In a regular second appeal regarding land ownership, the appellant challenged a sale deed executed by vendor during pending litigation. The court held that since the compromise in the appeal did not explicitly cover the specific suit land, the lis pendens principle did not apply, and the respondent purchaser retained valid title.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No.637 of 1986 (O&M)
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No.637 of 1986 (O&M) Date of decision: 23.12.2014
Joginder Kaur and another
... Appellants
Vs.
Harnek Singh and others
... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present:Mr. Rajan Bansal, Advocate for the appellants.
Mr. Surinder Garg, Advocate for respondent No.1.
AMIT RAWAL J
Defendant-appellants are in regular second appeal
against the judgment and decree dated 20.03.1985 vide which the suit of the plaintiff-respondents claiming declaration, that they are owners in possession of land measuring 15 kanals 10 marlas(0-7841) khewat No.150 Khatoni No.253 killa No.297//12/2/2-0 (0-10-12), 3/1/(4-0), (0-20-23) 4/1/6-0(0-30-35), 6/2/1/1-10 (0-07-59) 7/1/2-0(010-12) as per jamabandi 1980-81 in the revenue estate of village Sanghera, vide registered sale dated 7150 dated 6.3.1980 and the judgment and decree dated 11.02.1981 of this Court in favour of
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defendant No.1-Joginder Kaur and her husband defendant No.2 obtained by fraud, mis-stating the facts, ineffective and void as against ownership rights of the plaintiff, had been decreed and the appeal filed by Joginder Kaur-defendant No.1 before the lower Appellate Court was also dismissed thus, in essence, findings of trial Court were affirmed.
It would be relevant to state few facts which are essential and necessary for adjudication of present regular second appeal. Plaintiff/respondent-Harnek Singh filed civil suit bearing No.107 of 1983 for declaration that he is owner in possession of the land described above, on the basis of sale deed dated 06.03.1980 executed by Govind Singh. It had been stated in the suit that Bhag Singh was the original owner of the suit land, he made gift in favour of Govind Singh-defendant No.3 of the land measuring 15 kanals 10 marlas vide gift deed dated 20.01.1967 and Govind Singh, thereafter, sold the suit land to the plaintiff-respondents for a valuable consideration of 2 lacs through registered sale deed dated 06.03.1980 and thereafter took the possession of the suit land after getting mortgage redeemed on payment of 6,000/- as the property at relevant point of time was mortgaged with one Amar Singh. It had further been stated that Govind Singh, in the year 1974 filed a civil suit bearing No.339/1974, for declaring him to be the owner of the land as described in the gift deed dated 20.01.1967 against Joginder
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Kaur and Pritam Kaur.
As per the case set out by Govind Singh-nephew of Bhag Singh who had challenged the gift deed dated 27.09.1968 of land measuring 15 kanals 10 marlas in favour of Pritam Kaur and gift deed dated 21.01.1968 of the land measuring 20 kanals in favour of Joginder Kaur which was without any right as his gift deed dated 20.01.1967 was prior in existence and therefore, both the gift deeds in favour of Joginder Kaur and Pritam Kaur were required to be treated inoperative against his rights.
The aforementioned suit was decided by the trial Court vide judgment and decree dated 12.01.1976. In the said suit, Baldev Singh, Joginder Kaur and Pritam Kaur etc were arrayed as defendants. The judgment and decree dated 12.01.1976 (Ex.P12) was challenged by none else but husband of Joginder Kaur i. e Baldev Singh by filing an appeal before the First Appellate Court at Barnala. The First Appellate Court vide judgment and decree dated 19.11.1976 (Ex.P11) dismissed the appeal of Baldev Singh and upheld the judgment and decree dated 12.01.1976 of the Civil Court. In the judgment and decree dated 12.01.1976 (Ex.P12), trial Court found that gift deed dated 20.01.1967 was validly executed by Bhag Singh in favour of Govind Singh.
Both the judgments and decrees were challenged by Joginder Kaur wife of Baldev Singh in this Court by filing a regular
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second appeal bearing No.586 of 1977. It may be noticed here though Pritam Kaur had died, the legal representatives of Pritam Kaur (since deceased) did not challenge the decrees dated 12.01.1976 (Ex.P12) passed by the trial Court and 19.11.1976 (Ex.P11) of the lower Appellate Court in respect of the land measuring 15 kanals 10 marlas. The lower Appellate Court found neither the compromise nor the memorandum of appeal of RSA No.586 of 1977 was placed on record, but only one affidavit which noticed the execution of the compromise, the aforementioned RSA was disposed of vide order dated 11.02.1981 (Ex.P16).
From the narration of the facts, it is Joginder Kaur who had been espousing her cause in the appeal by challenging Ex.P11 and Ex.P12 in respect of the land measuring 20 kanals.
It would be relevant to mention here that findings on issue Nos.1 and 2 were rendered in favour of the plaintiff-respondents. For the sake of brevity, findings on issue Nos.1 and 2 are extracted herein below:-
“9 In order to dispose of this suit history of devolution of the suit property is required. The certain facts are admitted by both the parties. It is a fact that initially the suit land and other property was owned by Bhag Singh son of Prem Singh. Said Bhag Singh made gift of his
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land measuring 35 kanals 10 marlas in favour of Govind Singh defendant No.3 though registered gift deed dated 20.01.1967. This land was comprised in khasra No.297/2/2/(20), 3/1(4-0)4/1(6-0) 7/2(2-0)6/1(1-10) rect. No.116//14(8-0) 16(8-0) and 17/1(4-0). Thereafter, said Bhag Singh made another git on 27.01.1968 in favour of defendant Joginder Kaur of his land measuring 117 kanals 2 marlas including the 20 kanals of land out of the land gifted earlier to defendant No.3 Govind Singh. Further said Bhag Singh made third gift in favour of his wife Pritam Kaur on 21.09.1968 and gifted away his land measuring 23 kanals 11 marlas including the suit land measuring 15 kanals 10 marlas. Accordingly, land gifted to defendant No.3 by said Bhag Singh was further gifted away to Pritam Kaur his wife and Joginder Kaur defendant No.1. When the defendant Govind Singh came to know this fact he filed suit against defendants No.1 and 2 legal heirs of above said Pritam Kaur for possession of land
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measuring 35 kanals of land and symbolical possession of 15 kanals 10 marlas now involved in this Court because this was under mortgage with Amar Singh. A copy of plaint in this respect Ex.P4 and written statement Ex.P6. This suit was decreed by learned Sub Judge Ist Class Barnala on 12.1.76 copy of which is Ex.P12 on the record. Against this judgment and decree, Baldev Singh defendant No.2 filed an appeal before the Additional District Judge, Barnala. But the same was decided against him. It may be made clear here that claim of the defendant Joginder Kaur and Baldev Singh was only with respect to land measuring 20 kanals which formed part of the land gifted to defendant Govind Singh and was again gifted to Joginder Kaur through Ex.P3. The suit of defendant No.3 filed through plaint Ex.P4 was never contested by Pritam Kaur or his legal heirs and ex parte decree was passed against them through Ex.D12. But said Pritam Kaur or his legal heirs did not file appeal against the
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judgment dated 12.01.1976 Ex.P12. The appeal of defendant No.2 was also Govind Singh was also dismissed and judgment and decree in favour of defendant No.3 was upheld by order of he learned District Judge Barnala, a vide Ex.P11. However, defendants No.1 and 2 filed an appeal in the Hon'ble High Court in which dispossession of defendants No.1 and 2 was stayed till disposal of the appeal. However, defendant No.3 made compromise with defendants No.1 and 2 and admitted their claim involved in that appeal. Consequently, suit of the plaintiff was dismissed by order of the Hon'ble High Court dated 11.2.1981. In the meantime, defendant No.3 Govind Singh sold the suit land to plaintiff through sale deed dated 6.3.80. Copy of which is Ex.P2 on the record. So, in view of these admitted facts claim of the defendants is that sale deed made by defendant No.3 in favour of plaintiff during pendency of the proceedings in the Hon'ble High Court is ineffective and invalid.
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10 However, the contention of learned counsel for the plaintiff is that suit land never formed part of the gift made in favour of defendant No.1 by said Bhag Singh and that suit land formed part of the gift made in favour of Pritam Kaur by said Bhag Singh whose legal representatives never contested the suit even in the lower Court and decree against them passed on ex parte. He contended that Appeal was made by defendant No.1 and 2 only before the Addl. District Judge Barnala and the Hon'ble High Court and these defendants could contest the claim of defendant No.3 only with respect to property which was gifted to defendant No.1 by said Bhag Singh through gift deed Ex.P3 dated 27.1.68.
11. I have gone through the documents on record of the previous proceedings with respect to suit land. It is a fact that the suit land which was initially gifted to Govind Singh by Bhag Singh its original owner was further gifted to Pritam Kaur wife of said Bhag Singh.
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The suit land being under mortgage. Defendant No.3 only sought symbolical possession of the suit land through the suit filed on 28.10.74 through plaint Ex.P4 because he could not get the actual possession of the suit land except after redemption of the mortgage. Said Pritam Kaur in whose favour the suit land was gifted subsequently or his legal heirs never contested the suit of the plai8ntiff in the court of Ld. Sub Judge Ist Class, Barnala and decreed against them was passed ex parte. The appeal against said judgment and decree dated 12.1.76 was filed only by Baldev Singh defendant No.2 who is husband of defendant Joginder Kaur. Clearly, they could contest the claim of defendant No.3 Govind Singh in the appeal only to the extent of land measuring 20 kanals which formed part of the gift in favour of Joginder Kaur through Ex.P3. Their appeal before the Addl. Distt Judge Barnala also failed. Subsequently, defendants No.1 and 2 filed an appeal before the Hon'ble High Court.
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There also they could contest the claim of the defendant No.3 with respect to 20 kanals of land which formed part of gift in favor of defendant No.1 Joginder Kaur through Ex.P3. They could not have any claim over the suit land measuring 15 kanals 10 marlas which formed part of gift of Pritam Kaur because claim of defendant No.3 Govind Singh was never contested by said Pritam Kaur or his legal heirs with respect to the suit land. So, before the Hon'ble High Court suit land was never involved in the litigation and that defendants No.1 and 2 were contesting with defendant No.3 only with respect to the land measuring 20 kanals which is different from the suit land. So, even if any decree was passed by the Hon'ble High Court on the admission of defendant No.3 Govind Singh that does not effect the rights of the plaintiff who purchased the suit land from Govind Singh defendant No.3. Obviously, decree passed in favour of defendant No.3 vide judgment dated 12.1.76 copy of which is
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Ex.P12 was final with respect to suit land because said decree was no challenged in the first appeal or in the second appeal before the Hon'ble High Court by Pritam Kaur or his legal representatives. So, it is clear that litigation before the Hon'ble High Court was not pending with respect to suit land when the land was sold by defendant No.3 to plaintiff on 6.3.80 through registered sale deed Ex.P2. 12. In view of above discussion it is clear that suit land was gifted to defendant No.3 by its original owner Bhag Singh through gift deed Ex.P5 and said Govind Singh defendant No.3 being its owner transferred the same to plaintiff through sale deed dated 6.3.80 copy of which is Ex.P2 on the record. Consequently, plaintiff acquired valid title with respect to suit land and in this respect there is no effect on the rights of the plaintiff by decree passed by the Hon'ble High Court on 11.2.81 on the admission of defendant No.23 Govind Singh. So, the fact whether plaintiff was aware of the proceedings before the
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Hon'ble High Court when he purchased the suit land or not is not relevant because suit land never formed part of the litigation at that time before the Hon'ble High Court.
13. Thereafter, plaintiff took possession of the suit land on payment of Rs.6000/- to the mortgage through receipts Ex.P7 and P.8. This fact was admitted by Amar Singh when he appeared as PW5. He admitted that after receipt of Rs.6000/- through receipt Erx.P7,P8 the possession of the suit land was delivered to the plaintiff. The entries in the jamabandi Ex.P14 and Khasra girdawari Ex.P15, Ex.P17 indicate that plaintiff is in possession of suit land. However ld. Counsel for the defendants contended that land which was got redeemed by the plaintiff on payment of Rs.6000/- to Amar Singh mortgagee is not the suit land and the land mortgaged with said Amar Singh was different as indicated in the mortgage deed is on the record on the back of which is, receipt Ex.P7. It is true that land mentioned in this mortgage deed is different from the suit
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land. However, it is admitted case of both the parties that only the suit land was in possession of Amar Singh as mortgagee. It is possession of Amar Singh as mortgagee. It is possible that said Amar Singh had been in possession of the suit land by agreement with original owner Bhag Singh though different wand was mortgaged through registered mortgage deed by the mortgagee. This fact was admitted by defendant No.3 in the para No.5 of the plaint when he initially filed the suit against defendants No.1 and 2. It was clearly indicated that suit land was mortgaged with Amar Singh and this fact was admitted to be correct by the defendants in their written statement Ex.P6. So, suit land was in possession of Amar Singh as mortgagee and he delivered the possession to plaintiff after receiving Rs.6000/- and after redemption of the mortgage. So, it is held that plaintiff had been in possession of the suit land as owner.
14. Another point was raised by learned counsel for the defendants that in view of
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orders of the Hon'ble High Court dispossession of defendant Joginder Kaur and Baldev Singh was stayed vide order Ex.D4, Ex.D5 and plaintiff could not take possession of the suit land in pursuance of said orders when the sale deed was executed in his favour on 6.3.1980. Obviously, in view of the circumstances of the case the suit land was not in possession of either defendant No.1 or defendant No.2 but it was in possession of Amar Singh as mortgagee. Plaintiff got possession of the suit land from said Amar Singh after redemption of the mortgage. As indicated above, suit land was never formed part of the litigation which was a pending before the Hon'ble High Court because this part of the land never formed part of gift of Joginder Kaur defendant No.1 and obviously, there was no contest between defendants No.1 and 2 on the one hand and defendant No.3 on the other with respect to suit land.
15. In view discussion above, it is proved
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that plaintiff is in possession of the suit land as owner. This issue is, therefore, decided in favour of the plaintiff and against the defendants.
Issue No.2.
16. In view of my discussion in respect of issue No.1 it is clear that suit land never formed part of the litigation between defendants No.1 and 2 on the one hand and defendant No.3 on the other and that decree passed in favour of defendants No.1 and 2 by the Hon'ble High Court in a compromise with the defendant No.3 is obviously not applicable to the suit land and that decree is null and void qua the suit land. This issue is, accordingly decided in favour of the plaintiff and against the defendants. ”
It is pertinent to mention here that in the appeal filed by Joginder Kaur and her husband - Baldev Singh against judgment and decree of the trial Court, pertained to the land measuring 20 kanals which was stated to be gifted to Joginder Kaur vide gift deed dated 21.01.1968 and not with regard to 15 kanals 10 marlas which was allegedly executed in favour of Pritam Kaur vide gift deed dated
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27.09.1991. Thus, for all purposes, neither Joginder Kaur much less Bhag Singh had no concern with the suit property land measuring 15 kanals 10 marlas.
As already observed above, neither Pritam Kaur nor her LRs at any point of time contested the decree meaning thereby, gift deed dated 20.01.1967 executed by Bhag Singh at least in respect of land measuring 15 kanals 10 marlas in favour of Govind Singh remained intact.
The lower Appellate Court while dismissing the appeal, observed that neither alleged compromise executed between Joginder Kaur and Govind Singh nor the memorandum of appeal had been brought on record to suggest that the compromise or memorandum of appeal was in respect of the entire land measuring 35 kanals 10 marlas or was confined to only 20 kanals.
Thus, the lower Appellate Court did not set aside the sale deed dated 06.03.1980 which pertains to the land measuring 15 kanals 10 marlas in favour of Harnek Singh-plaintiff/respondent. It is pertinent to mention here that sale deed dated 06.03.1980 had been executed during the pendency of regular second appeal bearing No.586 of 1977 (which was disposed of vide order dated 11.02.1981 (Ex.P16).
In view of the aforementioned facts, particularly after
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noticing Ex.P16 the order of this Court dated 11.02.1981 it could not in any way effect the rights of Harnek Singh-plaintiff/respondent in respect of the land measuring 15 kanals 10 marlas.
The appellant-defendants in the present regular second appeal assailed the judgment and decree of the both the Courts below by raising following substantial questions of law:-
“1. Whether the impugned judgment and decree are based upon the surmises and conjecture, misreading of evidence and findings recorded therein are perverse?
2. Whether alleged sale by Govind Singh in favour of Harnek Singh-respondent during the pendency of the RSA is not hit by Section 52 of Transfer of Property Act?
3. Whether Govind Singh had remained/left any right in the suit property as he had got dismissed his suit by suffering his statement before Hon'ble High Court?
4. Whether Harnek Singh/respondent cane derive better title than his vendor Govind Singh especially when Govind Singh had got dismissed his suit and more especially when the gift deed of the suit property in favour of
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appellants is not set aside?”
Mr. Rajan Bansal, learned counsel appearing on behalf of the appellant-defendants submitted that Govind Singh executed sale deed dated 06.03.1980 in favour of Harnek Singh, which was hit by principles of lis pendens as enshrined in Section 52 of the Transfer of Property Act. He further submitted that Govind Singh was left with no right and title in the property as his previous suit was dismissed. In support of his submission with regard to the sale deed being hit by principles of lis pendens cited following judgments:-
1. Yogeshwar Education Trust vs. Gurmeet Kaur and others 2009(2) CicCC345;
2. Sher Singh through LRs Amarjit Kaur and others vs. Krishan Kumar 2011(4) PLR 367; and
3. Balwinderjit Kaur vs. Financial Comm.(Appeals) Punjab 1986, R.R.R. 137
A perusal of the Division Bench judgment of this Court, rendered in Yogeshwar Education Trust's case (supra) and it is manifest that principles of lis pendens would apply even if the appeal was pending. For the sake of brevity, the question answered by this Court in paragraph 23 of the aforesaid judgment is extracted herein below:-
“23. Accordingly, question Nos.(i) is answered by holding that the principles of lis pendens would apply in respect of
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transfers/alienation which have been effected after filing of the Special Leave Petition before the Supreme Court and before leave to appeal has been granted. The answer to question No.(ii), which is ancillary has to be that the order granting leave to appeal has to take effect from the date of filing the Special Leave Petition and not from the date the leave to appeal was granted. Therefore, the view expressed in Mewa Singh's case (supra) by the learned Single Judge of this Court, with utmost respect, is not correct and is hereby overruled, inasmuch as, this Court has observed that the remedy under Article 136 of the Constitution is an extra ordinary remedy and is not in the ordinary line of appeal and that the proceedings became pending only when leave to appeal was granted. The aforesaid reasoning does not commend itself to us. Therefore, with utmost respect we overrule the aforesaid view, especially when it comes into conflict with the observation made by Hon'ble the Supreme Court in
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Kunhayammed's case (supra).”
Whereas on the other hand, Mr. Surinder Garg, learned counsel appearing on behalf of plaintiff/respondent No.1-Harnek Singh contended that since compromise and memorandum of appeal were not brought on record before the trial Court, it is not deciphered as to what was the nature and content of the compromise much less area of the land . He further submitted that ratio descendi as culled out in the judgment cited above would not be applicable to the facts and circumstances of the present case exfacie as the compromise pertained to the land measuring 20 kanals, for, it was Joginder Kaur who had challenged the judgment and decree dated 19.11.1976 (Ex.P11) and 12.01.1976 (Ex.P12) by virtue of which Govind Singh had been declared owner of the suit property and Joginder Kaur admittedly had become the owner of the property measuring 20 kanals vide gift deed dated 21.01.1968. He further submitted that since Pritam Kaur did not challenge the aforementioned judgments and decrees Ex.P11 and Ex.P12, in favour of Govind Singh the ownership in respect of the land measuring 15 kanals 10 marlas by virtue of gift deed executed in his favour by Bhag Singh remained intact.
I have heard learned counsel for the parties and appraised the impugned judgments and decrees and the record of the trial Court.
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Having given due regard to the submissions of learned counsel appearing on behalf of the appellants-defendants, I am of the view that Section 52 of the Transfer of Property Act as interpreted by the Hon'ble Division Bench of this Court and by other Courts do not apply to the facts and circumstances of the case, for, as the compromise which was alleged to have been arrived at between Joginder Kaur and Govind Singh nor the memorandum of appeal by virtue of which Joginder Kaur and her husband challenged decree dated 19.11.1976 Ex.P11 had been placed on record. Thus, this Court is oblivious as to how much area of the land was subject matter of the compromise, thus is compelled to draw adverse inference against the appellants and presumption is under Section 114 of the Specific Relief Act in favour of plaintiff-respondent No.1.
In view of what has been stated above, Ex.P16 would not apply to the sale deed dated 06.03.1980 as by that time Govind Singh's title had not been declared to be invalid. It is only on 11.02.1981, that the regular second appeal was disposed of vide Ex.P16 that too in terms of compromise. Therefore, at the best ownership of Govind Singh in respect of land measuring 15 kanals 10 marlas remained intact. Had the compromise or memorandum of appeal containing the details of the sale deed, if any, been placed on record, the argument of Mr. Rajan Bansal, Advocate appearing on behalf of the appellants would have weight and substance and in
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these circumstances, this Court would not be in a position to render the finding by taking into consideration the ratio descendi of the law laid down in Yogeshwar Education Trust (supra). The finding of lower Appellate Court while dismissing the appeal that the compromise or memorandum of appeal had been withheld from the notice of the Court in order to arrive at just equitable finding of fact and law is based on appreciation of fact and law and do not suffer from illegality and perversity. The lower Appellate Court found that Ex.P11 qua the suit land measuring land 15 kanals 10 marlas had thus become final and Harnek Singh being purchaser of the suit land from Govind Singh had rightly been declared owner of the land by the trial Court.
I am also of the view that judgment of this Court passed in RSA No.586 of 1977 (Ex.P16) disposed of vide order dated 11.02.1981 (Ex.P16) would not effect the right of respondent No.1/plaintiff regarding the suit land measuring 15 kanals 10 marlas, despite the fact that plaintiff was aware of the pendency of the proceedings and the sale, in absence of contents of compromise or memorandum of appeal, in favour of Harnek Singh during pendency of appeal would not effect by provisions of Section 52 of the Transfer of Property Act.
In view of what has been observed above, I affirm and upheld the findings of both the Courts below.
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No substantial question of law arises as sought to be
raised in the present appeal arise for adjudication of this Court.
Accordingly, the appeal is dismissed.
(AMIT RAWAL) JUDGE
December 23, 2014 savita
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3 issues framed by the court
Whether the alleged sale by Govind Singh in favour of Harnek Singh during the pendency of the regular second appeal is hit by Section 52 of the Transfer of Property Act?
Whether the compromise or memorandum of appeal disposed of the rights of the plaintiff regarding the specific suit land measuring 15 kanals 10 marlas?
Whether the appellants had any right or title in the suit property after their suit was dismissed and judgment against them became final?
Colour shows how this judgement treated each authority
Joginder Kaur and another
Harnek Singh
Amit Rawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
