Har Narain (D) By Lrs vs Mam Chand (D) By Lrs. & Ors

2. Facts and circumstances giving rise to these appeals are that the defendant/respondent No.1-Mam Chand (since deceased through LRs.) (hereinafter called the `respondent') was the owner of land admeasuring 22 kanals situate within the Revenue estate of Village Asraka Majra, District Riwari, Haryana. The said respondent had mortgaged the entire land in favour of the predecessor-in-interest of the appellant, namely, Har Narain (since deceased and now represented through his LRs.) for Rs.7,000/-. The appellant was also put in possession of the said land. The respondent No.1entered into an Agreement for Sale of 8 kanals of the said property with the appellant for Rs.7500/- and he received Rs.200/- as earnest money in cash while a sum of Rs.7000/- to be adjusted as mortgage amount. However, 2 the said respondent No.1 executed the sale deed on 2.8.1971 in favour of respondent nos.2 to 6.

However, the sale deed executed in favour of the said respondents was registered on 3.9.1971. The suit was contested by the respondents on various grounds, however, the trial Court dismissed the suit vide judgment and decree dated 4.9.1973 on various grounds, inter alia, that sale deed deemed to have come into force on 2.8.1971, as the registration thereof dated 3.9.1971 would relate back to the date of execution which had 3 been prior to institution of the suit and thus, the doctrine of lis pendens would not apply. The said respondents 2 to 6 were bona fide purchasers for consideration without notice. Therefore, the sale deed in their favour was to be protected.

4. Being aggrieved, the appellant filed First Appeal No.508 of 1973, however, the same was dismissed by the First Appellate Court vide judgment and decree dated 22.3.1979. The appellant further approached the High Court by filing the Regular Second Appeal No.1545 of 1979 which was dismissed by the High Court vide judgment and order dated 9.10.2001. However, as none had appeared on behalf of the appellant on the said date before the High Court, the appellant filed the application to recall the said judgment and order dated 9.10.2001 under Order 41 Rule 19 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter called `CPC').

The said application was allowed vide order dated 9.9.2002 and the matter was heard afresh on merit on 4 the same day. The Court agreed with the proposition laid down by the courts below that principles of lis pendens would not apply in the facts and circumstances of this case as the sale deed has been executed before the filing of the suit though, the same was got registered subsequent to the institution of the suit. Hence, these appeals.

Admitted facts remain that the entire land admeasuring 22 kanals had been mortgaged by Mam Chand, respondent No.1 in favour of appellant vide deed dated 30.6.1970 and the appellant had been put in possession thereof. The possession of the land is with the appellant since 1970. An agreement to sell was entered into between the appellant and respondent No.1 on 25.5.1971. Sale deed was executed by the respondent No.1 in favour of respondent nos.2 to 6 on 2.8.1971 and 7 the said sale deed was got registered on 3.9.1971. The suit had been filed on 10.8.1971 i.e. subsequent to the date of execution of the sale deed and before the registration thereof on 3.9.1971. The trial court also passed an ex-parte order dated 10.8.1971 restraining the respondent No.1 from alienating the suit land, however it was subsequently modified vide order dated 31.8.1971.

emption though the legal issue involved therein remained the same. In view of the above, we are of the considered opinion that in spite of the fact that the registration of the sale deed would relate back to the date of execution, the sale can not be termed as complete until its registration and it becomes effective only once it stands registered. Thus, the fiction created by Section 47 of the Act, 1908, does not come into play before the actual registration of the document takes place.

13. In view of the above, it is evident that doctrine of lis pendens would apply in the present case as the registration of the sale deed was subsequent to filing of the Suit and subsequent purchasers i.e. respondent Nos.

15. The instant case is squarely covered by the aforesaid judgment, so far as this issue is concerned.

18. In view of the above, the appeals succeed and are allowed. The judgment and decree of the courts below are set aside. The respondents are directed to execute the sale deed in favour of the appellant to the extent of land, for which the agreement to sell was executed within a period of three months from today. However, in order to meet the ends of justice it is necessary to hold that 19 respondent Nos. 2 to 6 shall be entitled to receive the amount paid by them to the respondent No.1 as consideration along with 10% interest per annum on the same. The respondent No.1 shall be entitled to redeem the land over and above the extent of land in respect of which the agreement to sell had been executed, if any, in accordance with law. There shall be no order as to costs.