Yalagurdappa S/O Hanamappa Pujar vs Shivappa S/O. Gangappa Hundekar
2022 Latest Caselaw 857 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 19TH DAY OF JANUARY 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                     RSA.NO.5521/2013
BETWEEN

     YALAGURDAPPA S/O HANAMAPPA PUJAR,
     SINCE DECEASED BY HIS LEGAL
     REPRESENTATIVES

1.   SMT.PARVATEVVA W/O LATE YALAGURDAPPA PUJAR,
     AGED ABOUT 77 YEARS,
     OCC: HOUSEHOLD WORKS,
     R/AT: KERUR VILLAGE,
     TQ: BADAMI,
     DIST: BAGALKOT.

2.   HANAMANTHAPPA S/O. LATE YALAGURDAPPA PUJAR,
     AGED ABOUT: 58 YEARS,
     OCC: ADVOCATE and AGRICULTURE,
     R/AT: KERUR VILLAGE,
     TQ: BADAMI,
     DIST: BAGALKOT.

3.   SMT.DODDAVVA W/O SURESH KOPPA,
     AGED ABOUT: 51 YEARS,
     OCC: HOUSE-HOLD WORKS,
     R/AT: BIJAPUR,
     TQ: BIJAPUR,
     DIST: BIJAPUR.

                                              ... APPELLANTS

(BY SRI.MAHESH WODEYAR AND SRI.NAVEEN CHATRAD, ADVS.)
                                2




AND


1 . SHIVAPPA
    S/O. GANGAPPA HUNDEKAR,
    AGED 58 YEARS,
    OCC: AGRICULTURE,
    R/AT: KERUR VILLAGE,
    TQ: BADAMI,
    DIST: BAGALKOT.


2 . SMT.SHANTAVVA
    W/O SANGAPPA NEELAGUND,
    AGED 65 YEARS,
    OCC: HOUSE HOLD WORKS,
    R/AT: CHIKKNARAGUND,
    TQ: NARAGUND,
    DIST: GADAG.

                                                ... RESPONDENTS


      THIS APPEAL IS FILED UNDER 100 R/W. ORDER 42 RULE 1 OF

CPC., AGAINST THE JUDGEMENT & DECREE DTD:22.03.2013 PASSED

IN R.A.NO.31/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE &

JMFC., BADAMI, DISMISSING THE APPEAL, FILED AGAINST THE

JUDGMENT DTD:26.10.2010 AND THE DECREE PASSED IN O.S.

NO.118/2010 ON THE FILE OF THE CIVIL JUDGE AND JMFC., BADAMI,

REJECTING THE I.A. NO.II FILED U/O. 7 RULE 11 OF CPC.


      THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:
                                    3




                             JUDGMENT

The captioned Regular Second Appeal is filed by

unsuccessful plaintiffs who have suffered concurrent

judgments against them.

2. The appellants/plaintiffs filed a suit in

O.S.No.118/2010 seeking the following reliefs:

a) Hon'ble Court be pleased to declare that, the plaintiff is absolute owner of suit property and consequential relief of permanent injunction restraining the defendants, their agents and servants from causing obstructions to the plaintiff in his peaceful possession and enjoyment of the suit land.

b) That the Hon'ble Court be pleased to declare that, decree passed in O.S.No.121/1998 dated 30.08.2002 is null and void and set aside the said decree.

c) In the alternative if the decree cannot be set aside then, in that event sale consideration amount of Rs.80,000/- paid by the plaintiff to the defendant No.2 may be returned with 21% interest by way of damages from the date of the sale deed dated

28.07.1998 and changes of same may be kept on the suit land.

d) The Hon'ble Court be pleased to aard the cost of the suit to the plaintiff from the defendants.

e) The Hon'ble Court be pleased grant such other reliefs deems fit and proper in the circumstances may be granted.

3. The admitted facts in the present case on hand

would be relevant to decide the lis between the parties. It

is not in dispute that respondent No.1 filed a suit in

O.S.No.121/1998 seeking relief of specific performance of

contract against respondent No.2. The said suit came to be

decreed on 30.08.2002. Respondent No.2 who is the

vendor of the appellants herein preferred an appeal in

R.A.No.65/2002 which was also dismissed. Respondent

No.2 preferred regular second appeal before this court in

RSA.No.1248/2005, which also came to be dismissed.

Respondent No.1 having succeeded up to this court filed

E.P.No.12/2006. In the said execution proceedings, the

present appellants appeared and objected the execution

proceedings. The claim of appellants herein was considered

and rejected by the executing court. Feeling aggrieved by

the said order passed in the execution proceedings, the

present appellants filed writ petition before this court in

W.P.No.60462/2010. However, this court also dismissed

the writ petition by holding that the plaintiffs are not

precluded from filing any application in E.P.No.12/2006.

Probably, it is in this background, the present

appellants/plaintiffs who is the purchaser pendente lite has

filed the present suit seeking to declare him as the

absolute owner of the suit schedule property and further

declare that decree passed in O.S.No.121/1998 on

30.08.2002 as null and void and consequently set aside the

decree and in the alternative refund of earnest money of

Rs.80,000/-.

4. The trial court was called upon to adjudicate the

rights of the parties on I.A.II, which was filed by

respondent No.1/defendant No.1 who has sought rejection

of the plaint on the ground that there is no cause of action.

The trial court referred to the averments made in the plaint

and has recorded a categorical finding that the present suit

does not disclose cause of action. The trial court has also

observed that the appellants/plaintiffs noticed that the

proceedings is of the year 1998 itself. The trial court has

also taken judicial note of the fact that present appellants

did contest the execution proceedings filed by respondent

No.1/defendant No.1. On these set of reasoning, the trial

court was of the view that plaint is liable to be dismissed

under Order 7 Rule 11(d) of CPC and the plaintiffs have

failed to disclose cause of action in the plaint.

5. Aggrieved by the said judgment and decree,

appellants/plaintiffs preferred an appeal before the first

appellate court. The first appellate court on re-appreciation

of the material on record has concurred with the finding

recorded by the trial court. The first appellate court has

taken judicial note of the fact that respondent No.2 has

sold the suit property in favour of the appellants during the

pendency of the suit in O.S.No.121/1998 and therefore,

the transaction between the appellants and defendant No.2

is hit by the provisions of Section 52 of the Transfer of

Property Act. The first appellate court has also recorded a

categorical finding that the appellants/plaintiffs having

suffered an order in the execution proceedings which was

confirmed by this court in W.P.No.60462/2010 cannot

maintain the present suit and if permitted, the same

amounts to abuse of process. On these set of reasoning,

the first appellate court has concurred with the finding

arrived at by the trial court and consequently dismissed the

appeal. It is against these concurrent judgments and

decree of the courts below, the present regular second

appeal is filed.

6. Learned counsel for the appellants would

vehemently argue and contend before this court that

appellants/plaintiffs have acquired independent right

pursuant to registered sale deed executed by defendant

No.2 and since he was not arrayed as party, the decree

passed in O.S.No.121/1998 and consequent order passed

in the execution petition would not bind on them.

Therefore, the same are declared to be as null and void.

7. Heard the learned counsel for the appellants and

perused the judgments under challenge.

8. It is not in dispute that present appellants

purchased the suit scheduled property during the pendeny

of the suit in O.S.No.121/1998, which was filed by

respondent No.1/defendant No.1 seeking the relief of

specific performance of contract against defendant No.2. If

the appellants have purchased the suit schedule property

during the pendency of the suit, then they are bound by

the decree passed in O.S.No.121/1998. Section 52 of the

Transfer of Property Act is based on justice, equity and

good conscience. Appellant contention that he was not

party to O.S.No.121/1998 and hence, decree for specific

performance would not bind him is misconceived. If

alienation is during pendency of suit transferee would still

be a representative-in-interest of the judgment debtor.

Doctrine of lis pendens affects purchaser pendente lite not

because it amounts to notice but because the law does not

allow litigant parties to give to others, pending litigation,

rights to the property in dispute, so as to prejudice

agreement holder. The appellants/plaintiffs were not all

parties to O.S.No.1211998. The doctrine of lis pendens

under Section 52 of the Transfer of Property Act is not to

subject to Section 19(b) of Specific Performance Act.

Section 19(b) does not immunize pendente lite purchaser.

Therefore, they cannot maintain the present suit and this

aspect is rightly dealt by both the courts below. I do not

find any infirmity or illegality in the judgment and decree

passed by both the courts below.

9. No substantial question of law arises for

consideration in the present appeal. Accordingly, the

appeal stands dismissed.

Sd/-

JUDGE MBS/-