1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1739 OF 2008 with C.A. No.10652/2008 Laxmikant s/o Manikkant Kediya, Age 53 years, Occu. Business, r/o C-222, Five Garden, Opp.P.C.M.C. D—Block Office, Village Rahatni, Pune. ...APPELLANT VERSUS 1. Subhash Chandanmal Gundecha, Age 54 years, Occu. Agri. & Press Reporter, r/o Sangale Galli, Ahmednagar. 2. Pravin Chhotalal Mehata, Age 56 Years, Occu. Agri. r/o Adte Bazar, Ahmednagar. 3. Deepak s/o Nagardas Mehata, Age 54 years, Occu. Agri., r/o Market Yard Road, Ahmednagar. 4. Smt. Sumati Sundarnath Shinde, Age 54 years, Occu. Household, 5. Vaishali Sundarnath Shinde, Age 33 years, occu. Housewife. 6. Varsha Sundarnath Shinde, Age 31 years, Occu. Housewife. 7. Vishal Sundarnath Shinde, Age 27 years, Occu. Agri. Resp.No.4 to 7 are r/o Mahatma Phule Co-Operative Housing Society, Gavhanwade, 2 Vidhalaya Marg, 90 Ft. Rasta, Mulund ( East) Mumbai – 81. 8. Shivaji Madhav Dusunge, Age 46 years, Occu. Agri., r/o Kapurwadi, Tq. & Dist. Ahmednagar. 9. Digambar Kishor Pande, Age 40 years, Occu. Agri. r/o 5-Saliwadi, Mithagar Road, Mulund (East), Mumbai 400 081. ...RESPONDENTS (Resp.No.1 to 3 Orig. Plaintiffs and Resp. Nos. 4 to 9 Orig.Deft. Nos. 1 to 6) ... Mr. S.S.Deshmukh, Advocate, for the appellant. Mr. A.K.Gawali, Adv., for respondent nos. 1 to 3. Mrs.Manjusha S.Jagtap, Adv., for respondent nos. 4 to 7. ... CORAM : K.U.CHANDIWAL, J. DATE : 12th June, 2009 ... PER COURT : 1. The Court notings indicate that both the Counsel agree that the matter is to be heard and decided at admission stage. The paper book was furnished and it was in this scenario, the matter is heard finally, today. 2. The appellant herein is the subsequent purchaser of the property. He was not a party to the suit in question which is subject of challenge being Special Civil Suit No.92/2007 decided on 15.4.2008 whereby the learned Joint 3 Civil Judge, Senior Division, Ahmednagar, in operative part, in clauses 3 and 5, has directed as under: “3. The plaintiffs are hereby directed to deposit balance consideration amount of Rs.4,21,225/- by deducting the costs of suit in the Court till 03.05.2008. Thereafter, defendants no.1 to 6 and above said Laxmikant Kediya shall execute the sale deed of suit property on or before 16.06.2008 in the favour of plaintiffs, by inducting them into possession of suit property accordingly. 5. On execution of sale deed of suit property, Laxmikant Kediya is entitled to receive the amount to be deposited in the court by the plaintiffs. “ 3. The Counsel for the appellant would argue that, taking all the events in consideration, it is apparent that present appellant is bona fide purchaser for value, having no knowledge of earlier transaction or even pending litigation and, consequently, the agreement of sale of which the performance was sought by the purchaser the plaintiff Subhash, and its effect would not bind to the present appellant. 4. The next contention from the learned Counsel was that the conduct of the parties portray that the cause in Special Civil Suit No. 92/2007 more leans to show it to be a collussive action between plaintiff/purchaser and the defendants therein who are his vendors also. 4 5. The land Gat No.806 comprises of 4 H. 17 R.from which present appellant has purchased one third share amounting to 1 H. 39 R. by virtue of the sale deed which is annexed at page 21, dt. 11.6.2007, from Shivaji Madhav Dusange and Digambar Kishor Pande ( defendant nos. 5 and 6). 6. The defendant nos. 5 and 6, inter alia, had purchased the very property by virtue of a sale deed dt.2nd March, 2007, from legal representatives of the original owner. 7. The admitted position is that the entire block 4 H. 17 R. was owned by three brothers; Sundernath, Kantinath and Pandharinath. Plaintiff says, on 16.9.2004, Sundernath, when he was alive, with legal heirs of Kantinath and Pandharinath, entered into agreement of sale with him. The legal representatives of Kantinath and Pandharinath only executed sale deed to the extent of their two third part, however, the legal representatives of Sundernath did not execute the sale deed for left over one third part i.e. 1 H. 39 R., the subject matter of the present litigation. 8. The plaintiff avers that he has, in pursuance to agreement of sale, got the sale deed from other heirs, as indicated herein and, since the legal representatives of Sundernath did not comply their part of the obligation, issued legal notice dt.20th Feb.,2007, to execute the sale deed. 9. The plaintiff, in fact, indicated to 5 everybody that nobody should purchase the property from defendant nos. 5 and 6. There was an injunction to this effect but, inspite of such publication dated 24th May 2007 having been published in daily Nagar Times and daily Nava Maratha, published from Nagar, there is subsequent purchase transaction by the appellant from defendant nos. 5 and 6. This aspect blasts the theory of appellant that they were unaware of any earlier transaction of plaintiff and defendant nos. 5 and 6 or plaintiff and predecessor-in-title of defendant nos. 5 and 6. The ignorance pleaded by the appellant herein is only shedding tears, nothing more than that. 10. It may be that the appellant as canvassed, he has taken all precautions since he has caused paper publication on 18th May, 2007, based on agreement of sale dt.17th May, 2007. However, it was incumbent upon the appellant herein to have verified the revenue entries as the so called one third portion, which he wanted to purchase, was a undivided portion. It was naturally incumbent, for getting it divided and, for that purpose, to contact the persons who were already enjoying the property, to get it separately demarcated. It is more so because, in the sale deed of the appellant, at the western side, road is shown, and during the course of submissions Mr. Deshmukh, Counsel, canvassed that the property is abutting Nagar-Pune Highway very high commercial potentiality. According to the 6 Counsel, the appellant proposes to have a resort at the said property, since they had also the backside property, purchased simultaneously on the same day. 11. Any prudent person, shall see as to what are the boundaries and what access is available to him. Without any lawful authority, the appellant has shown, at the western side, in the sale deed that there is a road which, without there being division of the property, he could not have asserted to do so. 12. Apart from this flaw in the matter, there comes an application Exh.26 moved by the plaintiff to implead the appellant as a party in the proceedings. It was, in fact, to facilitate the present appellant, to prosecute all his contentions, as he claimed to be bona fide purchaser for value, however, for the reasons best known to the appellant, he resisted the said application and it was rejected. Mr.Deshmukh, Counsel, accepts, there is no challenge to the said rejection of the said Exh. 26. The fact remains, whatever available opportunity was with the appellant, he has missed it and, the impression is, it was with oblique motives. 13. The transaction, which the plaintiff projected by virtue of the agreement of sale dt. 16.9.2004, for entire block is for an amount of Rs.21,99,675/- as disclosed in the evidence of PW No.1 in paragraph no.3. Naturally, one third 7 share would be to the extent of Rs.7,23,225/-. If the property, in the year 2004, could fetch for the seller Rs.7,23,225/- it is difficult to digest that as on 11.6.2007, the appellant herein could have the sale deed of the same property for inadequate sum of Rs.5,00,000/-. This also creates doubt on the conduct of the appellant in the manner as he has been prosecuting. An impression is generated, the appellant was aware of the transaction, and he had purchased a risk in the matter and, consequently, the sale transaction with a inadequate price though the potentiality of the property, in the year 2004 or 2007, was at a high pedestal. The sale deed of appellant will face all consequences of the pending suit. The plaintiff will get a good title against all persons whom the suit binds. 14. The sale transaction of predecessor-in- title of the appellant i.e. Original defendant nos. 5 and 6 from the legal representatives of Sundernath, (defendant No.1 to 4) could have been provided an attention to the appellant to look into the matter as to how their names are mutated in the revenue record and whether in the possession column they are shown as separately possessing property. The revenue record rebels against the appellant, as there is no division of the property in favour of defendant nos. 5 and 6 to have enjoyed specified demarcated one third area. 15. The publication caused by the appellant 8 herein dt.18.5.2007, will not have its adverse impact on the rights and contentions available to the plaintiff as there was already an agreement of sale of the plaintiff in existence, two third of the property was purchased by the plaintiff and, consequently, on 19.5.2007, the plaintiff has filed the suit. It was during the pendency of this suit, as stated earlier, the appellant has purchased the property on 11.6.2007 to frustrate plaintiffs agreement. The transaction of the appellant would definitely be hit by the impact and effect of Section 52 of the Transfer of Property Act as he has knowingly entered into the transaction of sale of the property. 16. The defendant did not adduce evidence but, for that purpose, the appellant himself to face the consequences, as there was an opportunity available to him to get himself impleaded and to take the bull by its horns, to show as to how the vendors have joined hands with the plaintiff. He could have impeached the conduct of his predecessor-in-title. However, such opportunity, which was available to the appellant, is not coined and he should thank himself for such omission. 17. Plaintiff was thoroughly cross examined by Counsel for defendants, though they did not step in the witness box. It is proved that the predecessor-in-title of the defendant nos. 5 and 6 i.e. Legal representatives of Sundernath (defendant nos. 1 to 4) had received 9 Rs.3,00,000/- as against receipt executed by them, for which issue no.1 is answered in the affirmative. 18. In the matter of Jagan Nath Vs. Jagdish Rai ( 1998 DGLS 502 : 1998(5) SCC 537), it is observed, the bona fide purchaser for value of the property shall not face the consequences arising out of earlier transaction and, this is more so, in the light of Section 19(b) of the Specific Relief Act. However, as stated earlier, the conduct of the appellant is to be blamed for all the events and eventualities and it is for him to ridiculously face the consequences of his deliberate commission in entering into transaction of sale of the property, with pending litigation. He was invited to appear and prosecute, which he did not. The benefits available, as a bona fide purchaser, in the fact situation, will not be available to be used, coined and accelerated by the appellant. 19. Learned Counsel for the plaintiff has placed reliance to the judgment in the matter of Usha Sinha V. Dina Ram and others ( 2007 (7) SCC 144). It revolves to purchase of the property in execution proceedings and the Honourable Lordships have observed that the doctrine of lis pendense will be applicable in the execution proceedings, giving impact of Order 21 Rule 97 and 102 of C.P.C. 20. Taking survey of all the facts, the 10 appellant has failed to make out a case for interference in the order under challenge. The learned Judge has, indeed, protected the appellant in clauses (3) and (5) of the order. Consequently, the appeal sans merit, it is dismissed. Civil Application, for production of documents, in the set of above facts, documents therein, having been perused, is allowed. . Heard the Counsel. Since the Counsel for the appellant wants to challenge the order and the Apex Court is on vacation, the judgment and order in Special Civil Suit No.92/2007, shall not be implemented for a period of two months from today. ( K.U.CHANDIWAL) JUDGE agp/office/fa1739-08