Himachal Pradesh High Court
Rsa No.318/2022 vs Kishori Lal & Anr on 14 May, 2025
2025:HHC:13951
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.318/2022.
Date of Decision: 14th May, 2025.
Vinay Kumar .....Appellants
Versus
Kishori Lal & Anr. .....Respondents.
Coram
The Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1
For the Appellant: Mr. Ashok K. Tyagi, Advocate.
For the Respondents: Mr. R.K. Bawa, Sr. Advocate with Mr.
Ajay Kumar Sharma, Advocate, for
respondent No.1.
Respondent No.2 proceeded against ex
parte.
Bipin Chander Negi, Judge (oral).
The Appellant is defendant No. 2 before the trial Court.
The present appeal has been filed under section 100 of the
Code of Civil Procedure (for short, CPC), for assailing the
judgement and decree dated 28.07.2022 passed by District
Judge, Kangra, in Civil Appeal No. 23-D/XIII/2021 whereby
Appeal/Cross Objections filed by Respondent No.2 and the
present Appellant, respectively against the Judgement and
Decree dated 30.09.2021 passed by the learned Senior Civil
Judge, Dharamshala in Civil Suit No. 33/14/2011 was
dismissed.
2. The plaintiff had initially filed a civil suit in the trial court
under Section 10 of the Specific Relief Act, 1963, seeking a
decree for specific performance of a contract dated 03.08.2009
Whether reporters of Local Papers may be allowed to see the judgment? YES
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for the sale of land owned by defendant No.1. The suit
pertained to Khata No. 224, Khatauni No. 457, Khasra No. 858,
measuring 0-18-00 hectares (181/362 share, i.e., 0-09-00
hectares), and Khata No. 225, Khatauni No. 458, Khasra No.
857, measuring 0-59-51 hectares (181/724 share, i.e., 0-14-88
hectares), situated in Mohal Dhann, Mauza and Tehsil Jawali,
District Kangra (Himachal Pradesh), as per the Jamabandi
2003-04. The total agreed consideration was Rs. 13,02,000/-
(at Rs. 2,10,000/- per kanal), with the plaintiff having already
paid Rs. 6,60,000/- (including an advance of Rs. 4,10,000/- and
Rs. 2,50,000/- on 10.08.2009). The remaining amount (Rs.
6,42,000/-) was to be paid within one year (02.08.2010), later
extended to 02.08.2012.
3. The plaintiff claimed that possession of the land was
handed over to him at the time of the agreement (03.08.2009),
and he was authorized to construct buildings on the land. His
wife was already a co-sharer in the property. Despite repeated
requests, defendant No.1 allegedly avoided executing the sale
deed. The plaintiff sent a telegraphic notice (01.08.2011) and a
registered notice (01.08.2011), asking defendant No.1 to
appear at the Tehsil Office, Jawali, on 02.08.2011 for the
execution of the sale deed. However, defendant No.1 failed to
appear, prompting the plaintiff to execute an affidavit before
the Executive Magistrate, Jawali.
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4. During the pendency of the suit, the trial court ordered
a status quo on 05.09.2011, but defendant No.1 allegedly
violated this order by executing a sale deed on 05.03.2012 in
favor of defendant No.2 for a portion of the suit land (Khasra
No. 857, 181/724 share, 0-14-88 hectares) for a fictitious
consideration of Rs. 10,00,000/-. The plaintiff claimed that he
had already informed the Sub-Registrar about the pending suit
and status quo order, but the sale deed was still registered.
Consequently, the plaintiff filed an application under Order 39
Rule 2-A CPC against defendant No.1 and the Sub-Registrar.
The plaintiff argued that the sale deed was a sham transaction
and did not affect his rights.
5. Defendant No.1 contested the suit, denying the
execution of any agreement to sell the land at Rs. 2,10,000/-
per kanal. He claimed that the actual agreed rate was Rs.
6,50,000/- per kanal and that the plaintiff had fraudulently
prepared undervalued agreements to evade taxes. Defendant
No.1, being illiterate and poor, alleged that he was misled. He
denied receiving any payment or handing over possession,
asserting that he remained the owner in possession, cultivating
the land seasonally. He also denied receiving any telegraphic or
registered notice and claimed that the plaintiff never requested
the execution of the sale deed.
6. Defendant No.2, the subsequent purchaser, claimed to
be a bona fide purchaser who had no knowledge of the prior
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agreement. He asserted that he had verified the revenue
records before purchasing the land for Rs. 10,00,000/- and took
physical possession of his share. He denied any collusion with
defendant No.1 and argued that the transaction was genuine.
7. The trial court framed the following issues on
16.05.2014 and 08.05.2019:
1. Whether the plaintiff is in possession of the suit
land and has raised construction thereon in view
of the contract of sale executed by defendant
No.1 on 03.08.2009 and revised on 30.07.2010?
(OPP)
2. Whether the plaintiff is entitled to specific
performance of the agreement? (OPP)
3. Whether the plaintiff has been ready and willing
to perform his part of the agreement? (OPP)
4. Whether the sale deed dated 05.03.2012
(executed by defendant No.1 in favor of
defendant No.2) is a fictitious and sham
transaction, made despite the injunction order,
and has no effect on the plaintiff's rights? (OPP)
5. Whether the plaintiff has no cause of action?
(OPD)
6. Whether the suit is properly valued for court fee
and jurisdiction? (OPD)
7. Whether the court has jurisdiction? (OPD)
8. Whether the plaintiff suppressed material facts?
(OPD)
9. Whether the suit is maintainable? (OPD)
10.Whether the suit is bad for non-joinder/mis-
joinder of necessary parties? (OPD)
11.Whether the suit is time-barred? (OPD)
12.Whether the agreements dated 03.08.2009 and
30.07.2010 were fraudulently prepared? (OPD)
12-A. Whether defendant No.2 is a bona fide
purchaser without notice? (OPD)
13.Relief.
8. The trial court decided issues 1 to 3 in favor of the
plaintiff, holding that he was in possession, had constructed on
the land, and was ready and willing to perform his part of the
contract. Issue 4 was partly affirmed, holding that the sale deed
in favor of defendant No.2 was not binding on the plaintiff. The
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remaining issues were decided against the defendants, and the
suit was decreed in favor of the plaintiff.
9. Defendant No.1 filed an appeal, challenging the
judgment on grounds that the agreements were fraudulent, the
plaintiff had no enforceable cause of action, and the decree was
based on conjectures. Defendant No.2 filed cross-objections,
arguing that he was a bona fide purchaser without notice and
that the trial court misinterpreted facts and law. Both the
appeal and cross-objections were dismissed with costs, leading
to the present appeal.
10. Heard counsels for the parties and perused the
Impugned judgements.
11. The principle of lis pendens, as laid down by the Hon'ble
Supreme Court in Guruswamy Nadar v. P. Lakshmi Ammal
(D) by Lrs. & Ors., (2008) 5 SCC 796 squarely applies to the
present case. The Hon'ble Apex Court held that where a suit for
specific performance is pending, any subsequent sale of the
property during the pendency of the litigation is governed by
the doctrine of lis pendens, and such a sale cannot override the
rights of the original agreement holder. The Court further
clarified that even if a subsequent purchaser claims protection
under Section 19(b) of the Specific Relief Act, the doctrine of lis
pendens will prevail if the sale was made after the filing of the
suit.
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12. Similarly, the Himachal Pradesh High Court in Raj
Singh & Others v. Maharaj Mal & Others (1996 (2) Civil
Court Cases 326) held that Section 52 of the Transfer of
Property Act (lis pendens) is absolutely clear--no immovable
property involved in a pending suit can be transferred in a
manner that affects the rights of the parties to the litigation.
13. In the present case, the plaintiff had filed the suit before
defendant No.1 executed the sale deed in favor of defendant
No.2 on 05.03.2012. The trial court had already granted a
status quo order on 05.09.2011, which defendant No.1 violated
by proceeding with the sale. Defendant No.2 failed to establish
that he was a bona fide purchaser without notice of the prior
agreement or the pending litigation. The sale deed (Ex. PW4/A)
shows that defendant No.2 paid Rs. 10,00,000/- to defendant
No.1, and defendant No.1 admitted in cross-examination that
he received this consideration. While the sale deed was duly
registered, it cannot be termed a sham transaction in the
strictest sense. However, given the doctrine of lis pendens, the
sale in favor of defendant No.2 cannot override the plaintiff's
rights under the prior agreement.
14. The trial court as well as the Appellate Court have
correctly and concurrently held that the plaintiff was entitled to
specific performance of the agreement dated 03.08.2009, and
the subsequent sale deed in favor of defendant No.2 was
subject to the outcome of the litigation.
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15. In light of the above findings, the appeal filed by
defendant No.1 and the cross-objections by defendant No.2 are
dismissed. The judgment and decree of the trial court and the
appellate court are upheld, confirming the plaintiff's right to
specific performance of the agreement to sell.
Pending miscellaneous applications, if any, also stand
disposed of.
(Bipin Chander Negi)
Judge
14th May, 2025
(T.B/Gaurav Rawat)
