E.S.A.Nos.276 and 277 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision:- 16.8.2010 Yogeshwar Education Trust ...Appellant Versus Gurmeet Kaur and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present: Mr.I.K.Mehta, Senior Advocate with Mr.M.S.Kohli, Advocate for the appellant. Mr.Raj Kumar Gupta, Advocate for the respondents. M ehinder S ingh S ullar , J. As identical questions of law and facts are involved in the above indicated appeals, arising out of the same impugned judgments between the same parties, therefore, I propose to dispose of the same, vide this common judgment, in order to avoid the repetition. However, the facts, which need a necessary mention, have been extracted from ESA No.276 of 2004. 2. The epitome of the facts, culminating in the commencement, relevant for disposal of present appeals and emanating from the records, is that Smt.Mando was the owner of land measuring 131 Kanals 10 Marlas. She had sold the same by virtue of registered sale deed dated 19.6.1967 in favour of Sewa Singh, Dalbir Singh and Darbara Singh sons of Kapoor Singh (hereinafter to be referred as “the original vendees”). Smt.Subbi and Smt.Giano, daughters of Smt.Mando (vendor), filed two separate suits bearing Nos.250 and 252 of 1968 respectively against the original vendees to pre-empt the sale of the land, under the Punjab Pre-emption Act (hereinafter to be referred as “the Act”) (as applicable to Haryana). The civil suits were consolidated and disposed of by common judgment and decree dated 20.10.1972 passed by the Sub Judge Ist Class, Karnal. Accordingly, a decree for pre-emption was passed in favour of the plaintiffs in respect of the land in dispute. The original vendees filed two separate appeals, which were dismissed as well, by E.S.A.Nos.276 and 277 of 2004 2 the Ist appellate Court on 10.5.1973. The Regular Second Appeal bearing No.1020 of 1973 (filed by the original vendees) was dismissed, while Regular Second Appeal bearing No.176 of 1973 (filed by Tara Singh lessee) was allowed by this Court on 8.3.1982. Aggrieved by the judgment of this Court, the original vendees filed Special Leave to Appeal bearing No.9541 of 1982 on 19.7.1982 in the Hon'ble Supreme Court within the prescribed period of limitation. Thereafter, the SLP was re-numbered as Civil Appeal No.992 of 1987. During the pendency of the SLP, the Hon'ble Apex Court declared the Pre-emption Act as ultra vires of Article 14 of the Constitution, in so far as the right of pre-emption based on consanguinity was concerned by virtue of judgment dated 27.2.1986 rendered in the another case of Atam Prakash v. State of Haryana (1986) 2 SCC 249. Consequently, on the basis of this judgment, the civil appeal (No.992 of 1987) filed by the original vendees was allowed by Hon'ble Apex Court on 10.7.1995 and the decrees of pre-emption passed in favour of Smt.Giano and Smt.Subbi, daughters of Smt.Mando, were set aside. 3. The case further proceeds that during the pendency of the SLP, Smt.Giano and Smt.Subbi had executed the sale deeds in favour of Surta and Shashi Kumar sons of Dhan Singh and Pirthi son of Surta, in respect of parcel of land out of the disputed land. Thereafter, they further executed the sale deeds of the same land in favour of Yogeshwar Education Trust-appellant herein and respondent No.1 in the trial Court (for brevity “the appellant-Trust”) on 4.7.1985 and 24.10.1985. Smt.Giano and Smt.Subbi had also executed the sale deeds in favour of the appellant-Trust on 24.10.1985 and 23.12.1985 in respect of remaining suit land. It will not be out of place to mention here that both Smt.Giano and Smt.Subbi had earlier taken possession of the land in dispute on 12.6.1982, in pursuance of warrants of possession dated 22.5.1982, issued in execution of the pre-emption decree as a consequence of dismissal of RSA No.1020 of 1973 by this Court on 8.3.1982. Tara Singh, who was a lessee of the disputed land, died in the E.S.A.Nos.276 and 277 of 2004 3 meantime and his legal representative gave up his tenancy rights in favour of Smt.Subbi and Smt.Giano. In this manner, both Smt.Giano and Smt.Subbi came in actual possession of the land in dispute. 4. In the wake of order passed in their favour in civil appeal by the Hon'ble Supreme Court, the original vendees of Smt.Mando had then filed an application on 15.5.1998 seeking restitution of possession of the land in dipsute, invoking the provisions of section 144 C.P.C., which had resulted into setting aside of the decree for pre-emption passed in favour of Smt.Giano and Smt.Subbi. 5. As Smt.Giano and Smt.Subbi did not appear despite service to contest the application, therefore, the ex parte proceedings were ordered against them by the trial/executing Court. However, the appellant-Trust contested the application and filed the reply, inter-alia, pleading certain preliminary objections of, maintainability of the application, locus standi of the original vendees, concealment of facts, nonjoinder and misjoinder of necessary parties. It was claimed that since the appellant-Trust is the bonafide purchaser for valuable consideration, so, the original vendees cannot take possession from it in an application under section 144 CPC and they can file suit for a decree of possession only. It will not be out of place to mention here that the appellant-Trust has denied the remaining allegations contained in the application and prayed for its dismissal. 6. Taking into consideration the entire material on record, the trial/executing court accepted the application of original vendees and ordered the restoration of possession of suit land, by virtue of impugned order dated 28.3.2003. 7. Aggrieved by the impugned order of executing Court, the appellant- Trust filed the appeal, which was dismissed as well, by the first appellate Court, vide impugned judgment dated 11.12.2003. 8. The appellant-Trust still did not feel satisfied with the impugned judgment/order of the Courts below and filed the present appeals. That is how, I am seized of the matter. E.S.A.Nos.276 and 277 of 2004 4 9. As is evident from the record that owing to difference of opinion expressed by two Single Bench decisions of this Court in the cases of Mewa Singh v. Jagir Singh, AIR 1971 P&H 244 and Dalip Kaur v. Jeeva Ram, 1996 PLJ 72, this very matter was referred to Division Bench to opine on the following questions of law:- i) Whether the principles of lis pendens would apply in a case where sale has been effected after filing of SLP in the Supreme Court but before leave to appeal has been granted. In other words, whether the principles of lis pendens would apply in respect of sale deeds executed in favour of the appellant Trust on 4.7.1985, 24.10.1985 and 23.12.1985 after RSA 1020 of 1973 was dismissed by this Court on 8.3.1982 and SLP had been filed in the Supreme Court on 19.7.1982, however, leave to appeal was granted on 13.4.1987? ii) Whether the effect of grant of leave to appeal is to be taken from the date of filing of the SLP i.e. on 19.7.1982 or from the date leave to appeal was granted on 13.4.1987? and iii)Whether in any case, the plea of bona fide purchaser in terms of Section 41 of the Transfer of Property Act, 1882, is available to the appellant in case the land purchased by him is affected by the principles of lis pendens? 10. Having considered the matter deeply and in view of judgments of Hon'ble Apex Court, particularly the law laid down in case Kunhayammed v. State of Kerala, (2000) 6 SCC 359, questions No.(i) and (ii) were answered as under:- “Accordingly, question Nos. (i) is answered by holding that the principles of lis pendens would apply in respect of transfers/alienation which have been effected after filing of the Special Leave Petition before the Supreme Court and before leave to appeal has been granted. The answer to question No. (ii), which is ancillary has to be that the order granting leave to appeal has to take effect E.S.A.Nos.276 and 277 of 2004 5 from the date of filing the Special Leave Petition and not from the date the leave to appeal was granted. Therefore, the view expressed in Mewa Singh’s case (supra) by the learned Single Judge of this Court, with utmost respect, is not correct and is hereby overruled, inasmuch as, this Court has observed that the remedy under Article 136 of the Constitution is an extra ordinary remedy and is not in the ordinary line of appeal and that the proceedings became pending only when leave to appeal was granted. The aforesaid reasoning does not commend itself to us. Therefore, with utmost respect we overrule the aforesaid view, especially when it comes into conflict with the observation made by Hon’ble the Supreme Court in Kunhayammed’s case (supra).” 11. Sequelly, question No.(iii) was also answered against the appellant- Trust, who is transferee pendente lite, vide judgment dated 28.8.2008 rendered by Division Bench of this Court in the instant case reported as Yogeshwar Education Trust v. Gurmeet Kaur and others 2009 (2) Civ.C.C.345 (P&H). 12. Meaning thereby, the Division Bench of this Court has already negatived the main legal pleas of bonafide purchase and lis pendens raised on behalf of the appellant-Trust. But still ex-facie, the further argument of its learned counsel that Tara Singh was in possession of the suit land as a lessee and since Smt.Giano and Smt.Subbi got only its symbolic possession in pursuance of the pre-emption decree, after the dismissal of the RSAs by this Court, so, the legal representatives of the original vendees are not entitled to its actual possession, is neither tenable nor the observations of Patna High Court in case Banarsi Prasad v. Hare Kishun Radhey Kishun A.I.R.1932 Patna 317 and the Madras High Court in case Lakshmi Amma v. Thazhathitathil Krishna Kurup A.I.R.1931 Madras 81, are at all applicable, wherein it was observed that a party who applies for restitution of possession under section 144 CPC should prove that he was in possession of something, the restitution or restoration of which he seeks.” Possibly, no one can dispute with regard to the aforesaid observations, but the E.S.A.Nos.276 and 277 of 2004 6 same would not come to the rescue of the appellant-Trust in the present controversy. 13. As is clear from the evidence on record that Smt.Giano and Smt.Subbi got the possession of the disputed land after the dismissal of the RSAs filed by the original vendees. It is not a matter of dispute that Tara Singh lessee died on 25.11.1982 and his son Lakhvinder Singh was impleaded as his legal representative. Since Lakhvinder Singh was not interested in cultivation of the land in dispute as he was staying in his village in Amritsar District, so, he himself surrendered his lease rights (actual possession) in favour of Smt.Giano and Smt.Subbi and thus they came into exclusive possession of the land in dispute in pursuance of the pre-emption decree, which was reversed by Hon'ble Apex Court. 14. The matter did not rest there. Smt.Giano and Smt.Subbi filed Civil Misc. Petition No.22084 of 1988 in Civil Appeal No.992 of 1987 (mark-A) for revocation of special leave, granted to the original vendees, vide order dated 13.4.1987, inter-alia pleading (in para 7) as under:- “After the judgment of the High Court, the applicants herein executed the decree passed in their favour and took possession of the land in dispute. With regard to the lease, it is submitted that Tara Singh lessee died on 25.11.1982 and in his place the name of Shri Lakhvinder Singh, his son was substituted. Since Lakhvinder Singh was not interested in cultivation of the land in dispute as he was staying in his village in Amritsar District he surrendered his lease rights in favour of the applicants and swore an affidavit duly attested by Sub Divisional Magistrate, Thaneswar to that effect. A photostat copy of the said affidavit together with its true translations are annexed herewith as Annexure 'A' to this petition.” This application was dismissed by the Hon'ble Supreme Court, vide order dated 13.3.1989 (Ex.P9). 15. Meaning thereby, it is fully established on record that in this manner, E.S.A.Nos.276 and 277 of 2004 7 Smt.Giano and Smt.Subbi got exclusive possession of the land in dispute by way of execution of the decree, which was subsequently set aside by Hon'ble Apex Court as depicted here-in-above. Once it is proved on record that they got actual possession of the disputed land in pursuance of the decree in pre-emption suit, then in the wake of reversal of the same, the LRs of the original vendees were legally entitled to restitution of its actual possession in the obtaining circumstances of the case. 16. Faced with this situation, the other feeble argument of the learned counsel for the appellant-Trust that the application for restitution of possession was liable to be dismissed as other subsequent vendees, namely Surta and Shashi Kumar sons of Dhan Singh and Pirthi son of Surta were not impleaded as parties, is not only devoid of merit but misplaced as well. Sequelly, the observations of Hon'ble Apex Court in case Government of Orissa v. Ashok Transport Agency and others (2005) 1 Supreme Court Cases 536, are not at all attracted to the facts of the present case, wherein it was observed in para 9 as under:- “Normally, in a case covered by Order 22 Rule 10 of the Code of Civil Procedure where rights are derived by an assignee or a successor-in-interest pending a litigation, it is for that assignee or transferee to come on record if it so chooses and to defend the suit. It is equally open to the assignee to trust its assignor to defend the suit property, but with the consequence that any decree against the assignor will be binding on it and would be enforceable against it. Equally, in terms of Section 146 of the Code of Civil Procedure, a proceeding could be taken against any person claiming under the defendant or the judgment-debtor. Similarly, a person claiming under the defendant or the judgment-debtor could seek to challenge the decree or order that may be passed against the defendant, by way of appeal or otherwise, in the appropriate manner. But, it would not be open to it to challenge the decree as void or unenforceable in execution in the absence of any specific provision in that regard in the statute or order bringing E.S.A.Nos.276 and 277 of 2004 8 about such a transfer or assignment. Going by these general principles, it is possible to argue that it was for the Corporation, and subsequently for the State of Orissa, to get themselves impleaded in the suit and to prosecute a defence, not inconsistent with the defence already set up by the defendant in its written statement. Neither the Corporation nor the Government of Orissa took that step. In such a situation, normally, one would be inclined to the view that it is not open to the Corporation or to the Government of Orissa to challenge the executability of the decree as against them. It is in this context that the impact of the Amalgamation Order has to be considered.” 17. Hardly, there is any dispute in respect of the observations of the Hon'ble Supreme Court but the same are not attracted in the instant case. As indicated earlier, during the pendency of the proceedings of Special Leave Petition/Civil Appeal, Smt.Giano and Smt.Subbi had sold some land directly to the appellant-Trust and some to Surta and Shashi Kumar sons of Dhan Singh and Pirthi son of Surta, by way of different sale deeds. They had subsequently/further transferred the same land to the appellant-Trust, vide sale deeds. In other words, the appellant-Trust purchased the entire suit land, vide different sale deeds, had stepped into their shoes for all intends and purposes and hotly contested the claim of possession of LRs of original vendees. Therefore, non-impleadment of above named subsequent vendees is not a ground to dismiss the application for restitution, particularly when as described here-in-above, the subsequent sale deeds were held by Division Bench of this Court to be hit by the doctrine of lis pendens and the subsequent vendees are not bonafide purchasers. Thus, the contrary arguments of the learned counsel for the appellant-Trust “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 18. There is another aspect of the matter, which can be viewed from a different angle. The trial/executing Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on E.S.A.Nos.276 and 277 of 2004 9 record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the well-articulated and well-reasoned concurrent finding of fact that Smt.Giano and Smt.Subbi got the actual possession in pursuance of the decree in pre-emption suit and on its reversal, the LRs of original vendees are entitled to restitution of possession of the land in dispute. Such pure concurrent findings of fact cannot possibly be set aside by this Court in the instant second appeals, unless and until the same are perverse and without jurisdiction. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-Trust in the impugned judgment/order of the Courts below. 19. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 20. In the light of the aforesaid reasons, as there is no merit, therefore, the instant appeals are hereby dismissed with costs. (Mehinder Singh Sullar) 16.8.2010 Judge AS Whether to be referred to reporter?Yes/No