Honourable Mr. Justice G. Raja Suria
1. This Second Appeal is focussed by the legal heirs of the original plaintiff animadverting upon the judgment and decree dated 28.08.2009, passed in A.S.No.214 of 1996 by the learned Principal District Judge, Thoothukudi in confirming the judgment and decree dated 07.08.1996, passed in O.S.No.1 of 1988 by the learned Subordinate Judge, Thoothukudi.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A re''sume'' of facts absolutely necessary and germane for the disposal of this second appeal would run thus:
The deceased plaintiff filed the suit for declaring that the plaintiff is exclusively entitled to the plaint scheduled property and for permanent injunction restraining the defendant, his men, his servants and his agents from interfering with the plaintiff''s possession and enjoyment of the plaint scheduled property.
4. The suit was resisted by the deceased first defendant by filing the written statement.
5. Whereupon, relevant issues were framed by the trial Court.
6. During trial, the second appellant herein examined herself as P.W.1 and marked Exs.A.1 to A.48 on their side. The eighth defendant examined himself as D.W.1 and marked Exs.B.1 to B.23 on their side.
7. Ultimately, the suit was dismissed by the trial Court.
8. As against the judgment and the decree of the trial Court, the legal heirs of the plaintiff preferred the appeal, for nothing but to be dismissed.
9. Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the legal heirs of the plaintiff preferred this Second Appeal on various grounds, suggesting the following substantial questions of law:
(i) Whether the courts below are justified in not considering the extract of suit register in O.S.No.51 of 1950 evidencing court auction purchase of suit property by predecessor of the plaintiff?
(ii) Whether the title deeds, property tax, kist receipt from 1962 to 1994, judgment in EP No.182/1977 in O.S.No.546/1975 at the instance plaintiff for removal of encroachment by strangers from the suit property, orders in the patta proceedings by District Revenue Officer, in favour of the plaintiff did not prove the title, right, possession and enjoyment of the plaintiff?
(iii) Whether the courts below were right in dismissing the suit placing reliance on the judgment in OS No.304/79 and AS No.53 of 1981 having held that the property in those proceedings did not relate to the suit property?
(iv) Whether the courts below were right in considering the kist receipt and property filed on the side of the defendants when they did not relate to the suit property?
(v) Whether the courts below were right in accepting the void sale of suit property during 1951 relied on by the defendants when the said sale was during the attachment in OS No.50 of 1951 and sold in public auction in 1955 in favour of predecessor-in-title of the plaintiff and hit by Sec.64 of CPC?
(Extracted as such)
10. A summation and summarisation of the arguments as put forth and set forth by the learned Counsel for the appellants would run thus:
(a) Both the Courts below miserably failed to take into account the fact that Athilakshmi Ammal got the property free from all encumbrances through Court auction sale, whereupon Athilakshmi Ammal dealt with the property and executed a donation deed in favour of one Valliammal, who subsequently, sold the property in favour of the plaintiff - Chelliah Chettiar who had been in possession and enjoyment of the said property measuring 4 Acres ever since 1962 as absolute owner.
(b) While so, without any right whatsoever, the defendants tried to barge into the property during the year 1988 and lay claim over it.
(c) The revenue records et al marked on the side of the plaintiff would exemplify and demonstrate that the plaintiff became the absolute owner of the property, but the Courts below failed to consider them, however by giving undue importance to the earlier alleged sale deed dated 23.01.1952 (Ex.B.1) executed by one Muthusamy, one of the defendants/judgment debtors in the money suit O.S.No.51 of 1950, on the file of the Subordinate Court, Thoothukudi, transferring their suit property in favour of Mohamed Buhari, the propositus of the defendants.
(d) After due publication, the Court auction sale was conducted whereby Athilakshmi Ammal had become the absolute owner of the property free from all encumbrances.
(e) If at all the defendants'' predecessor had any right over the property, they should have raised claim then and there, which would have been adjudicated under Order 21 Rule 58 of the Code of Civil Procedure, but that was not done so.
(f) The plea of ignorance of the Court auction sale as put forth by the defendants propositus as well as the defendants, is nothing but a ruse to usurp and grab the property of the plaintiff by hook or by crook.
(g) During the pendency of the suit only, the alleged sale was effected in favour of Mohamed Buhari and it is hit by lis pendens.
(h) It should be taken that they had the knowledge of the litigation and such a transfer was fraught with fraudulent motive and intention, which could be discarded, but both the Courts below gave undue weightage to the sale deed executed by Muthusamy in favour of Mohamed Buhari to defeat the genuine claim of the plaintiff.
11. In a bid to mince meat, and torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiff, the learned Counsel for the defendants 2 and 11 would advance her arguments, the long and short of them would run thus:
(a) Indisputably and indubitably, the sale deed executed by the said Muthusamy along with his father and son, would exemplify and demonstrate that such a sale was effected long prior to the alleged attachment.
(b) As such the sale effected earlier would not be bound by the subsequent attachment.
(c) The said Athilakshmi Ammal is none but the said Muthusamy''s brother''s wife and it is Muthusamy, who stage managed everything in such a manner that he made Athilakshmi Ammal to purchase the said property falsely in the court auction sale and thereafter, made her to assign the property in favour Muthusamy''s daughter-in-law Valliammal. As such, this is a good example of a down night fraudulent transaction.
(d) Muthusamy after parting with his title in favour of Mohamed Buhari, deliberately did choose to stage manage the illegal transactions. As such, both the Courts below have dealt with the matter correctly and dismissed the claim of the plaintiff, warranting no interference in Second Appeal. There is no question of law, much less substantial question of law is involved in this case. Accordingly, the learned counsel for the respondents 1 to 11 prays for the dismissal of the Second Appeal.
12. I would like to fumigate my mind with the following principles as found enunciated and enshrined in the following decisions of the Honourable Apex Court:
(i)
(ii)
(iii) State Bank of India and others v. S.N.Goya reported in 2009 1 L.W. 1.
13. A bare poring over and perusal of the said decisions would exemplify and demonstrate that unless any substantial question of law is involved, the question of entertaining a Second Appeal would not arise. Perversity or illegality involved in the rationalisation adhered to by the Court below in their judgments would take the way for Second Appeal. Hence, with this in mind, I would like to analyse the facts and figures before me.
14. The germane undeniable or at least unquestionable facts would run thus: One creditor filed the suit O.S.No.51 of 1950 on the file of the Subordinate Judge, Thoothukudi as against Muthusamy et al for the purpose of recovering the money and ultimately he got the decree. Thereafter, the suit property herein was brought for sale after attaching it. In the Court auction sale, one Authilakshmi Ammal was the successful bidder. The said Athilakshmi Ammal is none but the Muthusamy''s brother''s wife and subsequently, she assigned the property as per Ex.A.2 in favour of Valliammal, the said Muthusamy''s daughter-in-law. The fact remains that during the pendency of the money suit itself, Muthusamy along with his father and son sold the suit property in favour of Mohamed Buhari, the father of 1st defendant, but that fact was not shown in the encumbrance in the sale proceedings. In such circumstances, both the Courts below unambiguously and unequivocally, legally and appropriately gave the finding that the sale effected before attachment was valid in law and such a sale was not affected in any manner by the attachment, which resulted in subsequent Court sale. The first appellate Court also went to the extent of giving a finding based on evidence that the purchase by Athilakshmi Ammal and subsequent transfer of the said property by Athilakshmi Ammal in favour of Muthusamy''s dauther-in-law, be spoke and betoken that those were all fraudulent transactions. Muthusamy by bending over backwards took herculean and questionable efforts after much wheel and deal brought about those illegal and rebarbative transactions quite antithetical to Ex.B.1 the sale deed in favour Mohamed Buhari. The first appellate Court also referred to relevant precedents for arriving at its conclusion.
15. The crucial point which has to be noted in this case is as to,
Whether the sale effected by Muthusamy, one of the defendants in the money suit O.S.51 of 1950 in favour of Mohamed Buhari during the pendency of the said suit could be taken as one hit by lis pendens?
16. The meaning of lis pendens as found in Black''s Law Disctionary is extracted hereunder for ready reference:
1. A Pending lawsuit.
2. The jurisdiction, power, or control acquired by a court over property while a legal action is pending.
3. A notice, recorded in the chain of title or real property, required or permitted in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interest acquired during the pendency of the suit are subject to its outcome. - Also termed (in sense 3) notice of lis pendens; notice of pendency. Cf. PENDENTE LITE.
17. At this juncture, it is just and necessary to refer to the following decisions of the Hon''ble Apex Court:
(i) T.G. Ashok Kumar v. Govindammal reported in (2011) 2 MLJ 317 (SC). Certain excerpt from it would run thus:
10. The principle underlying Section 52 is clear. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee''s title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee''s title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee''s right and title are saved fully or partially.
11. In this case, a suit for partition filed by the first respondent against the second respondent in the year 1985 which included the suit property, was pending in a court of competent jurisdiction as on the date of sale (11.4.1990) by the second respondent in favour of the appellant. The partition suit was not collusive. Having regard to Section 52 of the Act, the sale by the second respondent in favour of the appellant did not in any way affect the right of the first respondent (plaintiff in the partition suit) or the decree made in her favour in the said partition suit. It is thus evident that the sale by second respondent in favour of the appellant though not void, did not bind the first respondent who was the plaintiff in the partition suit. On the other hand, the sale in favour of appellant was subject to the right declared or recognized in favour of the first respondent-plaintiff under the decree passed in the pending partition suit. The sale pendente lite would therefore be subject to the decree in the partition suit. In the final decree passed in the partition suit, the major portion of the suit property shown by the letters B, C, D, E, F, G, H, I, B in the Commissioner''s sketch (Exhibit C-5) was allotted to the share of the first respondent and to that extent, the sale in favour of the appellant would be ineffective. But in regard to the remaining portion of the suit property namely the portion shown by the letters A, B, I, H, A in the Commissioner''s sketch (Exhibit C-5) which stood allotted to the share of the second respondent in the final decree in the partition suit, the sale by the second respondent in favour of the appellant is effective, valid and binding on the second respondent and to that extent, the appellant is entitled to a declaration of title and consequential injunction.
12. We are therefore of the view that the suit ought not to have been dismissed in entirety even if the sale by the second respondent in favour of appellant on 11.4.1990 was hit by the doctrine of lis pendens. The second respondent cannot avoid the sale made by her on the ground that she was held to be not the exclusive owner, in the pending partition suit. Therefore the courts below ought to have decreed the appellant''s suit in part, in regard to the portion of the suit property that fell to the share of second respondent instead of dismissing the suit.
(ii)
42. It is well settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit.
43. The principle underlying Section 52 of the TP Act is based on justice and equity. The operation of the bar u/s 52 is however subject to the power of the court to exempt the suit property from the operation of Section 52 subject to such conditions it may impose. That means that the court in which the suit is pending, has the power, in appropriate cases, to permit a party to transfer the property which is the subject-matter of the suit without being subjected to the rights of any part to the suit, by imposing such terms as it deems fit. Having regard to the facts and circumstances, we are of the view that this is a fit case where the suit property should be exempted from the operation of Section 52 of the TP Act, subject to a condition relating to reasonable security, so that the defendants will have the liberty to deal with the property in any manner they may deem fit, in spite of the pendency of the suit.
18. A mere perusal of the concept ''lis pendens'' as well the decisions emerged thereunder would indicate and display that unless the property happens to be the subject matter of the suit, the question of lis pendens would not arise. The first appellate Court has correctly given a finding that the subject matter of the present suit was not subject matter of the earlier money suit and no attachment was also effected before Muthusamy et al effecting sale in favour of Mohamed Buhari. In such a case, the contention as put forth and set forth on the side of the appellants/LRs of the plaintiff herein that the said Mohamed Buhari, did not acquire any title to the property, cannot be countenanced for the reason that the sale transaction effected before the attachment would not be hit by the attachment. Furthermore, in the Court auction sale proceedings, the proper encumbrance certificate should have been filed. Had such proper encumbrance certificate, been filed before the Executing Court, then that would have highlighted and indicated about the prior sale by Muthusamy et al in favour of Mohamed Buhari. It is therefore, pellucidly and palpably, glaringly and legally clear that the said sale of the property effected as per the said Court auction proceedings in favour of Athilakshmi Ammal, had no precedence over the said sale in favour of Mohamed Buhari, who acquired clear and valid title over the property, before the attachment was effected in the earlier matter.
19. My mind is reminiscent and redolent of the maxims "Nemo dat qui non habet" (No one gives who does not possess) and "ubi jus, ibi remedium" (When there is a right, there is a remedy).
20. In as much as Athilakshmi Ammal herself did not acquire valid title over the property, the question of she assigning the property in favour of Valliammal and thereafter Valliammal transferring the property to the plaintiff would not arise at all legally.
21. The learned counsel for the appellants would vehemently argue that the revenue records would establish and prove that the plaintiff has been in possession and enjoyment of the property and only during the year 1988, the defendants did choose to assert their right illegally. Whereas the learned counsel for the respondents 1 to 11 would submit that the patta issued in favour of the plaintiff was cancelled as revealed by Ex.B.21. Both the Courts considering those documents exhibited during trial, au fait with law and au curente with facts decided the case.
22. It is an admitted fact that the suit property is a vacant land with some trees and no cultivation was going on also. In such a case, the adage "possession follows title" would be attracted. A fortiori the plaintiff could not prove his title; consequently, he is not entitled to declaration as well as injunction to protect his alleged possession. On balance, the judgments of the Courts below are not perverse or illegal.
23. In such a case, I do not see any question of law, much less any substantial question of law is involved in this matter and the Second Appeal deserves to be dismissed.
24. In the result, the Second Appeal is dismissed. No costs. Consequently, connected M.P.(MD) No.3 of 2011 is dismissed.
