Dharambir Singh v. Yogesh Chand & Ors.

13.CR No.1276 of 2010 titled Smt.Bimla & Ors.Vs. Yogesh Chand & Ors., as common questions of law and facts are involved in these revision petitions. of 2010. For the sake of brevity, facts are being taken from CR No.1094 The petitioners in these revision petitions have challenged the orders dated 1.3.2008 and 29.10.2009, passed by the learned courts below, dismissing the objections to the execution of the decree. The petitioners filed objections, by pleadings that they were owners in possession of the houses situated within the area of Ashok Vihar, Gohana Road, Sonepat, which were purchased by them, bona fide for consideration without notice of the pending litigation. Houses were purchased by the objectors, from a person who had purchased it from the CR No.1094 of 2010 3 previous vendor. The case of the petitioners was, that they had ascertained the ownership and possession of the vendor and verified the ownership from revenue record and thereafter, entered into agreement to purchase. Possession of the houses in dispute, was handed over to the petitioners which was developed into a Residential Colony. Electric Connections & telephone connections have been sanctioned in favour of the petitioners. It was also the case of the objectors that in spite of their possession since 1982, they were not impleaded as party at any point of time, nor any notice was received by them. Objection was also raised that the execution was a result of collusion, and further, that the decree holder was estopped by his own act and conduct, to file the execution petitions, as he new about the construction raised on the spot. Objections petition were contested by taking preliminary objection, that the judgment debtor or their successor-in-interest, did not have a valid and legal title to the property. Pleaded case of the decree holder, was that the vendor could not convey better title to vendee than the one he has. Sale deeds were, therefore, said to be void, ab initio, non est and hit by the principles of lis pendens. On merit, ownership of the objectors was denied. It was pleaded that the objectors were liable to restore back the possession, under Section 144 of the Code of Civil Procedure (for short the Code). It was also pleaded case of the decree holder that conveyance deed in favour of the objectors, was executed after the judgment of Hon'ble High Court dated CR No.1094 of 2010 4

15.10.1986. Factum of construction was accepted. However, it was pleaded that the objectors cannot take any advantage of their own wrongs. It was also the case of the decree holder, that no party can be permitted to frustrate the decree passed by the court of law, which has attained finality. As already observed above, plea was also taken that the sale deed in favour of the objectors was fraudulent and not binding on the decree holder. The plea of the petitioners that application under section 144 of the Code was not maintainable, for want of variance of judgment and decree, was not accepted. Similarly, plea of the petitioners that they were protected under section 41 of the Transfer of Property Act being bona fide purchasers was also not accepted. Question of estoppel pleaded was also decided in favour of the decree holder. The learned executing court held that as the possession was to be taken under a decree, decree holder could get the possession. Learned Executing Court held that objectors being transferee pendente lite could not raise objection, against the execution of the decree by pleading that principle of estoppel enshrined under section 41 of the Transfer of Property Act is subject to Section 52 of the Transfer of the Property Act. Issues were also not framed as there was no dispute on facts alleged in the objections. Each and every contention raised by the objectors/petitioners, was considered in detail while dismissing the objections filed by the petitioners by the learned Civil Judge, Senior Division, Sonepat in his order dated 1.3.2008. CR No.1094 of 2010 5 Appeal filed against the order of the learned executing court was also dismissed, by upholding the reasoning given by the learned executing court. Mr.Arun Jain, learned senior counsel appearing on behalf of the petitioners contended that the sale deed executed in favour of the decree holder dated 10.12.1971 was pre-empted by Rajinder Parsad and Tirath Dass sons of Nanhe Ram. The suit was decreed on 17.1.1977 and in pursuance thereto mutation was sanctioned in favour of Rajinder Parsad and Tirath Dass on 29.5.1977. In pursuance to the sanction of mutation they were recorded as owners who during the pendency of regular second appeal sold the property to different persons by claiming themselves to be owners by carving out a colony. It is not in dispute that the regular second appeal was allowed and the sale in favour of decree holder was upheld, by dismissing the suit for pre-emption filed by Rajinder Parsad and Tirath Dass. It is also not in dispute that the petitioners are transferees pendente lite. Learned senior counsel for the petitioners has, on the facts stated above, vehemently contended that the petitioners were unaware of the pending litigation of the decree and therefore, by taking necessary steps, at their command, spent their whole-life earnings to purchase the plots on which they have constructed the houses, therefore, the petitioners being bona fide purchasers, were entitled to protect their possession against execution. Learned senior counsel for the petitioners, also challenged the CR No.1094 of 2010 6 impugned orders on the plea that objections filed by the petitioners were summarily rejected even though these were third party objections and therefore, it was necessary for the court to have framed, issues and permitted the parties to lead evidence. The contention of the learned senior counsel was that as the judgment on the third party objections, is like a decree, therefore, it was incumbent upon the learned executing court to have framed issues and to have permitted the parties to lead evidence. Learned senior counsel also contended that the learned Executing Court in spite of admission by the decree holder, that physical possession is not disputed, has chosen to non suit the petitioners, though the averments made went unrebutted. The petitioners being bona fide purchasers, in any case, were entitled to protect their possession on equity. On consideration, I find no force in the contentions raised by the learned counsel for the petitioners. Though facts and circumstances show that the petitioners are bona fide purchasers without notice, as the necessary pre-caution which was required to be taken by them was taken, before purchasing the plots on which the petitioners have raised construction of their houses. The offer made for the purchase of the plot in this court did not materialize for want of fixation of price, as the petitioners did not accept the offer of the respondent to purchase the plot at the market rate. Objections filed by the petitioners, on the ground of being bona fide purchasers cannot be accepted in view of the law laid down by Hon'ble Supreme Court in the case of Sanjay Verma Vs. Manik Roy & CR No.1094 of 2010 7 Ors. 2007 (1) RCR (Civil) 408, wherein Hon'ble Supreme Court has been pleased to lay down as under:- “11. The principles specified in Section 52 of the T.P.Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienation are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in section 52 of the T.P.Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The Section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court.” Again in Usha Sinha Vs. Dina Ram and Ors. 2008 (3) RCR (Civil) 145. Hon'ble Supreme Court has been pleased to lay down that lis pendens itself is treated as a constructive notice. Judgment of Hon'ble Supreme Court reads as under:- CR No.1094 of 2010 8 “18. It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent Court. The doctrine of 'lis pendens' prohibits a party from dealing with the property which is the subject matter of suit. 'Lis pendens' itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment debtor, he cannot seek benefit of Rule 98 or 100 of Order XXI.” Therefore, the contention of the learned senior counsel for the petitioners that the petitioners being bona fide purchasers for consideration without notice cannot be accepted in view of the authoritative pronouncement of Hon'ble Supreme Court referred to above. The contention of the learned counsel for the petitioners that the impugned order was liable to be set aside as the objections were summarily rejected also deserves to be noticed to be rejected. In support of this contention, learned senior counsel for the petitioners placed reliance on the judgment of this court in the case of Pohlo Ram Sharma and Ors. Vs. Narinder Singh Randhawa and Ors., 2008 (1) RCR (Civil) 442. The judgment relied upon by the petitioners would CR No.1094 of 2010 9 have no application to the facts of the present case in view of the stand taken by the decree holder admitting the averments made in the objection petitions to be correct. The object of framing issues and giving opportunities to parties to lead evidence, in case of third party objections is to enable the parties to prove their case. Once the averments made in the objection petition were admitted by the decree holder, thus, there was no necessity of the Executing Court to frame the issues, and ask the parties to prove what already stood admitted. Once the averments made in the objection petitions stood admitted, and the petitioners were not entitled to any relief on admitted facts. It cannot be said that the learned Executing Court committed an error in rejecting the objections without framing issues as contended. As already observed above, detailed order has been passed by the courts below, by meeting with all the contentions raised. For the reasons stated, finding no merit in the revision petitions, these are dismissed.

19.3.2010 (Vinod K.Sharma) Judge