Madhya Pradesh High Court
Ganga Prasad Kurariya ( Since ... vs Smt Siya Bai ( Since Dead) W/O ... on 19 July, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 19 th OF JULY, 2023
MISC. PETITION No. 3956 of 2023
BETWEEN:-
1. G A N G A PRASAD KURARIYA ( SINCE DEAD)
THROUGH LRS SATIS KURARIYA S/O GANGA
PRASAD KURARIYA R/O H NO 232 SANJEEVANI
NAGAR KURARIYA MARKET GARHA JABALPUR
(MADHYA PRADESH)
2. ASHISH KURARIYA S/O LATE GANGA PRASAD
KURARIYA, AGED ABOUT 46 YEARS, R/O H.NO. 232
SANJEEVANI NAGAR KURAIYA MARKET GARHA
JABALPUR (MADHYA PRADESH)
3. MANISH KURAIYA S/O LATE GANGA PRASAD
KURARIYA, AGED ABOUT 44 YEARS, R/O H.NO. 232
SANJEEVANI NAGAR KURAIYA MARKET GARHA
JABALPUR (MADHYA PRADESH)
4. GIRISH KURARIYA S/O LATE GANGA PRASAD
KURARIYA, AGED ABOUT 40 YEARS, R/O H.NO. 232
SANJEEVANI NAGAR KURAIYA MARKET GARHA
JABALPUR (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI MANOJ SANGHI - ADVOCATE)
AND
1. SMT SIYA BAI ( SINCE DEAD) W/O BHAGWAN
SINGH PATEL THROUGH LRS BHAGWAN SINGH
PA T E L BALKISHAN PATEL ( SINCE DEAD)
THRUGH LRS RAGHUNATH SINGH PATEL S/O
LATE BALKISHAN PATEL, AGED ABOUT 70 YEARS,
R/O VILALGE SIMARIYA GOTEGAON DISTRICT
NARSINGHPUR (MADHYA PRADESH)
2. STATE OF M.P. THROUGH COLLECTOR JABALPUR
(MADHYA PRADESH)
3. DILIP MEHTA S/O DHEERAJ MEHTA, AGED
Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 20-07-2023
19:24:37
2
ABOUT 71 YEARS, R/O RAJUL ARCADE RUSSEL
CHOWK JABALPUR (MADHYA PRADESH)
4. RAKESH GUPTA S/O GOPAL DAS GUPTA
OCCUPATION: BUSINESS R/O 848 JDA GROUND
DISTRICT (MADHYA PRADESH)
5. NEERAJ JAIN S/O SURESH JAIN R/O 1063
NARSINGH WARD AMANPUR JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SANKALP KOCHAR - ADVOCATE FOR RESPONDENT NO.3)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This Miscellaneous Petition is filed under Article 227 of the Constitution
of India by the plaintiffs being aggrieved of order dated 05.07.2023, Annexure
P-7 passed by learned VII th Civil Judge, Junior Division, Jabalpur in Civil Suit
No.222-A/2014 whereby an application under Section 151 CPC filed by the
plaintiffs restraining the subsequent purchasers of the suit property from leading
evidence in defense has been rejected.
Shri Manoj Sanghi has placed reliance on two judgments of the Hon'ble
Supreme Court in Dhanna Singh and Others Vs. Baljinder Kaur and
Others, (1197) 5 SCC 476, wherein it is held that right of the subsequent
purchasers to lead evidence is restricted. It is held that as per the doctrine of lis
pendens under Section 52 of the T.P. Act, the subsequent purchasers does not
get any right to lead to any evidence, as he stepped into the shoes of the first
defendant, who had given up the right to lead evidence.
Similarly, reliance is placed on the judgment of the Hon'ble Supreme
Court in India Umbrella Manufacturing Co. and Others Vs. Bhagabandei
Agarwalla (Dead) by Lrs. Savitri Agarwalla (Smt) and Others, (2004) 3
Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 20-07-2023
19:24:37
SCC 178 where Supreme Court has held that the Transferee pendent lite
cannot take a stand contrary to that of predecessor-in-interest.
Placing reliance on the said judgments, it is submitted that the Trial Court
erred in rejecting the application under Section 151 C.P.C. and that be allowed.
Shri Sankalp Kochar, learned counsel for respondent No.3, in his turn,
submits that case of the plaintiffs and respondents is quite different from the
facts of the two cases cited. Plaintiffs are claiming title over the suit property on
the strength of some power of attorney executed by the original owner of the
property i.e. defendant No.1 Smt. Siya Bai whereas the respondent No.3 is the
purchasers of the property from the legal heirs of Smt. Siya Bai and, therefore,
it is not a case of lis pendens so to attract provisions of Section 52 of the
Transfer of Property Act, 1882 but case being on a different footing, the
application has been rightly rejected.
After hearing learned counsel for the parties and going through the
record, it is evident that petitioners' plea is that in terms of the provisions
contained in Order 22 Rule 10 C.P.C. without leave of the Court no evidence
could have been led by subsequent purchasers. However, in my humble
opinion, provisions of Order 22 are in regard to the status of the parties in case
of death, marriage and insolvency, it has nothing to do with subsequent
purchasers. That aspect is squarely covered by the provisions contained in
Section 52 of the Transfer of Property Act, 1882. Section 52 of the Transfer of
Property Act deals with pending suit relating thereto it provides that the purpose
and objective of Section 52 is to bind subsequent purchasers with the judgment
and decree of the Court where the suit is pending and during pendency of
which property is alienated in favour of a third party. It is settled principle of
law that the effect of doctrine of lis pendens as embodied in Section 52 of
Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 20-07-2023
19:24:37
Transfer of Property Act is not to annul all 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
only to make the decree passed in the suit binding on the transferee if he
happens to be third party person even if he is not a party to it. This is the ratio
of the law laid down by Kerala High Court in K.A. Khader Vs. Rajamma
John Madathil, AIR 1994 ker 122. In case of Thomson Press (India) Ltd.
Vs. Nanak Builders and Investers Pvt. Ltd., AIR 2013 SC 2389, Supreme
Court has held that the doctrine of lis pendens is a doctrine based on the
ground that it is necessary for the administration of justice that the decision of a
Court in a suit should be pending not only on the litigating parties but on those
who drive title pendelite. The provision of Section 52 does not indeed annul the
conveyance or the transfer otherwise, but to render it subservient to the rights
of the parties to a litigation.
Even in case of India Umbrella Manufacturing Co. and Others
(surpa) ratio is that the subsequent purchasers cannot take a stand contrary to
that of predecessor-in-interest. That is not the case because that will be for the
Trial Court to shuffle and examine as to what extent evidence of the subsequent
purchasers is contrary to the predecessor-in-interest and that will not have
impact of stopping the subsequent purchasers from coming to the witness box.
As far as, law laid down in case of Dhanna Singh and Others (supra)
is concerned, facts of that case are different. Original defendant had shown his
unwillingness to lead any evidence, therefore, under those facts and
circumstances Supreme Court held that since subsequent purchasers moves
into the shoes of the original defendant, therefore, he cannot be allowed to lead
Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 20-07-2023
19:24:37
evidence once original defendant has given his willingness not to lead evidence.
Facts of that case are distinguishable and are not applicable to the facts of the
present case specially in view of the submission made by Shri Sankalp Kochar
that dispute is between a power of attorney holder of the defendant No.1 Smt.
Siya Bai and the other defendants who claim themselves to be purchasers of the
property from the original owner i.e Smt. Siya Bai or her legal heirs whereas
plaintiff petitioner is claiming himself to be a power of attorney holder of Smt.
Siya Bai. Thus, facts being different, there is no error apparent in the impugned
order, calling for interference in supervisory jurisdiction of this Court.
Petition fails and is hereby dismissed.
(VIVEK AGARWAL)
JUDGE
Tabish
Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 20-07-2023
19:24:37
