IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 AS.No. 16 of 1996 ------------------- OS.97/1986 of SUB COURT, PATHANAMTHITTA .................... APPELLANT/PLAINTIFF: ------------------------- RAMAN CHELLAPPAN, APSARA SADANAM, AYYAM KOICKAL MURI, ERATHU VILLAGE, ADOOR TALUK. BY ADV. MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE MR.K.JAYAKUMAR RESPONDENTS/DEFENDANTS: -------------------------------- 1. N.GANGADHARAN, RESIDING AT KOCHUKALEEKAL VEETTIL, ERATHU MURI, ERATHU VILLAGE, ADOOR TALUK. *2. THOMAS THOMSON, (DIED LRs IMPLEADED) KALEEKAL PUTHENVEETTIL, -DO- -DO- -DO- 3. T.O.OOMMEN MUTHALALI, THEKKEVEETTIL, AYYAMKOICKAL MURI, ERATHU VILLAGE, ADOOR TALUK. 4. OOMMEN MUHTALALI PAUL, S/O.T.O.OOMMEN MUTHALALI, -DO- -DO- -DO- *5. GRACY THOMSON, W/O.THOMAS THOMSON, KALEEKKAL VEEDU, VADAKKEDATHU KAVU, ADOOR P.O., PATHANAMTHITTA DISTRICT. *6. SEENA THOMSON, D/O THOMAS THOMSON, -DO- -DO- -DO- -DO- *7. LEENA THOMSON, D/O.THOMAS THOMSON, -DO- -DO- -DO- -DO- (CNTD...2) AS.No. 16 of 1996 ::2:: **8. R.AJI KUMAR, S/O.RAVEENDRAN, AJI BHAVANAM, THUVAYOOR NORTH, MANAKKALA P.O., ADOOR P.O., PATHANAMTHITTA DISTRICT. *LRs OF DECEASED R2 AREIMPLEADED AS ADDL.R5 TO R7 VIDE ORDER DATED 4.3.2008 IN I.A.NO.3046/2005. ** ADDL.R8 IS IMPLEADED AS PER ORDER DATED 12.3.2008 IN I.A.NO.4189/2007. ADV. MR.K.RADHAKRISHNAN, SENIOR ADVOCATE FOR R1 MR.M.NARENDRA KUMAR FOR R2 MR.J.JULIAN XAVIER FOR ADDL.R8 MR.FIROZ K.ROBIN FOR ADDL.R8 MR.S.SUDHISH KUMAR FOR ADDL.R5 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 16 of 1996 ORDER ON C.M.P.NO.83/1996 IN A.S.NO.16/1996 DISMISSED. 23.2.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ----------------------------------- A.S.No.16 of 1996 --------------------------------- Dated this the 23th day of February, 2010 J U D G M E N T The plaintiff in O.S.No.97 of 1986 on the file of the Sub Court, Pathanamthitta is the appellant. Suit is one for declaration of title and for recovery of possession with mesne profits. The court below held that the plaintiff is not entitled to the reliefs sought for. Hence, the plaintiff preferred the above appeal. Parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. Plaint schedule property, belong to Bhargavaraman Unnithan, having an extent of 6¼ cents and a building therein. The suit was filed for declaration of plaintiff's title on the strength of Ext.A1 sale deed dated 10.4.1980, to set aside the agreement for sale dated 24.7.1978 and the registered sale deed dated 2.2.1985 pursuant to the said agreement, for recovery of possession of the plaint schedule property and for other incidental reliefs. The first defendant is a tenant of a portion of the building. According to the plaintiff, the second defendant is occupying a portion of the building as a tenant of the first A.S.No.16 of 1996 2 defendant that the second defendant is paying rent to the first defendant and that the first defendant is a tenant who was inducted by the original owner of the property, Bhargavaraman Unnithan. 3. The contest is between the plaintiff and the second defendant. The second defendant in the written statement pleaded that on 24.7.1978 Bhargavaraman Unnithan had executed an agreement in favour of the second defendant agreeing to sell the plaint property for a consideration of Rs.20,000/-. Rs.1,000/- was received as advance. The period fixed for execution of the sale deed is one year. Ext.A6 is the copy of the registered agreement. According to the second defendant, the property was put in possession pursuant to Ext.A6 agreement. Since the first defendant was continuing as a tenant of the original landlord, his possession was not disturbed at the time of Ext.A1 agreement. The first defendant was occupying two rooms and the adjoining property. After the property was taken possession pursuant to the agreement, one room was let out to the fourth defendant and he was doing finance business in the said room. In the written statement there is reference to the A.S.No.16 of 1996 3 various disputes fought between the landlord, plaintiff, second defendant and the children of landlord. The second defendant also contended that the sale deed in favour of the plaintiff was executed by Bhargavaraman Unnithan in violation of the order in I.A.No.563 of 1978 in O.S.No.237 of 1978; that the sale deed is not supported by consideration, the same had not came into force and that the said sale deed was obtained by him knowing fully well that the property was in the possession of the second defendant on the basis of Ext.A6 agreement. According to the second defendant, Bhargavaraman Unnithan was not competent to execute Ext.A1 sale deed in favour of the plaintiff and the sale deed is hit by lis pendens; that the second defendant is entitled to the protection under Section 53(A) of the Transfer of Property Act; that the averment in the plaint that the plaintiff is in possession of the property pursuant to Ext.A1 sale deed is incorrect; that the plaint schedule property and the building was surrendered to the second defendant on the date of Ext.A6 agreement and that on 2.2.1985 after the dismissal of O.S.No.237 of 1978, Bhargavaraman Unnithan executed a sale deed in favour of the second defendant after receiving the A.S.No.16 of 1996 4 balance sale consideration. Ext.B2 is the said sale deed dated 2.2.1985. On the basis of the aforesaid contentions the second defendant prayed for dismissal of the suit. 4. The plaintiff claimed title over the suit property on the strength of Ext.A1 sale deed. The second defendant claimed title over the very same property on the strength of Ext.A6 agreement for sale and Ext.B2 sale deed executed pursuant to Ext.B6 agreement for sale. There were few litigations between the parties and the landlord. Ext.A6 agreement for sale was executed by the landlord Bhargavaraman Unnithan on 24.7.1978. The children of Bhargavaraman Unnithan filed O.S.No.237 of 1978 for a perpetual injunction restraining their father from alienating the plaint schedule property to any third persons. An interim order of injunction dated 14.11.1978 was passed in the petition filed for temporary injunction. The first respondent in the I.A. was Bhargavaraman Unnithan and the second respondent is the second defendant in the present suit. The suit was dismissed by judgment dated 31.1.1985. It is to be noted that the temporary injunction order passed in the suit was in force through out the pendency of the suit right from 1978 till its A.S.No.16 of 1996 5 dismissal in 1985. 5. The next suit is O.S.No.38 of 1980. The said suit was filed by the second defendant in this case as plaintiff against Bhargavaraman Unnithan to restrain him from alienating the property to any third persons other than the plaintiff in the suit. Exts.B8 and B9 are the copies of the plaint and decree respectively in O.S.No.38 of 1980. The said suit was filed by the second defendant apprehending that Bhargavaraman Unnithan may at any time alienate the property to third persons. Ext.B8 plaint referred to Ext.A6 agreement for sale and further referred to the suit (O.S.No.237 of 1978) filed by the children of Bhargavaraman Unnithan against Bhargavaraman Unnithan and the interim order passed in that case. It is also stated in the plaint that in the light of the interim order of injunction passed in O.S.No.237 of 1978, the plaintiff (second defendant herein) was unable to obtain the sale deed from Bhargavaraman Unnithan. The civil court allowed the plaint claim and granted a decree restraining Bhargavaraman Unnithan from alienating the property to third persons other than the plaintiff and further restrained the defendant from trespassing into the property or taking any A.S.No.16 of 1996 6 usufructs from the property. 6. The next suit is O.S.No.231 of 1980 filed by the present plaintiff. The plaintiff in the suit originally filed O.S.No.231 of 1980 for eviction against the first and second defendants. Ext.B11 is the judgment in O.S.No.231 of 1980. The suit was filed on the allegation that the plaintiff had acquired title and possession over the plaint schedule property as per Ext.A1 sale deed. The prayer in the suit was for eviction with arrears of rent and for permanent injunction restraining the first defendant from trespassing into the plaint schedule item No.2 and constructing a shed therein. The civil court in that case examined the question whether the first defendant is a tenant and whether there is rent arrears due from the first defendant to the plaintiff. It is the plaintiff's case that he started occupation of the building from the date of sale deed. The civil court held that the first defendant is in occupation of the building as a tenant even prior to the execution of Ext.A1 sale deed; that there is no rental arrangement between the plaintiff and the first defendant; and that the first defendant is occupying a portion of the building situated in the property. The civil court further held that the first A.S.No.16 of 1996 7 defendant had not taken on rent the plaint schedule building from the plaintiff and that the first defendant had taken a portion of the building from the previous owner of the building namely, Bhargavaraman Unnithan. The third defendant in the said suit (the 2nd defendant in the present suit) contended that two rooms and one vadava is in his possession and enjoyment pursuant to the sale agreement. The civil court observed that the issue regarding whether the third defendant in the said suit obtained possession of the plaint schedule item No.2 and an agreement of sale entered into between him and Bhargavaraman Unnithan is left open to be considered in a suit for recovery of possession on the basis of title. The civil court held that there is no landlord- tenant relationship between the plaintiff and the first defendant and therefore there is no chance of the first defendant committing default in payment of rent as stated in the plaint. The was dismissed. The plaintiff filed an appeal as A.S.No.20 of 1984. During the pendency of the appeal the appellant sought permission of the court to withdraw the suit and accordingly, the suit was withdrawn with liberty to file a fresh suit. A.S.No.16 of 1996 8 7. Parties adduced oral and documentary evidence. PWs 1 & 2 and DWs 1 to 4 were marked on the respective side. Exts.A1 to A7 and B1 to B19 were marked. 8. Ext.A6 is the first document. It is dated 24.7.1978. As per Ext.A6, the owner of the property, Bhargavaraman Unnithan agreed to sell the plaint schedule property to the second defendant for a sale consideration of Rs.20,000/-. He received an advance amount of Rs.1,000/-. Before executing the sale deed in favour of the 2nd defendant as per the terms and conditions stated in Ext.A6, the children of Bhargavaraman Unnithan, filed O.S.No.237 of 1978. In the light of the interim order passed restraining Bhargavaraman Unnithan from alienating the property to any third persons, no sale deed was executed pursuant to Ext.A6 agreement. The order of injunction remained in force till the disposal of the said suit, i.e., from 1978 to 31.1.1985. While the order of injunction in the said suit was in force, Bhargavaraman executed Ext.A1 sale deed on 10.4.1980 in favour of the present plaintiff, who on the strength of the said sale deed marked as Ext.A1, filed the present suit for declaration of title and recovery of possession. I may again refer to the suit A.S.No.16 of 1996 9 instituted by the second defendant as plaintiff, namely, O.S.No.38 of 1980. The prayer sought for is for perpetual injunction to restrain Bhargavaraman Unnithan from alienating the property to anybody else other than the second defendant, who is the plaintiff in the said suit. Ext.B9 is the copy of the decree passed in the said suit. Ext.B9 decree restrained Bhargavaraman Unnithan from alienating the property to anybody other than the plaintiff (second defendant). Ext.B9 decree was passed on 21.6.1980. The defendant in the said suit is the land owner, Bhargavaraman Unnithan. Ext.A1 sale deed was executed in favour of the plaintiff during the pendency of O.S.No.38 of 1980. In O.S.No.38 of 1980, the trial court passed an interim order of injunction restraining the defendant/prior owner from alienating the property to any person other than the plaintiff. Subsequently, the said order was made absolute. The land owner challenged the interim order of injunction in C.M.A.No.7 of 1980 before the appellate court. He also sought for interim stay of the injunction order passed by the trial court. The appellate court on 9.4.1980 passed the interim order. Ext.A7 is the interim order passed by the appellate court on A.S.No.16 of 1996 10 9.4.1980 staying the operation of interim order of injunction passed by the trial court, till the disposal of the C.M.Appeal. The land owner on the following day i.e., on 10.4.1980, executed Ext.A1 sale deed in favour of the plaintiff. 9. The aforesaid facts are narrated for deciding the issues in the present case. Bhargavaraman Unnithan executed Ext.A1 sale deed in favour of the plaintiff immediately after securing an interim stay of operation of the order of interim injunction passed by the trial court restraining him from alienating the property to anybody else other than the plaintiff in the said suit, who is the second defendant in the present suit. The conduct of Bhargavaraman Unnithan is very relevant to mention. He had executed Ext.A1 sale deed in favour of the plaintiff immediately on the following day after obtaining a stay order from the appellate court in the case filed by the second defendant as plaintiff. He executed the sale deed in gross violation of the order of injunction then in force in O.S.No.237 of 1978. As I have already mentioned the said suit was filed by the children of Bhargavaraman Unnithan for perpetual injunction. The interim order was in force for a period of 7 years i.e., from 1978 to 1985. A.S.No.16 of 1996 11 Ext.A1 sale deed dated 10.4.1980 was executed in violation of the order of injunction passed in the suit, namely, O.S.No.237 of 1978. It is relevant to note that all the suits originated only because of Ext.A6 agreement executed by Bhargavaraman Unnithan in favour of the present second defendant. 10. The trial court held that Ext.A1 sale deed was executed by Bhargavaraman Unnithan in favour of the present plaintiff during the pendency of O.S.No.38 of 1980 filed by the second defendant as against Bhargavaraman Unnithan. O.S.No.38 of 1980 was filed on 3.3.1980 and was decreed on 21.6.1980. Ext.A1 sale deed is executed during the pendency of the said suit. The trial court held that the suit is hit by lis pendens. 11. The evidence and testimonies of the plaintiff, PW1 and the testimonies of defendants would show that the plaintiff has got knowledge about the agreement for sale executed in favour of the second defendant and further fact that he was put in possession of the property. The trial court held that the plaintiff got the sale deed executed fully knowing that there was a prior agreement for sale between the land owner and the second A.S.No.16 of 1996 12 defendant and series of litigations were going on between the parties for appropriate reliefs. 12. Learned counsel for the appellant contended that the principles of lis pendens is not applicable to the case. According to the learned counsel, as between the parties to the transaction in the case of a transfer pendente lite, the sale is perfectly valid and operates to vest the title of the transferor in the transferee. The plaintiff was unable to prove that he started enjoying the property from the date of Ext.A1 sale deed. He also failed to prove that he received rent from the tenants from the date of Ext.A1 sale deed. 13. O.S.No.38 of 1980 was decreed. Therefore, the land owner cannot transfer or otherwise deal with the property which is the subject matter of the said suit so as to affect the right of the second defendant herein who got a favourable decree in O.S.No.38 of 1980. The case falls squarely under Section 52 of the Transfer of Property Act. The right of plaint schedule property is directly in question in O.S.No.38 of 1980. Bhargavaraman Unnithan had no right to alienate the property or otherwise deal with it so as to affect the right of the plaintiff in A.S.No.16 of 1996 13 the said suit. Bhargavaraman Unnithan and the plaintiff are the parties to the suit. Therefore, this is a case where Ext.A1 transfer in favour of the plaintiff is hit by lis pendens. Moreover, the plaintiff's evidence would show that the second defendant was put in possession of the plaint schedule property pursuant to Ext.A6 agreement. The oral evidence tendered by the first defendant, second defendant and other witnesses show that the second defendant came into possession of the property pursuant to Ext.A6 agreement for sale; that the first defendant, the original tenant continues to occupy two rooms in his capacity as a tenant and that after getting possession of the property the second defendant leased out one room to the 4th defendant. The second defendant contended before the court that he is entitled to protection under Section 53(A) of the Transfer of Property Act, 1882. Trial court held that since the suit itself is hit by lis pendens, the plaintiff is not entitled to get any relief claimed in the plaint. Trial court observed that the question to be determined is as to whether the plaintiff has got title to the property and whether the plaintiff is entitled to recovery the property from the defendants. The trial court held that since the A.S.No.16 of 1996 14 suit is hit by lis pendens the plaintiff cannot claim any right over the property. The question of protection under Section 53(A) of the Transfer of Property Act was not considered by the court below finding that the said question does not arise for consideration since the suit is not filed by the second defendant for declaration of his title. The oral evidence tendered by the second defendant, by the tenants in occupation namely, 1st and 4th defendants and DW3, all lead to the irresistible conclusion that the second defendant came into possession of the property pursuant to Ext.A6 agreement for sale and he is entitled to protection under Section 53(A) of the Transfer of Property Act. Since the scope of the suit is limited to the declaration of title and recovery of possession claimed in the plaint, naturally, the trial court did not go into the question of protection under Section 53(A) of the Transfer of Property Act. 14. The learned senior counsel for the appellant relying on the decisions reported in Dhanna Singh and Others v. Baljinder Kaur and Others (AIR 1997 SC 3720), Nagubai Ammal and Others v. B.Sharma Rao and others (AIR 1956 SC 593), K.A.Khader v. Rajamma John Madathil and others A.S.No.16 of 1996 15 (AIR 1994 Kerala 122) submitted that the effect of Section of 52 is not to wipe it out altogether but to subordinate it on the rights based on the decree in the suit. According to him, as between the parties to the transaction in the case of a transfer pendente lite, the sale is perfectly valid and operates to vest the title of the transferor in the transferee. The learned counsel also quoted paragraph 25 of the Apex Court decision in Nagubai Ammal's (supra) case. It reads thus: “This contention gives no effect to the words “so as to affect the rights of any other party thereto under any decree or order which may be made therein”, which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto.” The learned counsel also relied on the decision reported in K.A.Khader's case (supra). In that case this Court held thus: “The effect of the doctrine of lis pendens as embodied in Section 52 of the Transfer of Property Act is not to annul voluntary transfers effected by the parties to a suit but only to render it subservient to the rights of the parties thereto under the decree or order which may be made in that suit. Its effect is A.S.No.16 of 1996 16 only to make the decree passed in the suit binding on the transferee if he happens to be a third person even if he is not a party to it. The transfers will remain valid subject, however, to the result of the suit.” The said decision explained the legal principles and scope and ambit of Section 52 of the Transfer of Property Act. The applicability of Section 52 of the Transfer of Property Act depends on facts of each case. Whether a particular transfer is hit by lis pendens or not depends squarely on the facts of a particular case. The matter was examined applying the principles stated in the aforesaid decisions. The facts discussed in the preceding paragraphs show that the Ext.A1 transfer effected during the pendency of O.S.No.38 of 1980 and the effect of the decree passed in the said suit would amply testify the fact that the right of immovable property is directly and specifically in question in the suit and the transfer of the property during the pendency of the suit affected the right of the second defendant who is the plaintiff in the suit. After finding that the second defendant's right will be affected if alienations are made by the owner Bhargavaraman Unnithan, Ext.B9 decree was passed in the suit restraining him from alienating the property to anybody other A.S.No.16 of 1996 17 than the plaintiff in the said suit who is none other than the second defendant herein. So the passing of the decree in favour of the plaintiff in the said suit would show that the transfer effected pending suit is hit by the principles of lis pendens embodied under Section 52 of the Transfer of Property Act. Learned counsel for the second defendant relied on the decision reported in Guruswamy Nadar v. P.Lakshmi Ammal and Others (2008(5)SCC 796). In paragraph 13, the scope and ambit of principles of lis pendens is stated. Paragraph 13 reads thus: “13. Normally, as a public policy once a suit has been filed pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject-matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.” In the decision reported in Sanjay Verma v. Manik Roy and Others (2006 (13) SCC 608) the Apex Court held as follows: A.S.No.16 of 1996 18 “The principles specified in Section 52 of the TP Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the TP Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated