Vindu Goenka vs Jai Narain And Ors
2023 Latest Caselaw 3528 P&H

                                                                                2023:PHHC:048620

                           CR-5673-2008 (O&M)                                         -1-


                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                CHANDIGARH

                                                                       CR-5673-2008 (O&M)
                                                                       Reserved on :- 29.03.2023
                                                                       Date of Decision : 11.04.2023


                           Vindu Goenka                                                     ....Petitioner

                                                            VERSUS

                           Jai Narain and Others                                       ....Respondents


                           CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                           Present :    Mr. Shailendra Jain, Sr. Advocate with
                                        Mr. Munish Sharma, Advocate for the petitioner.

                                        Mr. Anupam Gupta, Sr. Advocate, with
                                        Mr. Bhavnik, Advocate for respondent Nos.5 to 8.

                                                               -.-

                           ALKA SARIN, J.

The present revision petition under Article 227 of the

Constitution of India has been preferred challenging the orders dated

23.07.2008 and 18.08.2008 dismissing the objection petitions filed by the

petitioner herein.

A brief history of the case needs to be noted here before

adverting to the merits of the matter. On 03.04.1984 Dhan Singh s/o Kalu

Ram executed an agreement to sell in favour of Jai Narain etc., the

respondents herein, for a sale consideration of Rs.4.35 Lakhs. The

agreement stated that Rs.6,000/- had been paid at the time of signing of the

agreement to sell and Rs.1.74 lakh already stood paid prior to the TRIPTI SAINI 2023.04.11 10:16 agreement. The total land involved in the agreement to sell was 116 kanals I attest to the accuracy and integrity of this document Chandigarh 2023:PHHC:048620

CR-5673-2008 (O&M) -2-

1 marla i.e. 1/3rd share of 348 kanals and 4 marlas situated in the revenue

estate of village Wazirpur, Tehsil and District Gurgaon. After the execution

of the alleged agreement to sell dated 03.04.1984, Dhan Singh sold land

measuring 20 kanals out of his share of 116 kanals and 1 marla to Rampat

vide registered sale deed dated 11.03.1986. On 16.08.1988 a civil suit was

filed for specific performance of the alleged agreement to sell dated

03.04.1984 by Jai Narain etc., the plaintiff-respondents herein, against Dhan

Singh respondent No.9 herein. It is apt to note that in the written statement

filed by Dhan Singh no disclosure was made regarding 20 kanals of land

having been sold to Rampat vide sale deed dated 11.03.1986 and hence

Rampat was not impleaded as a party. Subsequently, Rampat vide sale deed

dated 30.06.1989 sold 20 kanals of land in favour of Tej Ram. Tej Ram vide

sale deed dated 27.11.1989 sold 20 kanals of land to Madhulika. On

21.09.1994 ex-parte judgment and decree was passed in favour of Jai

Narain etc. in the suit for specific performance. It is apt to note here that

though the suit was filed for specific performance of agreement to sell dated

03.04.1984 as well as for delivery of possession, however, the judgment and

decree was passed only granting specific performance of agreement to sell

dated 03.04.1984 and no decree qua possession was passed. On 31.08.1995

an execution petition was filed by Jai Narain against judgment-debtor Dhan

Singh (respondent No.9 herein) wherein it was prayed that the plaintiff

decree-holders (respondents herein) be granted a decree for specific

performance of the agreement to sell dated 03.04.1984 on depositing of

balance sale consideration as well as for possession. During the pendency of TRIPTI SAINI 2023.04.11 10:16 the execution petition, vide sale deed dated 13.12.1995 Madhulika sold 9 I attest to the accuracy and integrity of this document Chandigarh 2023:PHHC:048620

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kanals out of 20 kanals to Vindu Goenka the present petitioner. In the

execution petition, on 17.08.1998 the sale deed was executed through the

agency of the Court in favour of Jai Narain etc. Thereafter, it was brought to

the notice of the Court that the judgment-debtor Dhan Singh was not in

possession of the suit land and that there were 21 purchasers of the said

land. Accordingly, the decree-holders filed an application for delivery of

possession against 21 purchasers including the petitioner herein. The

purchasers mentioned at Sr. Nos.3, 17, 19 and 20 put in appearance and the

remaining remained unserved. On 05.08.2006 a statement was made by the

learned counsel for the decree-holders that the impleadment of the

subsequent purchasers was unnecessary and there was no requirement to

summon them. The said fact is noticed in the order dated 07.08.2006 passed

by the Executing Court. Objections were filed by the petitioner which were

dismissed vide the impugned order dated 23.07.2008. The appeal of the

petitioner was also dismissed vide order dated 18.08.2008.

Learned senior counsel appearing on behalf of the petitioner

would contend that without going into the detailed objections raised by the

petitioner, the Executing Court has dismissed them only on the ground of

the petitioner having purchased the property lis pendens. Learned counsel

would further contend that out of the 116 kanals 1 marla of land Dhan

Singh sold 20 kanals to Rampat on 11.03.1986 and, therefore, on the date of

passing of judgment and decree dated 21.09.1994 Dhan Singh was not even

the owner of land measuring 116 kanals 1 marla. It is submitted that the

petitioner herein has purchased the land from Madhulika who in turn had TRIPTI SAINI 2023.04.11 10:16 purchased it from Tej Ram and Tej Ram had purchased it from Rampat. It I attest to the accuracy and integrity of this document Chandigarh 2023:PHHC:048620

CR-5673-2008 (O&M) -4-

is further the contention of the learned counsel that without going into the

question whether the sale in favour of Rampat would be hit by the

principles of lis pendens, the Executing Court erred in dismissing the

objections filed by the petitioner.

Per contra, learned senior counsel appearing on behalf of

respondent Nos.5 to 8 would contend that the principles of lis pendens

would apply in the present case and has further placed reliance on the

judgment of the Supreme Court in the case of Guruswamy Nadar Vs. P.

Lakshmi Ammal (D) through LRs & Ors. [2008 (5) SCC 796] to support

his plea that the principle of lis pendens will be applicable as the sale has

taken place after the filing of the suit.

I have heard learned senior counsel for the parties.

In the present case the petitioner filed her objections on the

ground that her rights flow from the sale in favour of Rampat vide sale deed

dated 11.03.1986 which was prior to the filing of the civil suit. Rampat

became owner of land measuring 20 kanals by way of sale deed dated

11.03.1986 which was never challenged by anyone and, thereafter, the

subsequent vendee acquired a right on the basis of their respective sale

deeds. On the day the suit was filed i.e. 16.08.1988, Dhan Singh was not

even owner of land measuring 116 kanals 1 marla since 20 kanals stood

sold by him in favour of Rampat vide sale deed dated 11.03.1986. The

Executing Court without going into the objections in detail has summarily

dismissed them holding that the sale in favour of the petitioner was hit by

lis pedens. The question as to whether Rampat had a good title on the basis TRIPTI SAINI 2023.04.11 10:16 of the sale deed dated 11.03.1986 and whether Dhan Singh actually had any I attest to the accuracy and integrity of this document Chandigarh 2023:PHHC:048620

CR-5673-2008 (O&M) -5-

right, title or interest in the entire 116 kanal 1 marla of land having sold 20

kanals in favour of Rampat vide sale deed dated 11.03.1986, would be a

question required to be gone into. The judgment relied upon by the learned

counsel for the respondent Nos.5 to 8 would have no applicability in the

present case inasmuch as the property therein was purchased during the

pendency of the suit. However, in the present case the sale in favour of

Rampat, from whom the right in favour of the petitioner flows, was prior to

the filing of the suit. It is also apt to note that Dhan Singh chose not to

disclose in the civil suit that he had sold 20 kanals in favour of Rampat who

was then never impleaded as party.

In view of the above, the present revision petition is allowed.

The impugned orders dated 23.07.2008 and 18.08.2008 are set aside and the

matter is remanded to the Executing Court for deciding the objections

afresh in accordance with law.

It is made clear that any observation made herein-above shall

not be treated as an expression of opinion on the merits of the case.

                           11.04.2023                                           (ALKA SARIN)
                           tripti                                                  JUDGE

NOTE : Whether speaking/non-speaking : Speaking Whether reportable : YES/NO

TRIPTI SAINI 2023.04.11 10:16 I attest to the accuracy and integrity of this document Chandigarh