@JUDGMENTTAG-ORDER
Poonam Srivastav, J.@mdashHeard Sri Rajesh Kumar Chauhan and Sri A. K. Gupta, learned Counsel for the defendant-appellants IInd set and Sri M. K. Gupta Advocate for the plaintiff-respondents.
2. Learned Counsel for the parties state that the questions involved are legal questions and, therefore, the record of the lower Court is not required to ascertain the facts of the case; consequently this appeal is heard and decided at the stage of admission itself.
3. The instant second appeal is preferred against the judgment and decree dated 28-1-2004 passed by the Additional District Judge, Court No. 4, Aligarh allowing Civil Appeal No. 108 of 1997 arising out of Original Suit No. 546 of 1989. The trial Court dismissed the suit for specific performance but allowed refund of the earnest money along with 12% interest. The judgment and decree passed by the trial Court was challenged in appeal by the plaintiff. The suit was instituted for specific performance. Shiv Kumar defendant Ist set was the original owner of the disputed land. He entered into an agreement to sell with the plaintiff Laxmi Devi on 11-9-1987 and subsequently another agreement was also executed in favour of Munni Lal who executed a power of attorney in favour of his son Ramesh Chandra on 6-12-1989. A sale deed was executed in favour of the appellants on 3-7-1990 for a consideration of Rs. 2,70,000/-. The suit was instituted on 27-7-1989 and the appellants were subsequently impleaded as a defendant in the suit. The trial Court arrived at a conclusion that the defendant-appellants were entitled for the benefit u/s 19(b) of the Specific Relief Act. The appeal was allowed by the lower appellate Court, which is under challenge in the instant second appeal. Counsel for the appellants framed as many as three substantial questions of law which are as under:
(i) Whether the lower appellate Court was justify in ignoring the claim of the appellant on the ground that Section 19(b) is not applicable to their case and in any case decree for refund of sale consideration be passed ?
(ii) Whether the plaintiff being bona fide purchaser for value without notice and hence their rights were protected and the transfer in their favour was not barred ?
(iii) Whether the Lower Appellate Court has erred in decreeing the suit for specific performance without upsetting the findings of the trial Court on the question of knowledge of the agreement dated 11-9-1987 in favour of plaintiff ?
4. The main thrust of the argument is that the appellants are bona fide purchasers. They are in actual physical possession of the land in question and they will suffer irreparable injury in case they are dispossessed. It is also submitted that the trial Court compensated the plaintiff by refunding the money along with 12% interest. The submission is that the appellants had sufficiently established their bona fide claim and their contention is that they tried to make necessary inquiry and despite due diligence, they were not aware about the agreement to sell and, therefore, they are liable to be accorded benefit of Section 19(b) of Specific Relief Act. It is not disputed that the sale deed in favour of the appellants was executed during the pendency of original suit No. 546 of 1989. Counsel for the appellant has placed reliance on the decision of the Apex Court in the case of
5. Sri M. K. Gupta counsel appearing for the plaintiff-respondents has emphatically disputed each and every arguments advanced on behalf of the defendant-appellants. The submission is that the appellants being subsequent purchaser during the pendency of the suit for specific performance have no right or claim and the lower appellate Court was absolutely right in coming to a conclusion that they were not entitled to the benefit u/s 19(b) of the Specific Relief Act. Section 3 of Transfer of Property Act defines a person said to have notice;
A person is said to have notice "of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I- Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of regisration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under Sub-section (2) of Section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated.
6. The lower appellate Court has recorded a finding after persuing the statement of DW-2 where he has admitted that he had not examined any Barahsala, though DW-1 states that the said document was shown to the appellants. Since no receipt thereof has been produced specially when the DW-2 has made a contrary admission, a conclusion has been arrived at that no inquiry whatsoever was made by the defendant-appellant. Sri. M. K. Gupta has place a Full Bench decision of this Court in the case of
7. The subsequent tranferee, even though he has obtained the transfer without notice of the original contract cannot set up against the plaintiff any right to defeat the rule of lis pendens which is founded on public policy. Thus the Full Bench clearly held that Section 52 of the Transfer of Property Act is not subject to Section 19 of the Specific Relief Act. While laying down this principle, the Full Bench placed reliance on the decision of the Apex Court,
After hearing learned Counsel for the parties, I am of the view that the second appeal lacks force for the following reasonings. The sale-deed was executed during the pendency of the appeal in collusion with original vendor who wanted to frustrate the right of respondent Smt. Shanti Devi. This is not permissible under law when a concluded contract is existing between Smt. Shanti Devi and Sri. Raja Ram. I fail to understand how it would help the appellant Nos. 2 and 3 in giving opportunity when they did not file suit for specific performance of contract, if there was any oral agreement or understanding earlier. If there was none, then sale executed in favour of Smt. Shanti Devi is subject to the right u/s 52 of Transfer of Property Act. The second sale, if any, would be subject to the rights of the parties in the suit. Ruling has been quoted by the learned Counsel for the respondent
8. In another case
3. The contesting respondent No. 3 obtained a decree for specific performance against Abdul Habib alias Abdul Ahmad, the pro forma respondent No. 4, on 16th August, 1973. Before the decree could be executed the pro forma respondent No. 4 transferred the property, which was the subject matter of the decree, in favour of Mohd. Sharif and Abdul Aziz on 7th February, 1974. The decree-holder Harish Chandra, the contesting respondent No. 3, initiated proceedings for execution of the decree dated 6th August, 1973. The petitioners before this Court, who were the transferees of the property in dispute, filed objection u/s 47 of the Code asserting that the decree was not binding on them inasmuch as they were not parties to the suit and that the decree was not executable against them as they were the bona fide transferees for value. The objection of the petitioners was turned down by the executing Court by means of its order and judgment dated 18th January, 1985. The petitioners took up the matter before the District Judge, Rampur in revision. The revision was dismissed by means of the order and judgment dated 27th April, 1985 and the order of the executing Court rejecting the objection of the petitioners was upheld.
4. Relying upon the doctrine of lis pendens the courts below have held that the petitioners were as much bound by the decree and judgment dated 16th August, 1973 as their transferor Abdul Habib, the judgment-debtor. The view taken by the courts below is sound. Lis comes into existence from the point of the institution of the suit and continues to survive till the satisfaction of the decree. In view of this legal position, the impugned orders and judgments do not warrant any interference by this Court in exercise of its special and extraordinary jurisdiction under Article 226 of the Constitution of India.
9. In the case of (Smt.) Savitri Devi v. Civil Judge (S.D.), Gorakhpur and Ors. 2003 (51) ALR 369 : 2003 All LJ 2535, it was held that any sale deed executed in disobedience of interim injunction restraining alienation of property render the sale deed during pendency of the suit is nonest and can very well be ignored.
10. In the instant case, admittedly an injunction was operative and in spite of it sale deed was executed in violation of injunction order and, therefore, the lower appellate Court was absolutely correct in denying the benefit of Section 19(1)(b) of the Specific Relief Act. The sale deed is nullity and cannot be given effect to. The facts of the present case are absolutely different from the one cited by the learned Counsel for the appellants and not applicable to the facts of the present case. The Full Bench decision as well as the decisions of the Apex Court clearly give Section 52 of the Transfer of Property Act and overriding effect of Section 19(1)(b) of the Specific Relief Act. The facts of the present case are undisputed. Only inquiry as stated by the DW-1 is that Barahsala was shown to the appellants whereas DW-2 has denied this fact and this has been very well noted by the lower appellate Court while refusing to grant benefit to the appellants.
11. In the facts and circumstances, I am of the considered view that the appellants are not entitled to the benefit claimed and no illegality has been committed by the lower appellate Court while setting aside the decree of the trial Court. The substantial questions of law raised in this appeal is farfetched one and not worth consideration. The appeal lacks merit and is accordingly dismissed. There shall be no order as to costs.
