Gujarat High Court

Jagdishbhai Maganbhai Desai vs Shardaben D/O Maganlal ... on 11 October, 2023

Bench: Devan M. Desai

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       C/CA/525/2023                                ORDER DATED: 11/10/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CIVIL APPLICATION (FOR LEAVE TO APPEAL) NO. 525 of 2023

                       In F/FIRST APPEAL NO. 13186 of 2023

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                     JAGDISHBHAI MAGANBHAI DESAI
                                Versus
                  SHARDABEN D/O MAGANLAL SHANKARLAL
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Appearance:
MR N R DESAI(6504) for the Applicant(s) No. 1,2
MR SP MAJMUDAR(3456) for the Applicant(s) No. 1,2
MR JF MEHTA(461) for the Respondent(s) No. 2,3,4,5
NOTICE SERVED BY DS for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                Date : 11/10/2023

                                  ORAL ORDER

1. Heard learned advocate Mr.S.P.Majmudar for the

applicants and Mr.J.F.Mehta learned advocate for respondent

Nos.2 to 5.

2. The applicants seek leave to prefer appeal against

the judgment and order dated 02.02.2023 passed by the

learned City Civil Court No.4, Ahmedabad in Civil Suit

No.2557 of 2000.

3. The facts in brief are as under:-

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3.1 The present respondent No.1 had filed one

declaration suit bearing 2557 of 2000 praying for the

possession of the land bearing survey No.1552 at village Vatva,

Tal. Dascroi, Dist. Ahmedabad. The respondent No.1 has

further prayed for a decree restraining the respondent Nos. 2

to 5 i.e. original defendant Nos.1 to 4 from entering the suit

land.

3.2 The allegation of the respondent No.1 is that, the

respondent Nos.2 to 5 are the trespassers. The suit came to be

dismissed for default on 02.09.2011 as the respondent No.1

remained absent. The said suit came to be restored on

26.11.2021. However, the respondent No.1 did not lead any

evidence and her right to lead the evidence was closed on

08.08.2022.

3.3 The respondent Nos.2 to 5 filed their written

statement and also filed a counter claim-cum-injunction on

18.08.2008, wherein the sale deed executed by respondent no.1

in favour of one Gemarbhai Motibhai Desai bearing registration

No.6724 dated 09.07.2008 was challenged and prayed for

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setting aside the same.

3.4 The learned trial Court dismissed the suit of

respondent No.1 and allowed the counter claim of respondent

Nos.2 to 5 and further granted a decree of permanent

injunction against the new purchaser Gemarbhai Motibhai

Desai and respondent No.1. It was further decreed that the sale

deed dated 09.07.2008 executed in favour of Gemarbhai

Motibhai Desai vide registration No.6724 came to be declared

null and void.

3.5 The present respondent Nos.2 to 5, also preferred a

Civil Suit No.657 of 2017 before the learned City Civil Court

Ahmedabad, in April, 2017, the said suit is pending as on date

against Madhavlal Chhagandas, Gamerbhai Motibhai Desai and

the present applicants. The said suit is for declaration and

injunction. The said suit is pending for cross-examination of

the plaintiffs.

4. Learned Advocate for the applicants has submitted

that the applicants are directly affected by the impugned

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judgment and decree passed on 02.02.2023 in Civil Suit

No.2557 of 2000, whereby the sale deed dated 09.07.2008 in

favour of Gemarbhai Motibhai Desai has been declared null

and void. The applicants are subsequent title holder and hence,

they are aggrieved by the judgment and decree.

4.1 Learned Advocate for the applicants has submitted

that the suit land was sold by respondent No.1 to Gemarbhai

Motibhai Desai on 09.07.2008 by registered sale deed, and

thereafter, the applicants purchased the suit land from

Gemarbhai Motibhai Desai vide registered sale deed dated

06.02.2010. Entry of sale deed dated 06.02.2010 also been

mutated in the revenue record vide Entry No.15795.

4.2 It is further submitted by the learned Advocate that

the applicants that the applicants were not knowing about the

Civil Suit No.2557 of 2000 pending for its adjudication.

4.3 It is further submitted by learned advocate for the

applicants that the said Gemarbhai Motibhai Desai has expired

on 17th March, 2021 and death certificate has been placed on

record at page No.153. It is submitted by learned Advocate for

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the applicants that in the counter claim at Exhibit-22, it is

specific Reference made by respondent Nos.2 to 5 that the

registered sale deed has been executed on 09.7.2008 by

respondent No.1 in favour of Gemarbhai Motibhai Desai and

relief of said injunction and cancellation of sale deed was

prayed for. It is submitted that though respondent Nos. 2 to 5

knew that the sale deed dated 09.07.2008 has been executed in

favour of Gemarbhai Motibhai Desai, however, said Gemarbhai

Motibhai Desai was not impleded as a defendant.

4.4 It is submitted that when a counter claim filed by

the defendants, the defendants become plaintiffs so far as the

counter claim and reliefs claimed thereunder. Since, the

present applicants are successor in title of Gemarbhai Motibhai

Desai ought to have been joined as a defendant, and more

particularly, when the respondent Nos. 2 to 5 have filed a

declaratory suit bearing Civil Suit No.657 of 2017 against the

present applicants as well as against Gemarbhai Motibhai Desai

and others in the month of April, 2017.

4.5 It is further submitted that this fact was suppressed

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before the Court below and keeping the Court in dark, the

decree for cancellation of registered sale deed dated 09.07.2008

was obtained. Thus, the applicants are directly or indirectly

adversly affected by the order impugned.

4.6 Learned advocate for the applicants has placed

reliance on the following decisions in support of his

contentions:-

(i) In the case of Najma Ali Nadvi & 2 vs. Shivdasangar Co-op Housing Society & 10 passed by the Co-ordinate Bench of

this Court on 21.06.2014 in Civil Application (Leave to Appeal) No.6476 of 2014 in Second Appeal (Stamp Number) No.107 of 2014.

(ii) In the case of Thomson Press (India) Limited Vs. Nanak Builders and Investors Private Limited and Others passed by

the Hon'ble Supreme Court on 21.02.2013 reported in (2013) 5 SCC 397 and

(iii) In the case of Jatan Kanwar Golcha vs. Golcha Properties Private Limited passed by the Hon'ble Supreme Court

on 16.12.1970 reported in 1970(0)AIJEL-SC12764.

5. Per contra, learned advocate Mr.J.F.Mehta for

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respondent Nos.2 to 5, has vehemently objected and submitted

that respondent Nos. 2 to 5 are in possession of the suit land

and even from the reliefs claimed in Civil Suit No. 2557 of

2000, it could be gathered that the possession is with

respondent Nos.2 to 5. He has further drawn the attention of

this Court from the various clause from sale deed dated

09.07.2008 wherein factual incorrect statement made with

regard to possession and pending cases. He has further

submitted that respondent No.1 has suppressed about the

litigation in the registered sale deed. He has submitted that

Gemarbhai Motibhai Desai purchased the suit land with an

open eye and he has not challenged the impugned judgment

dated 02.02.2023 passed in Civil Suit No.2557 of 2000.

5.1 It is the submission of learned advocate for the

respondents that by way of this application, the applicants

want a back door entry since they are not a bonafide

purchaser and they do not have any right by way of

challenging the judgment and decree dated 02.02.2003. He has

relied upon Section 52 of The Transfer of Property Act, 1882

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(for short 'the Act'), the said Section is reproduced

hereinunder:-

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 immoveable 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 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]

6. By referring Section 52 of the Act, learned Advocate

for the respondents has submitted that the property cannot be

transferred during the pendency of any suit or proceedings

without the leave of the Court so as to affect the rights of any

other parties under any decree or order which may be made in

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the proceedings.

7. Thus, the contentions of learned advocate for

respondent Nos.2 to 5 is that, Gemarbhai Motibhai Desai does

not get any title to the suit property since the transfer is

pending the suit and that too, without the permission of the

Court.

8. Learned Advocate for the applicants has tried to

meet with the submission of learned Advocate for respondent

Nos. 2 to 5 with regard to Section 52 of the Act. By referring

Section 52 of the Act, learned Advocate for the applicants

submits that Section 52 of the Act does not take away the

right to challenge any decree or order when the transfer has

taken place pending the suit.

9. In support of his contentions, he has relied upon a

decision of Thomson Press (India) Limited (supra), wherein, in

paragraph Nos.49 to 53, the Hon'ble Apex Court has observed

hereinunder:-

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"49. The second aspect which the proposed judgment succinctly deals with is the effect of a sale pendete lite. The legal position in this regard is also fairly well settled. A transfer pendete lite is not illegal ipso jure but remains subservient to the pending litigation. In Nagubai Ammal & Ors. v. B. Shama Rao & Ors. AIR 1856 SC 593, this Court while interpreting Section 52 of the Transfer of Property Act observed:(AIR p.602, para 25) "25...The words 'so as to affect the rights of any other party thereto under any decree or order which may be made therein', 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."

50. To the same effect is the decision of this Court in Vinod Seth v. Devinder Bajaj (2010) 8 SCC 1 where this Court held that Section 52 does not render transfers affected during the pendency of the suit void but only render such transfers subservient to the rights as may be eventually determined by the Court. The following passage in this regard is apposite: (SCC p.20, para 42) "42. It is well settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit."

51. The decision of this Court in A. Nawab John & Ors. v. V.N. Subramanyam (2012) 7 SCC 738 is a recent reminder of the principle of law enunciated in the earlier decisions. This Court in that case summed up the legal position thus: (SCC p.746, para 18) "18 ........The mere pendency of a suit does not prevent one of the parties from dealing with the

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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 with the permission of the court."

52. We may finally refer to the decision of this Court in Jayaram Mudaliar v. Ayyaswami and Ors. (1972) 2 SCC 200 in which were extracted with approval observations made on the doctrine of lis pendens in "Commentaries of Laws of Scotland, by Bell. This Court said: (SCC p.217, para 43)

"43...........Bell, in his commentaries on the Laws of Scotland said that it was grounded on the maxim: "Pendente lite nibil innovandum". He observed:

It is a general rule which seems to have been recognised in all regular systems of jurisprudence, that during the pendence of an action, of which the object is to vest the property or obtain the possession of real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced."

53. There is, therefore, little room for any doubt that the transfer of the suit property pendete lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent Court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent Court may issue in the suit against the vendor.

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10. On close reading of the above observations, the

Apex Court has observed that transfer of the suit property

pendente lite is not void ab initio and that the purchaser of

any such property if bargains the subject to rights of the

plaintiffs in the pending suit and the transfer pendente lite is

not illegal ipso jure but remains subservient to the pending

litigation.

11. The submissions of the learned Advocate for the

applicants is that, all the grievances raised by respondent

Nos.2 to 5 are germane to the main appeal and the objections

raised by the learned advocate for the respondents are not

material for deciding whether any leave to be granted or not.

12. Having considered the rival submissions, I am of

the view that, leave to appeal is required to be granted to the

applicants as the applicants have direct interest in the suit

land. At this juncture, conduct of respondent Nos.2 to 5 cannot

be given a goby. In the counter claim though the respondent

Nos. 2 to 5 wherein knowledge that the registered sale deed

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dated 09.07.2008 has been executed in favour of Gemarbhai

Motibhai Desai and for the same transaction, respondent Nos.2

to 5 have filed a substantive suit bearing No.657 of 2017.

13. The record reveals that Gemarbhai Motibhai Desai

has expired on 17the March, 2021 is also an important aspect

while considering the present application. Even during the

course of hearing of Civil Suit No.2557 of 2000, it seems that

it was not brought to the notice of the trial Court that a

substantive suit bearing No.657 of 2017 has been instituted by

respondent Nos.2 to 5 challenging the said transactions. It is

also to be observed that the learned trial Court while deciding

the counter claim of respondent Nos.2 to 5 has completely lost

site of the proposition of law that the party, who seeks any

relief by way of a counter claim is a plaintiff of a counter

claim and it was the duty of respondent Nos.2 to 5 to join

Gemarbhai Motibhai Desai as a party defendant. The learned

trial Court has misread the provisions of law in observing that

the respondent No.1 has failed to join Gemarbhai Motibhai

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Desai. On perusal of reliefs sought for in Civil Suit No.2557 of

2000, it appears the the reliefs were against the respondent

Nos.2 to 5.

14. This Court while deciding the present issue has

considered the decision of Co-ordinate Bench in the case of

Najma Ali Nadvi (supra) passed in Civil Application (Leave to

Appeal) No.6476 of 2014 in Second Appeal (Stamp Number)

No.107 of 2014 wherein, in para-5, this Court has observed

hereinunder:-

"5. In Smt. Jatan Kanwar Golcha vs. M/s. Golcha Properties Private Ltd. (In liquidation) [AIR 1971 SC 374] the Supreme Court observed and held that " it is well settled that a person who is not a party to the suit may prefer an appeal with the lave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment."

15. In the case of Jatan Kanwar Golcha (supra), in para-3,

the Hon'ble Supreme Court has observed as under:-

"3. ........... it would be a travesty of justice if a party is driven to file a suit which would involve long and cumbersome procedure when an order has been made directly affecting that party and redress can be had by filing an appeal which is permitted by law. It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be

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prejudicially affected by the judgment."

16. There is nothing on record which suggests that the

applicants were aware about the pending proceedings and that

they purchased with knowledge of pending proceedings.

17. From the facts pleaded and having considered the

submissions of learned advocate of both the sides, it could not

be said that the applicants are not affected by the judgment

and decree dated 02.02.2023. Applicants are given liberty to

challenge the judgment and decree, in which, they are not

party.

18. It is needless to observe that the observations made

hereinabove are only limited to the present application.

19. In this background of the factual aspects, this Court