Kala Singh Baldev Singh vs Shravan Singh
2021 Latest Caselaw 8963 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civ. Leave To Appeal No. 5/2021

Kala Singh Baldev Singh S/o Jagraj Singh, Aged About 79 Years, Ward No. 14, Chandra (2 S.t.d.), Tehsil And Dist. Hanumangarh

----Appellant Versus

1. Shravan Singh S/o Inder Singh, Jodakiya, Tehsil And Dist.

Hanumangarh

2. Balkaran Singh S/o Bala Singh, Chandra, Tehsil And Dist.

Hanumangarh. At Present Ward No. 39, Sureshiya, Tehsil And Dis. Hanumangarh

3. Jaskaran Singh S/o Bala Singh, Chnadra, Tehsil And Dist.

        Hanumangarh
                                                                  ----Respondents


For Appellant(s)           :     Mr. Trilok Joshi.
For Respondent(s)          :     Mr. Sunil Bishnoi.



             HON'BLE MR. JUSTICE ARUN BHANSALI

                                      Order

07/04/2021

This leave to appeal has been filed by the applicant qua the

judgment and decree dated 15/3/2010 passed by the Addl.

District Judge, Sangaria, District Hanumangarh in civil original suit

no. 20/2004, whereby, the suit filed by the respondent - plaintiff

for specific performance of the contract has been decreed.

It is inter alia indicated that on 25/11/2000 an agreement

claims to have been executed by the respondents - Balkaran

Singh and Jaskaran Singh in favour of respondent no.1, Shravan

Singh, for the land ad measuring 3 bigha. The sale deed was to be

registered by 30/12/2001, which date was extended upto

30/4/2003 and, thereafter till 30/4/2004. On 5/8/2003, Jaskaran

(2 of 4) [CLA-5/2021]

executed sale deed in favour of the applicant for a part of the suit

land. Whereafter, five more sale deeds dated 15/5/2004,

15/7/2005, 27/9/2005, 25/1/2006, 6/10/2006 and 28/6/2007 for

small parcels of the said land were executed in favour of the

applicant by Balkaran/Jaskaran and Smt. Gurucharan Kaur.

On 14/7/2005, the plaintiff filed the suit seeking specific

performance of the contract dated 25/11/2000. The defendant

appeared before the trial court, however, did not disclose the fact

of sale deed in favour of the applicant. The suit was decreed on

15/3/2010 and execution application was filed on 9/5/2017 and

another application was filed on 8/8/2019 seeking possession of

the land in question. It is claimed that it is only when warrant for

possession of the land in question was issued and Nazir made a

report, that the applicant came to know about the passing of the

impugned decree.

Submissions were made that immediately on transfer in

favour of the applicant in the year 2003, mutation in the name of

applicant was recorded and the plaintiff despite being aware did

not implead the applicant/appellant as party.

Submissions have been made that as the applicant is

affected by the impugned judgment and decree, he may be

granted leave to appeal and if such leave is not granted, the same

would cause undue hardship as he would be dispossessed from

his own land.

Reply to the application has been filed inter alia indicating

that the application deserves to be dismissed as the applicant was

very well aware of the agreement to sell and passing of the

decree. Submissions were also made that sale deed in favour of

(3 of 4) [CLA-5/2021]

the applicant was below the prevailing market rate, which clearly

cast doubt on the bonafides of the applicant.

Further submissions were made that bulk of transfers have

taken place during the pendency of the suit, after injunction was

granted by the trial court and as such the same was hit by the

provisions of Section 52 of the Transfer of Property Act, 1882 ('the

T.P.Act') and, therefore, the applicant is not entitled to leave to

appeal.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

A perusal of the material clearly indicates that before the

decree was passed by the trial court, sale deeds have already

been executed in favour of the applicant, while one sale deed was

executed prior to filing of the suit, rest of the sale deeds were

executed after filing of the suit.

The issue as to whether in the suit for specific performance

decreed by the trial court, a pendente lite purchaser can be

granted leave to defend has been considered by this Court in

Gordhan & Ors. vs. Prasanna Chand Burad : S.B.Civil Leave to

Appeal No. 12/2018 decided on 3/3/2021, wherein, relying on the

judgments of Hon'ble Supreme Court in Saila Bala Dassi vs.

Nirmala Sundari Dassi : AIR 1958 SC 394 and Raj Kumar vs.

Sardari Lal & Ors.: (2004) 2 SCC 601, it was found that the

applicants being parties aggrieved were entitled for grant of leave

to appeal.

Once, if the transferee pendente lite has been held to be

entitled for grant of leave to appeal, qua the sale deed, which was

executed prior to filing of the suit also, the applicant is entitled to

grant of leave to appeal.

(4 of 4) [CLA-5/2021]

Submissions made by learned counsel for the respondents

indicating that the sale deed was hit by provisions of Section 52 of

the T.P. Act, though are correct, still transferee pendente lite has

been held to be a proper party to a litigation in the case of

Thomson Press (India) Limited vs. Nanak Builders & Investors Pvt.

Ltd & Ors. : (2013) 5 SCC 397.

In view thereof, the application for leave to appeal is

allowed. The applicant is permitted to file appeal against the

judgment and decree passed by the trial court. As the first appeal

has already been filed by the applicant along with the application

for leave to appeal, office is directed to register the same and list

it appropriately.

The application filed by the applicant under Section 5 of the

Limitation Act along with leave to appeal be taken out from the

said application and be dealt with in the first appeal and the first

appeal be listed next week.

(ARUN BHANSALI),J

16-baweja/-

Powered by TCPDF (www.tcpdf.org)