T.G.Ashok Kumar v. Govindammal

Whether the courts below ought not to haveappreciated that the plaintiff's vendor is the co-ownerand as such he is entitled to a share in the propertyand whether the courts below are justified in rejectingthe claim of the plaintiff to the property when he is asuccessor in interest?"However, my learned Predecessor at the time of admitting the SecondAppeal, framed the following substantial questions of law: https://hcservices.ecourts.gov.in/hcservices/ "(a) Whether the Courts below are right inarriving at a conclusion that the purchase of theplaintiff is excluded under the provision of Section 52of Transfer of Property Act, when admittedly he was notmade party to the earlier proceeding in O.S.8/1985?(b) Whether the Courts below are justified inignoring the plaintiff's purchase under Ex.A1 when itis supported by the valuable consideration of sale?(c) Whether the Courts below ought to havedecreed the suit on the basis of the principles ofequity when he is entitled to claim the share of hisvendor in the undivided property?"7.

Heard both sides.8. The substantial questions of law Nos.1 to 3 are takentogether for discussion as they are inter linked and inter wovenwith each other.9. The learned counsel for the plaintiff would advance anddevelop his arguments thus: The principle of lis pendens as found envisaged under Section 52 of the Transfer of Property Act cannot be pressed intoservice by D1 for the reason that between D2/Kanagavalliammal andone Latha, who is none else than the sister of Ashok Kumar, amortgage relating to the suit property emerged even anterior to thefiling of the partition suit O.S.No.8 of 1985 informa pauperis. Asper Ex.A1, Ashok Kumar the plaintiff herein purchased the suitproperty and he as per the understanding, discharged the mortgage infavour of Latha from out of the part of the sale consideration andpaid the remaining sale consideration to Govindammal and thereby heacquired a right under the mortgage prior to the filing of thepartition suit.

In such an event, the plaintiff herein cannot betermed as a purchaser pendente lite and he is not bound by thedecree passed in the partition suit in view of he not having beenadded as a party. After the passing of the preliminary decree forpartition in the previous proceedings at the instance of Govindammal, curiously enough the same Govindammal filedapplications for impleading the father of the plaintiff and theplaintiff herein and she failed to proceed further in thoseapplications. But, on the other hand she clandestinely filedthereafter application for final decree and got her share carved outby dividing the suit property behind the back of theplaintiff/Ashok Kumar and that the records would speak the collusionbetween Govindammal and Kanagavalliammal and also the fraudcommitted on Ashok Kumar. Accordingly, reiterating the groundsfound set out in the second appeal, he prayed for setting aside the https://hcservices.ecourts.gov.in/hcservices/ judgments of both the Courts below and for decreeing the originalsuit.10.

Whereas, by way of torpedoing and pulverising thearguments as put forth on the side of the plaintiff, the learnedcounsel for D1/Govindammal would portray and put forth his argumentsthat the very narration of the previous proceedings as set out suprawould evince and evidence that absolutely there could be nocollusion between Govindammal and Kanagavalliammal; no fraud alsohas been committed by Govindammal for the reason that she sincerelythought at one point of time that even the plaintiff/Ashok Kumarherein could be impleaded as a party in the previous proceedings andin view of the fact that the said process paved the way for furtherdragging on of the partition proceedings she dropped that idea andsought for final decree without impleading the plaintiff herein andgot the final decree; the plaintiff was not at all a necessary partyin the previous proceedings inasmuch as per Ex.A1 he only purchasedthe suit property during the pendency of the partition suit; insuch a case, his non impleadment would not be fatal to the previousproceedings and he is also bound by the decree passed in thepartition suit.

Accordingly, he prayed for the dismissal of thesuit.11. It is therefore, just and necessary to analyse theentire facts under two segments, one concerning lis pendens andanother concerning fraud.12. I would like to extract here under Section 52 of the Transfer of Property Act :"52. Transfer of property pending suit relatingthereto.--During the pendency in any Court havingauthority within the limits of India excluding the Stateof Jammu and Kashmir or established beyond such limits bythe Central Government of any suit or proceeding which isnot collusive and in which any right to immovable propertyis directly and specifically in question, the propertycannot be transferred or otherwise dealt with by any partyto the suit or proceeding so as to affect the rights ofany other party thereto under the decree or order whichmay be made therein, except under the authority of the Court and on such terms as it may impose".13.

A bare perusal of the said section would clearlydemonstrate and display, exemplify and portray that a third partypurchaser of a suit property pending litigation, without thepermission of the Court cannot have any independent right over andabove the right of the seller who happened to be the party to thelis. Obviously and axiomatically, undisputedly and unassailably, unarguably and incontrovertibly, the plaintiff Ashok Kumar purchasedas per Ex.A1 the sale deed, the suit property during the pendency of https://hcservices.ecourts.gov.in/hcservices/ the said partition proceedings and in such a case, he could only betaken as a person who stepped into the shoes of D2/Kanagavalliammalherein and whatever decree passed in the partition suit as againstD2 is binding Ashok Kumar and he cannot try to wriggle out of hisposition as that of a person who merely stepped into the shoes ofD2. 14. It is a trite proposition of law that the purchaserduring the pendency of the suit is not a necessary party of thethen pending proceedings, but it is also a common or gardenprinciple of law that if a purchaser wants to get himself impleadedapprehending that his vendor would not protect his interestadequately, then it is open for him to get himself impleaded.

Butin this case, the plaintiff/Ashok Kumar despite fully knowing aboutthe pendency of the previous partition proceedings, did not chooseto get himself impleaded as one of the defendants. The fact remainsthat Govindammal herself filed I.A.No.428 of 1994 in the previouspartition suit O.S.No.8 of 1985 as revealed by Ex.A11, the copy ofthe affidavit and petition for impleading the plaintiff as one ofthe defendants in the previous suit. Ex.A10 would reveal that thesaid Govindammal also filed another I.A.No.424 of 1994 forimpleading the plaintiff/Ashok Kumar's father, Ganesa Mudali as oneof the defendants. Taking advantage of such a situation, AshokKumar/the plaintiff herein could have very well expressed noobjection for impleading him in the proceedings and he could havecontested the matter had he really been genuine in his plea thatthere was collusion between Govindammal and Kanagavalliammal andthat Govindammal was attempting to commit fraud on Ashok Kumar, buthe had not chosen to do so for reasons best known to himself.15.

The following decisions on lis pendens could fruitfullybe referred to: (i) AIR 2008 SC 2560 [Guruswamy Nadar v. P.Lakshmi Ammal(D) by L.Rs. and others.], an excerpt from it would run thus:3. ..... Therefore, it is the admitted positionthat the second sale was definitely after the filing ofthe suit in question. Had that not been the position thenwe would have evaluated the effect of Section 19 of the Specific Relief Act read with Section 52 of the Transferof Property Act. But in the present case it is more thanapparent that the suit was filed before the second saleof the property. Therefore, the principle of lis pendenswill govern the present case and the second sale cannothave the overriding effect on the first sale. Theprinciple of lis pendens is still settled principle oflaw. In this connection, the Full Bench of the AllahabadHigh Court in Smt. Ram Peary has considered the scope of Section 52 of the Transfer of Property Act.

The Full https://hcservices.ecourts.gov.in/hcservices/ Bench has referred to a decision in Bellamy v. Sabine(1857) 44 ER 842 at p.843) wherein it was observed asunder: “It is scarcely correct to speak of lispendens as affecting a purchaser through thedoctrine of notice, though undoubtedly thelanguage of the courts often so describes itsoperation. It affects him not because itamounts to notice, but because the law does notallow litigant parties to give to others, pending the litigation, rights to the propertyin dispute, so as to prejudice the oppositeparty. Where a litigation is pending between aplaintiff and a defendant as to the right to aparticular estate, the necessities of mankindrequire that the decision of the court in thesuit shall be binding, not only on the litigantparties, but also on those who derive titleunder them by alienations made pending thesuit, whether such alienees had or had notnotice of the pending proceedings.

If this werenot so, there could be no certainty that thelitigation would ever come to an end. ”.......Normally, as a public policy once a suit has beenfiled pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, theprinciple of lis pendens has been evolved so that thelitigation may finally terminate without intervention ofa third party. This is because of public policyotherwise no litigation will come to an end. Therefore, in order to discourage that same subject-matter ofproperty being subjected to subsequent sale to a thirdperson, this kind of transaction is to be checked. Otherwise, litigation will never come to an end. "(ii) (2001) 1 MLJ 101 [Bakthavatsalam v. Anjapuli andothers], an excerpt from it would run thus: "That a person is not to be added as a defendantmerely because he or she would be incidentally affectedby the judgment. The main consideration is whether ornot the presence of such a person is necessary to enablethe court to effectually and completely adjudicate uponand settle and questions involved in the suit.

If thequestion at issue between the parties can be worked outwithout any one else being brought in, the strangershould not be added as a party. In the light of the https://hcservices.ecourts.gov.in/hcservices/ language used in O.1, Rule 10(2) of Civil ProcedureCode, as well as various decisions and in the light offactual position in our case that preliminary decree hasalready been passed and application for passing of finaldecree is pending before the court below, the court isof the view that purchasers of properties during thependency of the suit are neither necessary nor properparties inasmuch as they would be bound by the decree inthe suit in view of the principle enunciated in Sec.52of the Transfer of Property Act. The parties sought tobe impleaded as defendants in he suit and respondents inthe final decree application are neither necessary norproper parties. "A plain reading of those decisions would clearly exemplify anddemonstrate, disclose and portray that a third party purchaser ofthe suit property from the defendant in a suit is not bound to beadded as one of the defendants at the instance of the plaintiffs.

As such, in this case, Govindammal who was the plaintiff in theearlier partition suit was not bound to add Ashok Kumar as one ofthe parties to the partition suit.16. The learned counsel for the plaintiff cited thedecision of this Court reported in AIR 1952 Madras 419[K.Peramanayakam Pillai v. S.T.Sivaraman and another], an excerptfrom it would run thus: "37. It only remains to state my conclusions inorder to avoid any confusion.1. A coparcener of a joint Hindu familygoverned by Mitakshara obtaining in the State isentitled to alienate his undivided share either in thewhole of the property or in a certain specific item ofthe property or even the whole of a specific item. Inall such cases the only right which the alieneeacquires is to stand in the shoes of his vendor and towork out his rights by a suit for partition and in sucha suit, if without prejudice to the rights of the othermembers of the family, it is possible to have the sharealienated allotted to the alienor, it may be allottedto the alienee in the right of the alienor. The alieneehas to bear the proportionate share of the commonburden of the family proportionate to the value of theshare alienated to him.

The money so deposited shall bepaid over to the 3rd defendant. The appellant isentitled to his costs throughout. The aforesaid decision in no way lays down any proposition quitedifferent from the proposition as found enshrined in the recentdecision of the Hon'ble Apex Court reported in AIR 2008 SC 2560[Guruswamy Nadar v. P.Lakshmi Ammal (D) by L.Rs. and others.] andthe decision of this Court reported in (2001) 1 MLJ 101[Bakthavatsalam v. Anjapuli and others] (cited supra).17. In fact, the learned counsel for D1/Govindammal wouldconvincingly and appositely argue that at the first instance evenGovindammal was not aware as to who should be added in the partitionsuit as the purchaser pendente lite from Kanagavalliammal and hence, she did choose to file such two applications, one for impleadingGanesa Mudali and another for impleading Ganesa Mudali's son AshokKumar, the plaintiff herein. But after understanding that they wereresisting the applications, she dropped the idea of pursuing thoseapplications.

Pellucidly and palpably, obviously and axiomatically, it is clear that there was golden opportunity for Ashok Kumar to gethimself impleaded in the previous proceedings and establish hisalleged plea that the proceedings pending were collusive in natureand that fraud was attempted to be perpetrated on Ashok Kumar by Govindammal, but he has not chosen to do so. However, in such acase, it is too late in the day on the part of Ashok Kumar to file aseparate suit O.S.No.138 of 2004 with the aforesaid prayers. Thecontention on the part of the plaintiff/Ashok Kumar that as per therecitals in Ex.A1, he discharged the mortgage created by Kanagavalliammal/D2 in favour of Latha, and thereby, he acquiredindependent right over the suit property even prior to the filing ofthe partition suit, is a far fetched argument having no legs tostand legally.18. I am at a loss to understand as to how theplaintiff/Ashok Kumar, a third party to the mortgage which emergedbetween Kanagavalliammal and Latha, simply by purchasing the suitproperty under Ex.A1 the sale deed dated 11.04.1990, during the https://hcservices.ecourts.gov.in/hcservices/ pendency of the previous suit, can claim that he acquired some righteven anterior to the filing of the partition suit.

It is not eventhe case that Latha assigned her mortgage right in favour of herbrother Ashok Kumar. But it is other way about. It is Ashok Kumarwho purchased the suit property from D2 and he undertook todischarge the mortgage and even the endorsement made by Kanagavalliammal on the back of the second sheet of Ex.A8, themortgage deed would reveal that the said mortgage also wasdischarged. As such, the plaintiff/Ashok Kumar by purchasing underEx.A1, the suit property and paying part of the sale considerationso to discharge the mortgage, could claim to have acquired right asa mortgagee whose right accrued even anterior to the filing of thepartition suit.19. The learned counsel for the plaintiff cited thefollowing decisions: (i) AIR 1950 Madras 189 [Gulam Rasool Saheb v. Hamida Bibi],an excerpt from it would run thus: "4. The only question that has to be consideredin this civil miscellaneous second appeal is whether theapplication of the respondent under Section 47, CivilP.C. is maintainable or not.

The mortgage in favour ofthe appellant was long prior to the partition suit and hewas not impleaded as a party to the partition suit. Rahiman Bibi alone was impleaded as defendant 6 in thatsuit and the purchase by the appellant in pursuance ofhis mortgage decree was no doubt during the pendency ofthe partition proceedings. It was contended on behalf ofthe respondent here and also in the Courts below that thepurchase by the appellant is affected by the doctrine oflis pendens and that, therefore he is not entitled toresist the application of the respondent for delivery ofpossession. If the mortgage in favour of Sikkandar wasduring the pendency of the partition suit and the courtsale was also during the pendency of that suit, no doubt, the principle of the decision of the Privy Council in Parmeshri Din v. Ramcharan MANU/PR/0074/1937 would applyand the appellant would not be permitted to rely upon therights which he had acquired under the court sale.

Thiscourt has consistently taken the view that the doctrineof lis pendens should not be extended to cover aninvoluntary alienation in execution of a mortgage decreewhere the mortgage was prior to the suit relied on asoperating to affect the rights of the parties under theprovisions of Section 52, T.P. Act. It is needless torefer to all the cases on the point as they have beenconsidered in Natesa Chettiar v. Subbunarayan IyerMANU/TN/0374/1944. The effect of this line of decisions, in my opinion, is really to date back the rights of thepurchaser in execution of the mortgage decree to the date https://hcservices.ecourts.gov.in/hcservices/ of the mortgage. ....."A plain reading of the said decision would clearly exemplify thatthe facts of this case are entirely different in view of reason setout supra, as in this case there is no involuntary alienationemerged and the plaintiff has not acquired any right in the mortgagealso.

(ii) The decision reported in 1951 KLT 660 (Raman NayarGopalan vs. Lekshmi Amma Bharathi Amma) is relating to the doctrineof lis pendens. (iii) The precedent reported in AIR 1963 Mad 300 (Annammaland Others vs. Chellakutti) would state thus: "For Section 52 to apply, the right to immoveableproperty should be directly and specifically in question. Once there is a dispute, Section 52 will apply, so longas the litigation is terminated in one of the modes knownto law; that is, there will be no distinction between adecision based on contest and that based on a compromisebona fide brought about between the parties. In eithercase it will be a decree of the Court. The section interms contemplates rights having been secured by a partyto the suit under a decree or order therein. The words"under a decree or order therein" imply that the rightto the property must be the outcome of the decree. Inother words, it should be the result of an affirmation ofadjudication by the decree.

The true principleunderlying the rule has been laid down in Annamalai vs. Malayandi, ILR 29 Mad 426 at P.434 (FB) in the followingpassage: "The essence of the doctrine of "lis pendens"undoubtedly is that where a proceeding before a Courtexercising contentious jurisdiction is honestly broughtto a 'termination in one of the modes which the lawpermits' it to be terminated by and a decision of the Court is obtained, such decision is binding upon allpersons who claim title by virtue of a transfer pendingthe litigation. With reference to the underlyingprinciple, there is no conceivable reason for attachinggreater efficacy to a decision arrived at after actualcontest than 'to decisions arrived at otherwise" (italics(here into'') ours).4. The foregoing observation makes it clear thatunless the termination of the suit is honestly broughtabout in one of the visual modes, the doctrine will haveno application". https://hcservices.ecourts.gov.in/hcservices/ The learned counsel for the plaintiff would develop his argument, placing reliance on the cited decision that the earlier partitionsuit was a collusive one and it was fraught with fraud and in such acase, doctrine of lis pendens is not applicable.

What I could understand is that the concept lis pendenscould be successfully pressed into service, if at all, the saleemerged during a litigation ended in a logical manner without anyfraud, coercion or abandonment. My discussion supra would clearlydisplay and evince as to how, absolutely there is no collusionbetween the parties to the partition proceedings. In fact, theywere fighting at arms length and contested the matter hotly andwhereupon, ultimately, the partition resulted. (iv) (1906) 16 MLJ 372 (Annamalai Chettiar vs. MalayandiAppaya Naick and Others) highlights the following on 'lis pendens'"15. ................."The essence of the doctrineof "lis pendens" undoubtedly is that where a proceedingbefore a Court exercising contentious jurisdiction ishonestly brought to a termination in one of the modeswhich the law permits it to be terminated by and adecision of the Court is obtained, such decision isbinding upon all persons who claim title by virtue of atransfer pending the litigation.

With reference to theunderlying principle, there is no conceivable reason forattaching greater efficacy to a decision arrived at afteractual contest than to decisions arrived at otherwise"(v) 1998(2) AWC 842 (Pitamber and another) vs. Board of Revenue, Allahabad and others). An excerpt from it would run thus: "4. ..................... Further, if a party haspurchased a property during the pendency of the suit, hecan move an application for impleadment as one of theparty in the suit under the provisions of Order XXII, Rule10 of Code of Civil Procedure. Smt. Hira Devi after havingsold the property if she does not contest the suit orcolludes with the plaintiffs, the right of the transfereesshall not be affected. In Nathu Dhoju Gholap v. RamchandBalchand and another AIR (33) 1946 Bom 462, it was heldthat if suit is decided between the plaintiff anddefendants on consent or compromise, it must be honest andnot fraudulent or collusive.

In Annammal and others vs. Chellakutti MANU/TN/0108/1963, the Court held thatdismissal of suit brought about by abandonment byplaintiff would not affect title of purchaser pendentelite. " https://hcservices.ecourts.gov.in/hcservices/ In fact, these decisions also are in parimeteria with theproposition found enunciated in the earlier decisions cited supra. As such, the same comments offered for inapplicability of theearlier decisions also are applicable to this decision. (vi) AIR 2002 Karnataka 96 (Ramanagouda Siddanagouda andothers vs. Basavantraya Madivalappa, Mulimani and others). Anexcerpt from it would run thus: "17. The submission of Sri C.B.Srinivasan, learned counsel for the appellant being that in order toescape the rigour of Section 52 of the Transfer of Property Act, it must be shown that the suit filed by theparties was at its inception collusive. If a suit filedat the inception is not collusive, even if the compromisedecree passed is collusive in character, then theprovisions of Sec.52 of the Act is applicable in all itsforce.20.

This section is an expression of theprinciple "pendente-lite nihil innovetor" meaning "Nothingis to be changed during the dependence of the suit". Itembodies an 'equitable principle' and should be soconstrued as to effactuate its purpose; as held by the Supreme Court in Jayaram Mudaliar vs. I.A.Swamy, AIR 1973SC 569. "The purpose of Sec.52 of the Transfer of Property Act is not to defeat any just and equitable claimbut only to subject them to the authority of the Court, which is dealing with the property to which claims are putforward".21. Sec.52 of the Act will wipe out the effect ofa sale validly executed by the person who has theauthority to sell pendente lite but it is only to sub-ordinate the rights based on the decree in the suit. Asbetween the seller and the purchaser, the transaction isperfectly valid and operates to vest a title in thepurchaser (See the decision of the Supreme Court in NaguBai vs.

Shama Rao, AIR 19056 SC 593 para 24).22. In order for application of Sec.52, it isclear that a suit must be pending and it should be non-collusive in character and involves any right to immovableproperty and there must be a transfer by a party to thesuit who has some right under the decree in the suit. (See the decision of the Calcutta High Court in HiranyyaBhushan vs. Guari Dutt, AIR 1943 Cal 247).23. Thus one of the important ingredients for https://hcservices.ecourts.gov.in/hcservices/ application of the principle of lis pendens is that thesuit should be non-collusive in character; but then thefurther question is whether the element of collusivenessmust be present necessarily at the inception of the suitor subsequently, it begins to operate resulting in adecree obtained either by compromise or otherwise, thoughthe institution of the suit at the inception was honestlydone. On this question, various High Courts have takenthe view that even when the suit is honestly institutedbut during trial or later if parties, enter into acompromise collusively and obtain a decree which affectsthe transaction of transfer of immovable property, thenthe doctrine of lis pendens has no application evidentlyon the principle of equity.

Sufficient for my purposes torefer to few of the decisions cited at the Bar. TheTrivancore and Cochin High Courts in the case of Gnanapakiam v. Nadar Ponian Nadar, AIR 1955 Trivancore-Cochin 3 has held: "the rule of lis pendens will apply to compromisedecrees but will not apply only if the compromise was notresult of fraud or collusion. "This decision is to highlight the point that a suit might not be acollusive one at the inception but subsequently, it might be acollusive one. I would like to recollect my finding that there wasno collusion between the parties in the earlier partition suit. Hence, this precedent is also not applicable to the facts andcircumstances of this case.20. The learned counsel for the plaintiff relied on oneother decision of this Court reported in 1996 (2) CTC 611 (VaradaReddiar and another vs. Jayachandran and Others)"10. .................."It was at that time, aquestion came up for consideration whether the decree islegally valid.

The learned Judge said thus:-"When this court finds that a decree suffers froman error of law apparent on the face of the record owingto non-application of mind of the Court, to the relevantprinciples of law, this Court cannot keep silent and allowthe decree to be in force, particularly, when it causesgrave injustice. There can be no doubt whatever thatunder the Hindu Succession Act, certain persons aredesignated as Class I heirs and all of them are entitledto succeed to the estate of the deceased Hindu. There isno earthly reason for depriving the mother of thedeceased, of her legitimate share in the estate which inthis case happens to be a moiety. https://hcservices.ecourts.gov.in/hcservices/ This is a typical case of miscarriage of justicewhich should be rectified the moment it comes to thenotice of the Court. It is only for that reason, I amexercising my powers under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India.

The case on hand is also similar. A decree whichis beyond the scope of the suit has been granted, therebydepriving certain temples of their properties. A wrongfulgain has been obtained by the plaintiffs, respondents 1and 2 herein. The decree passed by the Court below hasresulted in miscarriage of justice. Therefore, this is afit case where I have to exercise my powers under Article227 of the Constitution of India. Accordingly, byexercising my powers under Section 115, C.P.C and Art.227of the Constitution, I modify the decree passed by thecourt below as follows: "The decree of the court below will be read as ifinjunction was there restraining the defendant (thirdrespondent herein) for conducting auction on 24.7.1991 orany other date till 30.6.1992, and the defendant wasentitled to auction or lease out the properties after thesaid period". Placing reliance on the aforesaid decision, the learned counsel forthe plaintiff would develop his argument that if there is errorapparent on the face of the record, the decree is not executable.21.

The learned counsel for the plaintiff would submit thatthe sixth item in the earlier partition proceedings, which is thesuit property herein, is a small portion in a corner alone, whichwas allotted to the plaintiff's vendor and the remaining wasunjustifiably not allotted to her and as such, the plaintiff cannotfully work out his equity on that small moiety.22. I would like to point out that my discussion suprawould disclose and display, convey and portray that the plaintiff, qua vendee who only stepped into the shoes of Karpagavalliammal, hisvendor cannot get re-opened the allotments made in the earlierpartition proceedings as the present plaintiff is bound by thepartition proceedings and he cannot convert this second appeal assecond appeal over the earlier partition proceedings. A fortiori, Ihold that, by invoking the concept error of law, this second appealcannot be made to be treated as second appeal over the earlierpartition proceedings. https://hcservices.ecourts.gov.in/hcservices/

Such a decree must be set aside if ithas been passed in violation of law. For the saidpurpose, the provisions contained in the Limitation Act,1963 would be applicable. It is not the law that wherethe decree is void, no period of limitation shall beattracted at all. In State of Rajasthan v. D.R.Laxmi this Court held: (SCC p.453, para 10)"10. The order or action, if ultra vires thepower, becomes void and it does not confer anyright. But the action need not necessarily be setat naught in all events. Though the order may bevoid, if the party does not approach the Courtwithin reasonable time, which is always a questionof fact and have the order invalidated oracquiesced or waived, the discretion of the Courthas to be exercised in a reasonable manner. Whenthe discretion has been conferred on the Court, the Court may in appropriate case decline to grant https://hcservices.ecourts.gov.in/hcservices/ the relief, even if it holds that the order wasvoid.

The net result is that extraordinaryjurisdiction of the Court may not be exercised insuch circumstances. It is seen that theacquisition has become final and not onlypossession had already been taken but referencewas also sought for; the award of the Court under Section 26 enhancing the compensation was alsoaccepted. The order of the appellate Court hadalso become final. Under those circumstances, theacquisition proceedings having become final andthe compensation determined also having becomefinal, the High Court was highly unjustified ininterfering with and in quashing the notificationunder Section 4(1) and declaration under Section6."In the light of the dictum of the Hon'ble Apex Court, my discussionsupra would exemplify that Ashok Kumar being a purchaser pendentelite of the right of D2/Kanagavalliammal, if at all wanted to treatthe previous partition decree passed as one not binding him, heshould have prayed for setting aside the said partition decree onthe ground of fraud, but he has not chosen to do so.