RSA No.1188 and 1289 of 1986 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1188 of 1986 Date of decision : 31.05.2011 Janak Raj Singh and others ...Appellants Versus Kaur Singh and others ...Respondents AND RSA No.1289 of 1986 Janak Raj Singh and others ...Appellants Versus Kaur Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Shri Sarjit Singh, Sr.Advocate with Shri Jagdev Singh, Advocate, for the appellants; Shri K.S. Chahal, Advocate, for Kaur Singh respondent; and Shri J.R. Mittal, Sr. Advocate, with Shri Kashmir Singh, Advocate, for respondent No.3. JITENDRA CHAUHAN, J. These two regular second appeals bearing no.1188 of 1986 and 1289 of 1986, have been filed by Janak Raj Singh, Balraj Singh and Darshan Singh, vendees, to save two different sale deeds i.e. Sale deed dated 7.9.1981, registered on 19.2.1982, for land RSA No.1188 and 1289 of 1986 -2- measuring 50 K 2 M and dated 22.3.1982, for land measuring 138 K 13 M, executed by Smt Joginder Kaur. The following pedigree table will be helpful in understanding the facts of the case. Gurbachan Singh | Gulab Singh(Smt Joginder Amrik Singh Jit Singh Kaur-vendor) | Harminder Singh (Surjit Kaur) | Kaur Singh alias Jasbir Singh plaintiff. On 11.4.1980, Kaur Singh alias Jasbir Singh minor plaintiff filed a suit through his mother Surjit Kaur, against his father Harminder singh and his grand mother Joginder Kaur for perpetual injunction restraining them from alienating the suit land measuring 343 kanals 11 marlas and for declaration that the land in suit is their coparcenary and Joint Hindu Family property. The present appellants purchased the land vide two sale deeds referred to above, from Joginder Kaur, during the pendency of Civil suit No.122 of 11.4.1980 decided on 31.7.1982. In Civil suit No.122 of 1980 (supra) it was held that parties are governed by Hindu Law and the suit land, including the land the subject matter in these two Regular Second Appeals was coparcenary property of Harminder Singh and Kaur Singh and the transfer by Harminder Singh to Joginder Kaur were ineffective qua the coparcenary rights of Kaur RSA No.1188 and 1289 of 1986 -3- Singh. Smt Joginder Kaur filed regular second appeal No.3317 of 1984 in this Court, which was later on withdrawn by her on 31.5.2011. The present appellants have also filed Regular Second Appeal No.533 of 2011, which was rejected on 31.5.2011, being barred by limitation. Thus, the judgment dated 2.8.1984, passed by the Additional District Judge, Bhatinda, decreeing the suit of the plaintiff in its entirety becomes final. Regular Second appeal No.1188 of 1986. In Civil suit No.156 dated 5.3.1982, decided on 30.7.1984, sale deed dated 7.9.1981 registered on 19.2.1982 executed by Smt Joginder Kaur for the land measuring 50 kanals 2 marlas was challenged, being null and void, claiming that it was not binding on Kaur Singh plaintiff. Harminder Singh and Joginder Kaur were restrained from alienating the suit land vide order dated 30.10.1980 in Civil Suit No.122 of 1980, but the vendees purchased this land despite injunction order issued by the civil court in contravention of the injunction order and took possession of the land. The learned trial Court vide its judgment and decree dated 30.7.1984, dismissed the suit of Kaur Singh plaintiff holding that the suit land is not coparcenary property; the sale is binding on the plaintiff, the parties are governed by the Hindu Law, the RSA No.1188 and 1289 of 1986 -4- plaintiff has no cause of action, the suit is not maintainable and the plaintiff has no locus standi to file the suit. The learned Ist Appellate Court, vide its judgment and decree dated 27.2.1986, reversed the findings of the lower court on issues No.1, 2, 4, 5, 7, and affirmed the findings on issue no.6 and 9, and held that parties are governed by the Hindu Law. While relying on the Full Bench Authority of this Court, in Manohar Lal and another vs Diwan Chand and others-1985 Punjab Law Reporter 689, accepted the Ist appeal, set aside the judgment and decree of dismissal of the suit and decreed the suit of Kaur Singh plaintiff against the present appellant. The present appellants-vendees filed regular second appeal No.1188 of 1986, which was admitted on 6.5.1986 and ordered to be heard with Regular Second appeal No.3317 of 1984. Dispossession was also stayed in the meanwhile. The RSA No.3317 was withdrawn vide order of even date. Regular Second appeal No.1289 of 1986 Kaur Singh alias Jasbir Singh, the minor-plaintiff filed Civil lsuit No.164 of 24.4.1982 through his mother Smt Surjit Kaur for possession of land measuring 138 kanals 13 marlas of land which was decreed on 17.9.1984, holding that the suit land is coparcenary property, the plaintiff being a coparcener has acquired RSA No.1188 and 1289 of 1986 -5- an interest in it by birth; sale deed Ex.D.1 has got no effect on his interest in the suit land and that the plaintiff is entitled to possession of the suit land for the vendees. Balraj Singh, Janak Raj Singh and Darshan Singh, the present appellants preferred Ist appeal before the Additional District Judge, Bhatinda, which was dismissed on 26.2.1986. The present appellant preferred Regular Second Appeal No.1289 of 1986, which was admitted on 9.5.1986 and ordered to be heard with Regular Second Appeal No.3317 of 1984. Dispossession was stayed meanwhile. All the four appeals i.e. 3317 of 1984; 533 of 2011; 1188 of 1986 and 1289 of 1986 were heard together by this Court. Shri Sarjit Singh, learned Sr. Advocate, counsel for the present appellants argued that the property in dispute is not Joint Hindu Family Coparcenar property; the parties are Jats, and governed by customary law; the suit is not maintainable in the civil court and that the suit was bad for misjoinder of necessary parties. He further argued that the appellants are bona fide purchaser for valuable consideration. Shri K.S. Chahal, counsel for the plaintiff-respondent argued that the vendees have purchased the property during the pendency of the suit despite the injunction order, which was in their knowledge and the sale is hit by lis pendis. He further argued RSA No.1188 and 1289 of 1986 -6- that once the judgment and decree dated 2.8.1984, passed by Ist Appellate Court, Bhatinda, decreeing the suit of Kaur Singh, plaintiff, became final on withdrawal of Regular Second appeal No.3317 of 1984, the present appellants, who are vendees during pendency of civil suit and in view issuance of the injunction order dated 30.10.1980, they have no independent right to protect their sale deeds. This Court has heard the learned counsel for the parties and carefully gone through the records of the case with their able assistance. In Civil Suit No.122 of 1980 filed by Kaur Singh plaintiff, it was held that the parties were governed by Hindu Law and land measuring 343 kanals 11 marlas was Joint Hindu Family Coparcenary property. In both the civil suits, from which these regular second appeals have arisen, the property under the sale deed was held to be a Joint Hindu family coparcenary property. Joginder Kaur contested the litigation tooth and nail upto the Ist Appellate Court, but she withdrew her Regular Second Appeal No.3317 of 1984, arising out of civil suit No.122 of 1980 vide order of even date. Meaning thereby the judgment and decree passed by the Ist Appellate Court became final. The interest of the vendees was duly represented by Smt. Joginder Kaur, and now the present appellants are bound by the earlier judgment and decree in RSA No.1188 and 1289 of 1986 -7- Civil Suit No.122 of 1980. It is proved on record that the impugned sales were made for consideration, but the present appellants cannot be termed as bona fide purchasers. The present appellants have either not made bona fide inquiries regarding saleable interest of the vendor and pendency of litigation or they have voluntarily taken the risk of purchasing the land under litigation for a price much below the market rate. Neither the vendor nor the vendees came forward to inform the court that the interest of the third parties came in the lis. Section 52 of the Transfer of Property Act, 1882, reads 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 RSA No.1188 and 1289 of 1986 -8- 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 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.” The doctrine of 'lis pendens' is based on the principle that the persons purchasing the property during the pendency of a suit have no independent right to the property, they having stepped into the shoes of the transferees is bound by the consequences of the lis. The Apex Court in case Usha Sinha vs Dina Ram and others 2008(4) Law Herald (SC) 2749=2008(3) RCR (Civil) 145, while considering the status of the 'lis pendens' transferee observed as under:- RSA No.1188 and 1289 of 1986 -9- “It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent court. The doctrine of 'lis pendens' prohibits a party from dealing with the property which is the subject matter of suit. 'Lis pendens' itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendedsnte lite of the judgment debtor, he cannot seek benefit of rule 98 or 100 of Order XXI.” Thus, the status of transferee pendente lite cannot be treated as that of a stranger and is presumed to have constructive notice of lis pending in the court, therefore, they have to sink and swim together with the transferrers. The conduct of the vendees appellants in purchasing the property in spite of injunction order disentailed them for any relief, especially when concurrent of findings of facts by the courts below is against them. Now the present appellants, who are vendees during lis, have only remedy to proceed against Smt Joginder Kaur, the vendor either to claim RSA No.1188 and 1289 of 1986 -10- damages, or for refund of sale consideration or to insist on delivery of other self acquired land of equal area or equal value. In Mst. Sham Kaur Vs. Hari Singh and others, AIR 1973 Punjab and Haryana 71, it has been held that, “whether or not a particular property was ancestral or non-ancestral, is ordinarily a question of fact and as such cannot be assailed in second appeal. Where, however, such a finding is based on no evidence or is the result of a misreading of material evidence, it amounts to an error of law, warranting an interference in second appeal”. Resultantly, regular second appeals no.1188 of 1986 and 1289 of 1986 are dismissed, with no order as to costs. 31.5.2011 ( JITENDRA CHAUHAN ) atulsethi JUDGE Note : Whether to be referred to Reporter : Yes / No