Madras High Court
Mani @ Sundaramoorthi vs Balusamy Chettiar on 12 January, 2022
S.A.No.1124 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:12.01.2022
CORAM:
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.1124 of 2021
Mani @ Sundaramoorthi
S/o, Duraisamy Gounder ... Appellant
Vs.
Balusamy Chettiar,
S/o, Muthusamy Chettiar ... Respondent
Prayer:
Second Appeal is filed under Section 100 of C.P.C., against the
judgment and Decree dated dated 30.03.2021 made in A.S.No.19 of 2018 on
the file of the Additional Subordinate Court, Kallakurichi, confirming the
judgment and decree dated 10.08.2017 made in O.S.No.299 of 2011 on the
file of the Principal District Munsif Court, Kallakurichi.
1/17
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For Appellant : Mr.M.Premumar
for R.Anbukarasu
For Caveator : Mr.P.Valliappan
for M/s.PV Law Associates for Caveator
*****
JUDGMENT
This Second Appeal is directed against the judgment and decree
dated 30.03.2021 passed in A.S.No.19 of 2018 by the learned Additional
Subordinate Judge, Kallakurichi, confirming the judgment and decree dated
10.08.2017 passed in O.S.No.299 of 2011 by the learned Principal District
Munsif, Kallakurichi.
2. The appellant herein is the plaintiff, who filed a suit for
permanent injunction against the respondent restraining him from
interfering with his peaceful possession and enjoyment of the suit
properties and for costs.
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S.A.No.1124 of 2021
3. The appellant claimed that he purchased the suit property from one
Gopal, S/o, Sundaram Aachari, under a registered sale deed dated
27.01.2005 for a valuable consideration of Rs.3,31,000/-. Ever since the
date of purchase, he is in possession and enjoyment of the suit property.
The respondent owns the property on the northern side of the suit property.
He is a third party so far as the suit property is concerned and he has no
right or title in the suit property. He is an influential man in the village. He
is trying to trespass into the suit property from the last week of July 2011.
Under the said circumstances, the appellant has filed the suit, for the relief
of permanent injunction.
4. The case of the respondent, in brief, is as follows:
It is specifically denied by the respondent that the suit property belongs to
the appellant. The sale deed executed by Gopal in favour of the appellant is
also denied. The sale deed dated 27.01.2005 is not true and valid, which is
hit by doctrine of lis pendens. Originally, the suit property and other
properties belonged to one Sundaram Asari ancestrally. He died intestate
leaving behind his five sons and four daughters. They are (i) Kutti @
Sankaran (ii) Kannan @ Krishnan (iii) Mani @ Mahadevan (iv) Gopal (v)
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S.A.No.1124 of 2021
Sampath (vi) Baby @ Kamatchi (vii) Premavathi (viii) Kausalya (ix)
Vijayalakshmi. Since the properties are ancestral in nature, sons of
Sundaram Asari are each entitled to 10/54 share and his daughters are each
entitled to 1/54 share. One of the sons, Mani @ Mahadevan created an
encumbrance and sold the portion to one Chinnasamy and Pommannan.
Other sons had filed a suit for partition in O.S.No.385 of 1981. After
contest, the suit was decreed and preliminary decree declaring the plaintiffs'
right of 40/54 share in the suit property and other properties. Daughters
were also found to be entitled to 4/54 shares. The decree was passed on
31.03.1987. The respondent agreed to purchase the shares of one Kutti @
Sankaran, Kannan @ Krishnan, Gopal, Sampath, who were entitled to 40/54
shares. A registered sale agreement was entered into with them on
20.04.1987. The Preliminary decree passed in O.S.No.385 of 1981 was
finally confirmed by this Court in S.A.No.1617 of 1991. The respondent
requested the parties to the sale agreement to receive the balance sale
consideration and to execute the sale deed. They did not comply with the
request. Therefore, notice dated 07.12.2002 was sent to the parties. They
have not responded positively. Therefore, the suit for specific performance
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S.A.No.1124 of 2021
of the agreement dated 20.04.1987 was filed in O.S.No.142 of 2003 on the
file of the Subordinate Court, Kallakurichi. The appellant's vendor Gopal
was the second defendant in the suit. He contested the suit. Except him, all
other defendants in the suit admitted the respondent's claim and executed a
registered sale deed in respect of their shares in the suit property and other
properties in favour of the respondent. The appellant's vendor Gopal alone
contested the suit. The suit was decreed on 30.11.2007. Even after the
decree, Gopal did not come forward to execute the sale deed. Therefore,
E.P.No.59 of 2008 was filed for execution of the sale deed. The sale deed
was executed by the learned Subordinate Judge, Kallakurichi on behalf of
Gopal on 31.10.2008 and the possession was taken through court Amin as
per the order passed in E.A.No.182 of 2009 on 24.07.2009. The
respondent's wife Kamatchi Ammal purchased 4/54 shares of four daughters
of Sundara Asari through a registered sale deed on 19.01.2003. Thus, the
respondent had purchased the entire extent of the suit property and he is in
possession and enjoyment of the suit property. This is frivolous and
adventurous suit and it is hit by the doctrine of lis pendens. Therefore, the
suit is liable to be dismissed.
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S.A.No.1124 of 2021
5. On the basis of this pleadings, the trial court framed the following
issues:
i. Whether the plaintiff is in possession and enjoyment of the suit
property?
ii. To what relief, the plaintiff is entitled for?
6. During trial, P.W.1 was examined and Exs.A1 to A6 were marked
on the side of the appellant/plaintiff. D.W.1 was examined and Exs.B1 to
B16 were marked on the side of the respondent/defendant. Exs.X1 and X2
were also marked.
7. On consideration of the oral and documentary evidence, the learned
trial Judge found that the appellant has not produced any material to show
that he is in possession and enjoyment of the suit property except filing the
sale deed and copies of the proceedings in O.S.No.142 of 2003 and
O.S.No.385 of 1981 and legal notice. On the other hand, it is found that the
respondent produced the materials in the form of documents to show his
title and possession in respect of the suit property. In this view of the
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S.A.No.1124 of 2021
matter, the trial Judge found that the appellant is not entitled for the
permanent injunction and dismissed the suit. Against the said dismissal
order, the appellant preferred an appeal in A.S.No.19 of 2018. The
Appellate Judge also found from the oral and documentary evidence that the
appellant has not made out a case for granting the relief of permanent
injunction mainly for the reason that the sale deed in his favour was hit by
principle of lis pendens and there is no material to show that he has been in
possession and enjoyment of the suit property on the date of filing the suit.
The appeal was dismissed, confirming the judgment and decree of the
learned trial judge. Challenging the said judgment of the first appellate
court, the appellant has filed this Second appeal.
8. Learned counsel for the appellant challenged the judgment and
decree of the Courts below, especially, the first appellate court, mainly on
three grounds. The first ground is that the respondent sent Ex.A6 notice to
the appellant claiming him to cancel the document executed between the
appellant and Gopal in respect of the suit property. It is evident from the
notice that the respondent is aware of the sale deed executed by Gopal in
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favour of the appellant. Therefore, when he is aware of the existence of
Ex.A1 sale deed dated 27.01.2005, he ought to have impleaded the appellant
as a party in the specific performance suit in O.S.No.142 of 2003. When the
third party interest is created in respect of the suit property, it is necessary
that the third party should be impleaded as a party to the pending
proceeding. When that was not done, the respondent cannot take up the
plea of lis pendens. The second ground is that the appellant was not
impleaded as party in the execution proceeding. The third ground is that the
appellant is a bonafide purchaser.
9. On these grounds, the learned counsel for the appellant submitted
that both the Courts below had not considered these aspects, especially the
issuance of Ex.A6 notice and failure to implead the appellant as a bonafide
purchaser for value without notice of the pending proceeding. Thus, he
prayed for setting aside the judgement and decree of the Courts below and
for allowing this Second Appeal.
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S.A.No.1124 of 2021
10. In response, the learned counsel for the Caveator/respondent
submitted that Ex.A6 notice was sent after the execution of Ex.A1 sale deed
on 27.01.2005. Sale agreement was executed on 20.04.1987. It is a
registered sale agreement. Therefore, the appellant cannot claim that he has
no means to know about the agreement and he is a bonafide purchaser. The
suit for partition with his brothers got over only when the judgment of the
Court below was confirmed by this Court in S.A.No.1617 of 1991 on
29.11.2002. Even thereafter, the parties to the agreement had not come
forward to execute the sale deed. Therefore, the suit for specific
performance in O.S.No.142 of 2003 was filed. Hence, it is not open to the
appellant to contend that he is not aware of the sale agreement and the
pending proceeding. As a bonafide purchaser, he has to verify and trace
whether the title to the property to be purchased is free from encumbrance.
When that was not done, he cannot claim that he is a bonafide purchaser.
Learned counsel for the Caveator prayed for confirming the judgment and
decree of the Courts below and for the dismissal of the Second Appeal.
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11. Considered the rival submissions and perused the materials on
record. It is seen from the abovesaid pleadings and submissions that there
is a registered sale agreement among the respondent and Kutti @ Sankaran,
Kannan, Krishnan, Gopal, Sampath for selling their undivided 40/54 share
in the suit property. The suit in O.S.No.385 of 1981 filed for partition was
disposed finally in S.A.No.1617 of 1991 on 29.11.2002, confirming the
partition granted by the trial court. Thereafter, the respondent filed
O.S.No.142 of 2003 for the relief of specific performance against the said
four brothers. It appears that except the appellant's vendor Gopal, other
legal heirs had executed the sale deed in respect of their shares in favour of
respondent. Gopal had only contested the suit in O.S.No.142 of 2003 for
specific performance and the suit was decreed on 30.11.2007. During the
pendency of this proceeding, Gopal, one of the parties to the aforesaid
partition suit and the specific performance suit, sold the suit property to the
appellant on 27.01.2005. The sale in favour of the appellant through Ex.A1
is a sale during the pendency of O.S.No.142 of 2003. The suit property is a
property in O.S.No.385 of 1981 and O.S.No.142 of 2003. Therefore, this
sale is hit by the principle of lis pendens.
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12. The decision of the Hon'ble Supreme Court reported in 2012 (7)
SCC 738 [ A.Nawab John and Others Vs. V.N.Subramaniyam ] is held as
follows:
16. This Court in Jayaram Mudaliar v. Ayyaswami [(1972)
2 SCC 200] (paras 42 to 44) quoted with approval a
passage from Commentaries on the Laws of Scotland, by
Bell, which explains the doctrine of lis pendens: (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 recognized 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.’”
(emphasis supplied)
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17. Section 52 of the Transfer of Property Act, 1882
(for short “the TP Act”) incorporates the doctrine of lis
pendens and it stipulates that during the pendency of any
suit or proceeding in which any right to immovable
property is, directly or specifically, in question, the
property, which is the subject-matter of such suit or
proceeding cannot be “transferred or otherwise dealt
with”, so as to affect the rights of any other party to such a
suit or proceeding. The section is based on the principle:
“41. … ‘… that it would plainly be impossible that
any action or suit could be brought to a successful
termination, if alienations pendente lite were permitted to
prevail. The plaintiff would be liable in every case to be
defeated by the defendant's alienating before the judgment
or decree, and would be driven to commence his
proceedings de novo, subject again to be defeated by the
same course of proceeding.’” (Bellamy v. Sabine ER p.
849)
Quoted with approval by this Court in Vinod
Seth v. Devinder Bajaj. (SCC p. 20, para 41)
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S.A.No.1124 of 2021
18. It is settled legal position that the effect of
Section 52 is not to render transfers effected during the
pendency of a suit by a party to the suit void; but only to
render such transfers subservient to the rights of the parties
to such suit, as may be, eventually, determined in the suit.
In other words, the transfer remains valid subject, of
course, to the result of the suit. The pendente lite purchaser
would be entitled to or suffer the same legal rights and
obligations of his vendor as may be eventually determined
by the court.
“12. … The mere pendency of a suit does not prevent
one of the parties from dealing with the 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.” (Sanjay Verma v. Manik
Roy SCC p. 612, para 12.)"
It is made clear from the judgment that the subject matter of the suit in an
immovable property cannot be transferred or otherwise dealt with so as to
affect the rights of any other party to such a suit. If any such alienation is
made, the validity of transfer would depend on the outcome of the suit.
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S.A.No.1124 of 2021
13. The suit in O.S.No.142 of 2003 was decreed in favour of the
respondent. Subsequently, the respondent filed E.P.No.59 of 2008 for
execution of sale deed and sale deed was also executed. As per the order
passed in E.A.No.182 of 2009, delivery of the suit property was also handed
over to the respondent. Thus, it is clear that suit proceedings are pending
relating to the suit properties and other properties before the Court from
1981. More particularly, the suit for specific performance was pending
from 2003 in O.S.No.142 of 2003. The suit property was purchased by the
appellant from Gopal on 27.01.2005, during the pendency of O.S.No.142 of
2003. This suit was decreed against Gopal and the decree passed in
O.S.No.142 of 2003 culminated into a delivery of the property in favour of
the respondent. Therefore, the sale in favour of the appellant on 27.01.2005
in respect of the suit property through Ex.A1 sale deed is hit by principle of
lis pendens and he cannot claim any right in the suit property on the basis of
this sale deed.
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S.A.No.1124 of 2021
14. From the records produced by the Courts below, it is apparent
that the appellant has not produced any single piece of evidence to show
that he was in possession and enjoyment of the suit property on the date of
filing of the suit. Therefore, both the Courts below found concurrrently that
the appellant has not proved his claim of possession in the suit property on
the date of filing the suit and dismissed the suit.
15. For the reasons aforestated, this Court finds no reason to take
different view in the matter. There is no substantial question of law arises
for consideration in this Second Appeal. Therefore, this Court confirms the
judgment and decree dated 30.03.2021 passed in A.S.No.19 of 2018 on the
file of the Additional Subordinate Court, Kallakurichi, confirming the
judgment and decree dated 10.08.2017 passed in O.S.No.299 of 2011 on the
file of the Principal District Munsif Court, Kallakurichi.
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S.A.No.1124 of 2021
16. In conclusion, the second appeal is dismissed with the costs of
respondent throughout. Consequently, connected miscellaneous petition, if
any, is closed.
12.01.2021
mfa
Index:yes
Internet:yes
To
1. The Additional Subordinate Judge,
Additional Subordinate Court,
Kallakurichi,.
2.The Principal District Munsif,
Principal District Munsif Court,
Kallakurichi.
Copy to
The Section Officer,
VR Section,
High Court,
Chennai.
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S.A.No.1124 of 2021
G.CHANDRASEKHARAN, J.
mfa
S.A.No.1124 of 2021
12.01.2022
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