres of land. Out of the entire land owned by Ind Kaur, land measuring 12 Kanals 10 Marlas comprising in Killa Nos.1817 and 1818, were acquired by the State Government and the mutation No.4435 was sanctioned in this regard on 13.06.1969 as is evident from note No.4 appended in the excerpt Ex.P1. Thus, the total land available to Bachan Singh and Basant Kaur was 466 Kanals 03 Marlas, ½ share of which comes to 233 Kanals 1–½ Marlas. Under the judgment and decree passed by the Courts below in the earlier suit, Bachan Singh was held entitled to that much of land, but by virtue of the compromise decree, he was held entitled only to 20 acres equivalent to 160 Kanals of land. The learned First Appellate Court had found that Bachan Singh had effected as many as 9 alienations out of the suit land and the total area alienated comes to 234 Kanals 13 Marlas. The alienations effected vide sale deeds Ex.D6, Ex.D5 Ex.D10, Ex.D11, Ex.D12 and vide mutation No.1928 RSA No.2221 of 1985 (O&M) -6- ***** (Ex.PR) to the extent of 33 Kanals 01 Marlas out of 48 Kanals covered vide that mutation, were admittedly valid because those do not cover the land beyond 160 Kanals. As per the plaintiffs, sale to the extent of 16 Kanals 09 Marlas effected vide mutation Ex.PR in favour of defendants No.10, 11 and 12 as also the alienation effected vide sale deeds Ex.D7, Ex.D8 and Ex.D9 were invalid because those were in excess of the land given to Bachan Singh under the compromise decree passed by the High Court. It was alleged before the learned First Appellate Court that since these alienation's had been effected during the pendency of the litigation, therefore, these were hit by the principle of lis pendense. However, the learned First Appellate Court had held that since the High Court had not decided the Regular Second Appeal on merits and had rather decided it on the basis of a compromise, the principle of lis pendense as enshrined under Section 52 of the Transfer of Property Act, 1882 [for short “the Act”] would not be applicable. In nutshell, it was observed that had it been a decision on merits by the High Court, then Section 52 of the Act would have been applicable. Ultimately, aggrieved against the judgment and decree of the learned First Appellate Court dated 12.06.1985, the present regular second appeal was filed. Learned counsel for the plaintiffs has submitted that the substantial question of law involved in this appeal is as to “whether any transfer made during the pendency of the litigation, which culminated into a decree by way of a compromise, would be hit by Section 52 of the Transfer of Property Act or not? It is further submitted by him that Bachan Singh had transferred the land in dispute by way of various alienations even during the pendency of the earlier suit which ended up in a compromise (Ex.PF) according to which he was left with only 160 Kanals of land which was otherwise used by him to the extent of 233 Kanal 1 – ½ Marlas. After the said decree, when the plaintiffs had found that he has transferred about 73 Kanals 10 Marlas of land in excess of his share, the present suit was filed by not only impleading Bachan Singh but also all the persons who had purchased the excess land. Learned counsel for the plaintiffs has basically relied upon a Full Bench judgment of the Orissa High Court in the case of Sri Jagannath Mahaprabhu v. Pravat Chandra RSA No.2221 of 1985 (O&M) -7- ***** Chatterjee and others, AIR 1992 ORISSA 47 to contend that lis pendens transferee would be bound by the decree whether on contest, ex-parte or on compromise. No-one has put in appearance on behalf of the respondents. I have heard learned counsel for the appellant and perused the record with his able assistance. The facts are not much in dispute in this case as defendant No.1 had made alienations during the pendency of the earlier suit in which he has been held entitled to only 160 Kanals of land which has been apparently sold by him more than his share. The substantial question raised by the plaintiffs is only as to whether there is any protection to those persons who had purchased the suit property during the pendency of the litigation on account of the suit having been decreed on the basis of compromise and not on contest. In this behalf, a look at Section 52 of the Act is required, which is as under: - “52. 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 proceedings 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 by 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 plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the RSA No.2221 of 1985 (O&M) -8- ***** 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.]” A perusal of the aforesaid Section shows that the only exception with regard to non-application of Section 52 is that when the suit is found to be collusive. In the present case, the suit was contested by both the parties in which the plaintiffs had lost before the Trial Court as well as the First Appellate Court and the matter was compromised at the stage of Regular Second Appeal. In this regard, the Full Bench of the Orissa High Court in Sri Jagannath Mahaprabhu's case (supra) has held that the effect of Section 52 of the Act is that a lis pendens transferee is bound by the decree whether on contest, ex- parte or on compromise. In view thereof, the question of law raised by learned counsel for the appellant is answered in his favour. Hence, the present appeal is hereby allowed and the judgment and decree of the learned First Appellate Court is set aside. July 04, 2011. (RAKESH KUMAR JAIN) vinod* JUDGE