Dismissed

Chejarla Subbayya(died) per LRs A2 to A6 v. Chipinapi Venkatasubbaiah

Telangana HC8 Mar 2013SA/44/1997

Case brief

AI extract

What is this about?

This second appeal challenged a decree dismissing a suit for property. The court held that the sale of property during a suit dismissed for non-prosecution is valid. Recording evidence favored the defendants, the sale deed was not vitiated by lis pendens, and the plaintiff failed to prove title.

What did the court decide?

The second appeal is dismissed; the decree in favour of respondents is maintained; no costs awarded.

Chejarla Subbayya(died) per LRs A2 to A6 Vs Chipinapi… — Partition | Telangana HC (2013)

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HON’BLE SRI JUSTICE K.G.SHANKAR

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Second Appeal No.44 of 1997

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Date: 08-03-2013

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Between:

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Chejarla Subbayya (died) per LRs 2 to 6 .. Appellant/ Respondent/ Plaintiff AND Chipinapi Venkatasubbaiah and 8 others .. Respondents/ Appellants/ Defendants

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HON’BLE SRI JUSTICE K.G.SHANKAR

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Second Appeal No.44 of 1997

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JUDGMENT:

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This is the plaintiff’s appeal. After filing of the appeal, the plaintiff died. His legal representatives were brought on record as appellants 2 to 6. The suit in O.S.No.223 of 1978 was laid by the plaintiff against five defendants before the Principal District Munsif, Kavali. The sole plaintiff sought for a declaration of his title to the plaint schedule property and also sought for possession as well as perpetual injunction. The suit was decreed by the learned trial Judge. Assailing the same, the defendants preferred A.S.No.23 of 1988 before the Subordinate Judge, Kavali. The appellate Court allowed the appeal and set aside the decree passed by the trial

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Court. Aggrieved by the judgment and decree in A.S.No.23 of 1988, the plaintiff came up with the present second appeal.

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2. After filing of the second appeal, the second defendant breathed his last. His legal representatives were brought on record as respondents 6 to 9.

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3. The plaint schedule property consists of 20 ankanams of immovable property together with thatched sheds (kottams) at Morlaparipalem, hamlet of Jummalapenta within the sub-registry of Kavali.

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4. The plaintiff initially laid the suit for perpetual injunction. As the defendants claimed title to the property on the basis of Ex.B.1-sale deed dated 07.05.1973, the plaintiff converted the suit into a suit for declaration, possession and perpetual injunction. Sri M. Ravindra, learned counsel for the plaintiff/appellant produced a genealogical chart showing exhaustively the genealogy of the plaintiff and one Chejarla Naraiah.

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The genealogy, however, is not quite relevant and necessary for consideration of the case. Suffice it notice that the plaintiff by name Chejarla Subbaiah and one Chejarla Naraiah were cousins. It is the case of the plaintiff that during the time of the grandfathers of the plaintiff and Chejarla Naraiah, the ancestral properties of the joint family were partitioned and that the plaint

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schedule property which fell to the share of the ancestors of the plaintiff came to the possession of the plaintiff by inheritance. His further case is that in a 40 ankanams piece of land, plaintiff owns 20 ankanams on the eastern side, whereas his cousin Chejarla Naraiah got western part of 20 ankanams in the ancient partition. Contending that the defendants have been interfering with the possession of the plaintiff over the plaint schedule property, the plaintiff laid the suit for perpetual injunction against five defendants. The defendants, however, contended that through Ex.B.1-sale deed, the second defendant purchased 40 ankanams of site from Chejarla Naraiah including the plaint schedule property. In view of the claim of the defendants setting up title to the plaint schedule property, it became necessary for the plaintiff to convert the suit into a suit for declaration, possession and perpetual injunction.

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5. The learned counsel for the plaintiff pointed out that Chejarla Naraiah earlier filed O.S.No.303 of 1971 against the plaintiff and other cousins seeking a declaration in respect of the plaint schedule property. The suit was dismissed for default on 03.10.1973. While O.S.No.303 of 1971 was pending, the second defendant purchased property from Chejarla Naraiah under Ex.B.1 on 07.05.1973. Thus, the sale of the property by Chearla Naraiah to the second defendant was during the

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pendency of O.S.No.303 of 1971.

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6. The second defendant after he purchased the property under Ex.B.1 filed O.S.No.96 of 1980 seeking for declaration and perpetual injunction. O.S.No.96 of 1980 laid by the second defendant was dismissed on 31.12.1987. A.S.No.24 of 1988 which is the appeal from the judgment and decree in O.S.No.96 of 1980 and S.A.No.38 of 1995 which is the second appeal therefrom were dismissed on 05.09.1994 and 28.11.1995 respectively. It is the contention of the learned counsel for the plaintiff that Chejarla Naraiah has no title to the plaint schedule property and that the second defendant could not acquire title from Chejarla Naraiah who himself did not possess any title. Inter alia, the learned counsel for the plaintiff placed reliance upon admissions made by Chejarla Naraiah in O.S.No.303 of 1971 that the plaintiff has been in possession of the plaint schedule property. It may, however, be noticed that on a complaint against the plaintiff and others in C.C.No.92 of 1978, the plaintiff and others were convicted for trespassing on to the property of the second defendant. The learned counsel for the plaintiff contended that albeit C.C.No.92 of 1978 was subsequent to the suit of the plaintiff and albeit the plaintiff and others were convicted, the judgment in C.C.No.92 of 1978 is not an authority to establish the possession of either the second defendant or Chejarla Naraiah over the

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plaint schedule property.

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7. The main contention of the learned counsel for the plaintiff is that Chejarla Naraiah made admissions in O.S.No.303 of 1971 that the plaintiff is the owner of the plaint schedule property and that such an admission cannot be ignored even if the suit was dismissed. It may be noticed that O.S.No.303 of 1971 was not dismissed on merits but was dismissed for non-prosecution. It perhaps is a moot point whether alleged admissions of Chejarla Naraiah in O.S.No.303 of 1971 as a plaintiff bind Chejarla Naraiah and the second defendant in the present suit. Be that as it is, this being a second appeal, what is the substantial question of law that is involved in this case? The learned counsel for the plaintiff contended that the question whether the first appellate Court erred in appreciating the principle of doctrine of lis pendens is the question of law that is involved in this case as ground No.2 (d), which reads:

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“Whether the lower appellate court has not erred in concluding that the issue relating to lis pendens cannot be decided in the light of the fact that the vendor of the 2^nd respondent has no right to part with the property by virtue of dismissal of O.S.No.303 of 1971 unless and otherwise, it is decided that there is collusion between

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the appellant herein and the vendor of the 2^nd respondent to escape Sec.52 of the Transfer of property Act?”

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In other words, the primary claim of the plaintiff is that the second defendant did not acquire any title over the plaint

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schedule property as he purchased the same while O.S.No.303 of 1971 was pending.

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8. Sri R. Seshidaran Nair, learned counsel for the defendants submitted that when a suit was dismissed as the same was abandoned by the plaintiff, title of the vendee pendente lite would not be affected. In Annammal v. Chellakutti^[1] a Division Bench of the Madras High Court held that the doctrine of lis pendens does not apply unless the termination of the suit is honestly brought about in one or the other of the usual modes. The Bench considered that the abandonment of the suit was not a normal mode of termination and that on such abandonment of the suit, the question regarding the right to the subject matter of the suit ceases to exist and that the very suit should be considered to have not existed. Their Lordships distinguished such abandonment by the plaintiff from otherwise dismissal of the suit on merits.

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9. The learned counsel for the defendants also

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. placed reliance upon Nagubai Ammal v. B. Shama Ra o^[2] Section 52 of the Transfer of Property Act, 1882 (‘the Act’ for short) reads:

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“52. Transfer of property pending suit relating thereto:-During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is

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directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made thereon except under the authority of the Court and on such terms as it may impose.”

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Section 52 of the Act thus proscribes transfer of property pendente lite. In Nagubai Ammal, referring to the words “so as to affect the rights of any other party thereto under any decree or order which may be made therein”, it was observed that the quoted phrase makes it clear that a transfer is good and valid except to the extent that it might conflict with rights decreed under the decree or order. Transfers pendente lite have been held to be valid and operative as between the parties thereto in view of the above mentioned phrase. The Supreme Court also pointed out that the effect of Section 52 of the Act is not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit. As between the parties to the transaction, such a sale is perfectly valid and operates to vest the title of the transferor in the transferee according to the Supreme Court. On the basis of Nagubai Ammal as well as Annammal, the learned counsel for the defendants contended that the rights of the second defendant by virtue of Ex.B.1 sale deed have been crystallized and do not suffer from the rigour of Section 52 of the Act.

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10. It may be noticed that O.S.No.303 of 1971 had

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not been decreed or dismissed on merits. It was dismissed for non-prosecution. I agree with the contention of the learned counsel for the defendants that dismissal of the suit for non-prosecution is tantamount to abandonment of the suit and that at any rate it is not the normal mode of termination of the lis. In that view of the situation, I hold that Section 52 of the Act does not take away the rights of the second defendant, which vested in her through Ex.B.1 sale deed.

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11. The second defendant is the wife of the first defendant. Chejarla Naraiah and his son Ragaiah executed Ex.B.1 registered sale deed dated 07.05.1973 in favour of the second defendant. The learned trial Judge did not believe Ex.B.1 on the ground that the connected agreement of sale was not filed before the Court. I am afraid that there is no rule that a sale deed should be accompanied by the earlier agreement of sale. When Ex.B.1 is a registered sale deed and when it contained a recital that the second defendant was delivered possession at the time of the execution of the sale deed, the defendants have proved their possession. This is indeed confirmed by DW.1, who is the first defendant and the husband of the second defendant.

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12. It is the case of the defendants that Chejarla Naraiah, vendor of the second defendant possessed 40 ankanams of site and that the second defendant

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purchased the whole of the site wherein she erected cattle shed. DW.2 confirms the claim of the second defendant through the evidence of DW.1 that D-2 purchased 40 ankanams of site and not 20 ankanams as claimed by the plaintiff. Curiously, there is no clinching evidence either from the plaintiff or from Chejarla Naraiah regarding the alleged partition by their ancestors nor is there evidence regarding the devolution of the properties upon the plaintiff and Chejarla Naraiah. However, the plaintiff claimed that he has been in possession and enjoyment of the plaint schedule property since over several years. He filed Ex.A.1 certified copy of the plaint in O.S.No.303 of 1971 in support of his contention. O.S.No.303 of 1971, as already noticed, was a suit laid by Chejarla Naraiah claiming title over an extent of Ac.O.69 cents and Ac.1.50 cents of land. Ex.A.2 is a certified copy of the written statement of the plaintiff herein as a defendant in O.S.No.303 of 1971. Ex.A.3 is a certified copy of the decree in O.S.No.303 of 1971. As already noticed, O.S.No.303 of 1971 was dismissed for default. While so, Chejarla Naraiah sold 40 ankanams of land under Ex.B.1 to the second defendant on 07.05.1973. In 1978, the second defendant filed C.C.No.92 of 1978 against the plaintiff and others alleging that they trespassed on to the properties of the second defendant. Ex.B.2 certified copy of the judgment in C.C.No.92 of 1978 shows that the plaintiff and others were convicted by the Court for trespass. It is evident from the

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judgment in C.C.No.92 of 1978 that it is the second defendant who is the owner of the property and not the plaintiff, lest convicting the plaintiff for trespass should not have arisen.

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13. The plaintiff indeed contended that he exercised acts of title and that in 1976, the cattle sheds in his site were damaged owing to cyclone and that the plaintiff was granted Rs.75/- as ex gratia. This plea of the plaintiff remained unproved. Viewed in any angle, there is no evidence establishing the title of the plaintiff over the plaint schedule property, much less, interference of the same by the defendants. As rightly submitted by the learned counsel for the defendants, the question of law as ground No.2 (d) is liable to be answered in favour of the defendants and against the plaintiff holding that Ex.B.1 sale deed between Chejarla Naraiah and the second defendant is valid in between them in spite of the transaction having been entered during the pendency of O.S.No.303 of 1971 and that when O.S.No.303 of 1971 stood dismissed for non-prosecution, the sale of the property by Chejarla Naraiah in favour of the second defendant did not suffer from any infirmity or illegality. Where Ex.B.1 is for an extent of 40 ankanams and where the plaintiff failed to prove his title to the plaint schedule property, the appellate Court was perfectly justified in dismissing the suit. The second appeal is misconceived

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and is liable to be dismissed.

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14. The second appeal is accordingly dismissed. No costs.

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_________________ K.G. SHANKAR, J

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Date: 08.03.2013 Isn

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[1] AIR 1963 Madras 300

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[2] AIR 1956 SC 593

Chejarla Subbayya(died) per LRs A2 to A6 v. Chipinapi Venkatasubbaiah

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Chejarla Subbayya(died) per LRs A2 to A6 v. Chipinapi Venkatasubbaiah

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