Dismissed

Mallidi Latchareddy, (died) per Lr Appellant-11 v. Chinta Sri Panduranga Reddy

Telangana HC17 Apr 2014AS/1855/1994

Case brief

AI extract

What is this about?

Suit for declaration of title over properties allotted to plaintiffs in a partition final decree, and for recovery of possession with profits; defendants who purchased pendente lite resisted. Appeal by defendants dismissed: sales held hit by Section 52 of the Transfer of Property Act and inoperative against plaintiffs, purchasers denied equities, and the decree for possession and profits confirmed

What the court decided

AI extract

Mallidi Latchareddy, (died) per Lr Appellant-11 Vs Chinta Sri… — Partition | Telangana HC (2014)

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HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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APPEAL SUIT No.1855 OF 1994

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JUDGMENT:

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The defendants 2 to 10 in Original Suit No.23 of 1989, on the file of Subordinate Judge (Now Senior Civil Judge), Ramachandrapuram, East Godavari District, preferred this Appeal against the impugned decree and judgment dated 30.08.1994; wherein the trial Court decreed the suit declaring the plaintiffs as owners of the schedule property and directed the defendants to deliver vacant possession of the plaint schedule property and further directed the defendants to pay mesne profits at the rate of Rs.2,700/- p.a. for the preceding 3 years, from the date of filing of the Suit, and also future profits on payment of Court fee, if any.

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2. The appellants herein were defendants 2 to 10 and the respondents 1 to 5 herein were the plaintiffs and 6^th respondent herein was 1^st defendant in O.S. No.23 of 1989, before the trial Court. For the sake of convenience, the parties hereinafter will be referred to as arrayed before the trial Court.

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3. During the pendency of Appeal, first appellant herein died and his legal representative i.e., 11^th appellant herein is brought on record as per the orders of this Court in A.S.M.P. No.2253 of 2008, dated 21.10.2008, and 8^th appellant herein died and her legal representatives i.e., appellants 12 to 14 herein are brought on record as per the orders of this Court in A.S.M.P. No.2342 of 2008, dated 05.11.2008 and the appeal against the 6^th respondent herein is dismissed for default, vide Court order dated 17.12.2007.

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4. The 1^st defendant after filing written statement remained ex parte and an ex parte decree was passed against the 1^st defendant.

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5. The plaintiffs filed the suit, against the defendants, for declaration of title to the schedule property, that they are owners of plaint A, B and C schedule property, to pay mesne profits and to direct delivery of possession of the same by evicting defendants 1 to 7 from A schedule property, defendants 1, 8 and 9 from B schedule property and defendants 1, 10 and 11 from plaint C schedule property and for grant of consequential permanent injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment of plaint A, B and C schedule property, in any manner, whatsoever, alleging that they are brothers and sons of 1^st defendant, constituted as members of Joint Hindu Undivided Family, which possessed considerable property in the villages of Kapavaram, Komaripalem and Balabhadrapuram. As the 1^st defendant has been living with a concubine and addicted to vices and not maintaining the family properly, the plaintiffs were constrained to file a suit in O.S. No.160 of 1980, on the file of Subordinate Judge, Ramachandrapuram and obtained a preliminary decree in the said suit for partition of schedule property.

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6. Later, the plaintiffs filed I.A. No.1184 of 1981 for dividing the schedule property by appointing an Advocate Commissioner for division of property by metes and bounds and deliver vacant possession of 1/6^th share to each of the plaintiffs and 1^st defendant. Accordingly, an Advocate Commissioner was appointed and partition was effected in terms of the preliminary decree and passed the final decree on 22.11.1983, allotting 5/6^th share to plaintiffs 1 to 5 and 1/6^th share to the 1^st defendant. Towards 5/6^th share of the plaintiffs, the Commissioner allotted Ac.13.94-2/3 cents and the 1^st defendant was allotted Ac.2.79-1/8 cents towards his 1/6^th share and accordingly a final decree was passed. The share of the plaintiffs allotted in the partition is inclusive of plaint A, B and C schedule property. As

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possession of the property was not delivered to the plaintiffs, they filed E.P. No.11 of 1984 for delivery of 5/6^th share in terms of the final decree passed in I.A. No.1184 of 1981 in O.S. No.160 of 1980 and through process of the Court the possession of the property was taken delivery except an extent of Ac.0-69 cents in R.S. Nos.583 and 584/1 of Balabhadrapuram village, which is described more particularly in C schedule of the plaint.

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7. Medapati Seshayya, 11^th defendant in the suit obstructed for delivery of C schedule property at the instance of Dwarampudi Eswarareddi and Chinta Satyanarayanareddi, 10^th and 1^st defendants, who are his close associates and friends. The property described in A schedule in an extent of Ac.0-17½ cents covered by R.S. No.378/2 in Komaripalem village was actually delivered to the plaintiffs on 07.03.1984 by the Court Amin, but after delivery, defendants 2 and 3, with the aid of Mallidi Satyanarayana Reddy, 5^th defendant, elder brother of defendants 2 and 3, father of defendants 4, 5 and 7, husband of 6^th defendant trespassed into plaint A schedule property, at the instance of 1^st defendant. Thereafter, the defendants 2 to 7 filed E.A. No.89 of 1984 which ended in dismissal for default and later, petition filed to restore the same was also dismissed. Thus, the claim petition filed by the defendants 2 to 7 was dismissed. In respect of plaint B schedule property in an extent of Ac.0-05 ½ cents of land in R.S. No.388/1 of Komaripalem village, 8^th defendant trespassed into B schedule property in an extent of Ac.0-05½ cents in R.S. No.388/1 of Komaripalem village after delivery of the property and filed E.A. No.85 of 1984 alleging that he purchased the property under the registered sale deed dated 11.10.1982. The 9^th defendant also trespassed into the another half portion of Ac.0.05 cents of land in R.S. No.388/1 of Komaripalem village and filed E.A. No.87 of 1984 alleging that he purchased the property under the registered sale deed from the 1^st

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defendant. However, both the Execution Applications were dismissed for default and subsequently restoration petitions were also ended in dismissal, but they are still continuing in possession and enjoyment of the property, being purchasers. Thus, the defendants denied title of the plaintiffs in A, B and C schedule property claiming that they purchased the property from the 1^st defendant and others after passing a preliminary decree. Therefore, the claim of the defendants is hit by lispendens and they are not entitled to claim A, B and C schedule property as they are in possession without any lawful entitlement, thereby they are liable to vacate and deliver vacant possession of the schedule property and finally prayed to declare that the plaintiffs are absolute owners of the schedule property and deliver vacant possession of plaint A, B and C schedule property to the plaintiffs

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8. The 1^st defendant resisted the claim setting up a formal defence while admitting entire case of the plaintiffs and contended that the suit is speculative and filed at the instance of some of the relatives of the plaintiffs and 1^st defendant and that the decree in O.S. No.160 of 1980 was obtained by playing fraud and subsequently it was waived and therefore the decree becomes infructuous and prayed for dismissal of the suit with costs.

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9. The 3^rd defendant filed written statement contending that the decree in O.S. No.160 of 1980 is a collusive decree between the plaintiffs and 1^st defendant to defeat and defraud the creditors of the Hindu undivided joint family and the purchasers of plaint A, B and C schedule property under valid registered sale deeds.

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10. No provision was made in the partition decree for discharge of the debts of the family and failure to make any provision for discharge of those debts itself indicates that the suit is collusive and thereby the decree is not binding on the 3^rd defendant. The main contention of the

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3^rd defendant is that himself and his brothers Satyanarayana Reddy, Latchi Reddy purchased an extent of Ac.0-17 cents of land being part of Ac.2-95 cents of land in R.S. No.378/4 of Komaripalem village for Rs.4,250/- from 1^st defendant, under a registered sale deed dated 16.04.1980. Since then they were in possession and enjoyment of the property. Thus, the 3^rd defendant and his brothers became absolute owners and possessing the property, thereby their possession cannot be termed as unlawful. One of the brothers of 3^rd defendant by name Satyanarayana Reddy died intestate in 1986 leaving behind defendants 4 to 7 as his legal heirs and they succeeded the share of Satyanarayana Reddy, continuing in possession and enjoyment of the same. The 3^rd defendant denied delivery of plaint A schedule property especially through process of the Court and that the defendants were not impleaded as parties to the suit in O.S. No.160 of 1980, so also I.A. No.1184 of 1984, filed for passing final decree. Therefore, the decree is not binding on the defendants. Finally, it is contended that plaint A, B and C schedule property ought to have been allotted to the share of the 1^st defendant from whom the plaintiffs purchased plaint A, B and C schedule property under registered sale deeds working out equities while passing final decree. Therefore, the final decree is not legal and valid in respect of plaint A, B and C schedule property. Finally, prayed to dismiss the suit with costs.

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11. Defendants 2, 4, 5 and 6 filed a memo adopting the written statement filed by 3^rd defendant.

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12. 8^th defendant filed separate written statement contending that he purchased an extent of Ac.5-1/8 cents of land in R.S. No.388/1 and 390/1 in Komaripalem village for Rs.3,000/- from 1^st defendant under registered sale deed dated 11.10.1982. Since then, he has been in possession and enjoyment of the property and that he further

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contended that the preliminary decree passed in O.S. No.160 of 1980 and final decree passed in I.A. No.1184 of 1984 are not binding on him and he was not a party to the suit and that the decree is a collusive one and prayed for dismissal of the suit.

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13. 9^th defendant filed written statement almost reiterating the contentions raised by 8^th defendant while admitting that he purchased Ac.0-05-1/8 cents of land in R.S. Nos.388/1 and 390/1 in Komaripalem village, which is part of plaint B schedule property, from 1^st defendant, for Rs.3,000/-, under a registered sale deed dated 11.10.982, and prayed for dismissal of the suit.

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14. 10^th defendant filed written statement contending that he purchased Ac.0-80 cents of land, from the 1^st defendant, under a registered sale deed dated 22.04.1980 for a valuable consideration for the purpose of discharging the joint family debts. Thus, he is a bonafide purchaser for valuable consideration and denied delivery of vacant possession of C schedule property through process of Court by the Court Amin and it is only a paper delivery, thereby the plaintiffs are not entitled to claim any of the reliefs and prayed for dismissal of the suit.

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15. Basing on the above pleadings, the trial Court framed the following issues:

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1) Whether the decree in O.S. No.260 of 1980 was not binding on the defendants?

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2) Whether the decree in O.S. No.160 of 1980 was obtained in collusion between the plaintiffs and the defendants therein to defraud the creditors?

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3) Whether the sale deeds in respect of the plaint A, B and C schedule properties in favour of the defendants are binding on the plaintiffs?

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4) Whether the plaintiffs are entitled to recover possession of the plaint A, B and C schedule properties? 5) Whether the plaintiffs are entitled to past profits and future damages?

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6) Whether the plaintiffs are entitled to injunction?

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7) To what relief?

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16. During course of trial, on behalf of the plaintiffs, PWs.1 to 5 were examined and Exs.A-1 to A-8 were marked, on behalf of the defendants, DWs.1 to 7 were examined and Exs.B-1 to B-23 were marked.

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17. Upon hearing argument of both the counsel and considering oral and documentary evidence available on record, the trial Court passed a decree declaring that the plaintiffs are the absolute owners of plaint A, B and C schedule property and directed the defendants to deliver vacant possession of the schedule property, and also directed the defendants to pay mesne profits at the rate of Rs.2,700/- for the preceding 3 years, from the date of filing the Suit.

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18. Feeling aggrieved by the decree in Suit, the appellants – defendants 2 to 10, preferred this Appeal on various grounds. The main contentions urged in the grounds of appeal are as follows :

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a) The trial Court did not look into the intention of the legislature in incorporating Section 52 of Transfer of Property Act, 1882 (For short, ‘the Act of 1882’) and the transactions during the pendency of the suit are not void, but the trial Court did not consider the law laid down by various High Courts under Section 52 of Transfer of Property Act;

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b) The trial Court did not consider the specific plea of collusion and fraud played in obtaining decree by the plaintiffs against the 1^st defendant;

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c ) The trial Court did not consider the specific objection about the binding nature of the decree on the defendants as they were not impleaded as parties to the suit before obtaining preliminary decree or at least in the final decree, though the plaintiffs were aware about the sale transactions between the 1^st defendant and other defendants;

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d) The trial Court also failed to consider the nature of disposal of Execution Applications filed by the defendants claiming the property.

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And finally it is contended that the property covered by plaint A, B and C schedule property should have been allotted to the share of the defendants working out equities so as to protect the interest of the defendants, but obviously for different reasons, more particularly, due to collusion between plaintiffs and 1^st defendant, the trial Court upheld the decree passed against the defendants, erroneously.

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19. Basing on the above grounds, appellants - defendants 2 to 11, prayed to set-aside the impugned decree and judgment passed by the trial Court.

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20. During pendency of this appeal, the dispute between the appellants 2 to 5 and 11 and respondents 1 to 5 herein insofar as it relates to plaint A schedule property was ended in compromise, as they filed compromise petition in A.S.M.P. No.724 of 2009. This Court vide order dated 25.06.2010 allowed the petition permitting the appellants 2 to 5 and 11 to withdraw A.S. No.1855 of 1994 in respect of plaint A schedule property in O.S. No.23 of 1989 and accordingly the appeal was dismissed as withdrawn, without costs, in respect of the said property.

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21. Thus, the appeal in respect of plaint A schedule property is no more surviving in view of withdrawal due to compromise or otherwise.

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Therefore, main dispute in the present appeal is only in respect of plaint B and C schedule property.

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22. Learned counsel for the appellants mainly contended that the sale transactions in favour of defendants, in respect of plaint B and C schedule property, are not hit by Section 52 of Transfer of Property Act, even otherwise, the transactions are not void but inoperative. However, in the suit for partition, the Court would have worked out equities on plaint B and C schedule property ought to have been allotted to the share of 1^st defendant, from whom the property was purchased under registered sale deed, but without impleading defendants 2 to 11, a collusive decree was obtained so as to defeat the rights of defendants 2 to 11 and on the strength of such decree, declaration of title and other reliefs cannot be granted. However, the trial Court on erroneous appreciation of law, passed the decree in favour of the plaintiffs, respondents 1 to 5 herein. It is further contended that possession of property was never delivered through process of the Court and it is only a paper delivery, which is symbolic delivery of possession, thereby the allegation that the respondents trespassed into plaint B and C schedule property is without any basis and thereby the suit is not maintainable, and prayed to dismiss the suit allowing this Appeal setting aside the impugned decree and judgment.

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23. None represented for the respondents and no argument advanced despite granting sufficient time to the respondents.

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24. Considering the contentions of learned counsel for the appellants, perusing oral and documentary evidence including the impugned decree and judgment, the points that arise for consideration in this appeal are :

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1) Whether the defendants – appellants being the purchasers, during pendency of the suit, are entitled to claim equities for allotment of plaint B and C schedule

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property to the share of 1^st defendant in the suit filed for declaration of title and recovery of possession?

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2) Whether the defendants – appellants became owners of the plaint B and C schedule property by virtue of registered sale deeds marked as Exs.B-16 to B-18? 3) Whether the plaintiffs are entitled to a decree declaring that they are owners of plaint B and C schedule property?

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4) Whether the defendants - appellants are trespassers of the schedule property, continuing in possession without any lawful entitlement? If so, are they liable to vacate and deliver vacant possession of the property? 5) Whether the plaintiffs are entitled to claim future profits? If so, at what rate?

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25. POINT Nos.1 and 2: The main contention of appellants is that they purchased the property from the 1^st defendant under separate registered sale deeds marked as Exs.B-16 to B-18 and since then they were in possession and enjoyment of the property under the originals of Exs.B-16 to B-18. Thus, the purchase is not in dispute, but the question is only whether they became lawful owners, when they purchased the property, during the pendency of the suit before the trial Court. Admittedly, the suit in O.S. No.160 of 1980 was filed in the year 1980 and a preliminary decree was passed on 05.11.1981, which is marked as Ex.A-1 and later filed I.A. No.1184 of 1981 in O.S. No.160 of 1980 to pass final decree for division of property by metes and bounds, but whereas the appellants purchased the property under the originals of Exs.B-16 to B-18 on 11.10.1982 and 22.04.1980 respectively. The suit before the trial Court i.e., Sub-Court, Rajamundry was filed in the year 1979 and later it was transferred to Sub-Court, Ramachandrapuram and renumbered as O.S. No.160 of 1980. The plaint was presented before the Subordinate Judge,

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Rajamundry on 18.07.1979 and the decree was passed on 05.11.1981, whereas the purchase under Ex.B-18 was just one month before passing the preliminary decree and the purchase under Exs.B17 was almost two years subsequent to passing of preliminary decree. Therefore, the appellants herein purchased the property during the pendency of the Suit in O.S. No.160 of 1980, on the file of Subordinate Judge, Ramachandrapuram, and those transactions are hit by lispendens as not maintainable under Section 52 of Transfer of property Act. In a recent judgment in Sunita Jugalkishore Gilda Vs. Ramanlal Udhoji Tanna (Dead), Through L.Rs and others^[1] , wherein the Apex court reiterated the affect of purchase of property during pendency of the suit relying on Mangru Mahto and others Vs. Thakur Math^[2] , and held as follows :

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“……………. But in view of Section 52 of the Transfer of Property Act, if the mortgagor grants such a lease during the pendency of a suit for sale by the mortgagee, the lessee is bound by the result of the litigation. If the property is sold in execution of the decree passed in the suit, the lessee cannot resist a claim for possession by the auction-purchaser. The lessee could apply for being joined as a party to the suit and ask for an opportunity to redeem the property. But if he allows the property to be sold in execution of the mortgage decree and they have now lost the present case, the lessees allowed the suit lands to be sold in execution of the mortgage decree and they have now lost the right of redemption. They cannot resist the claim of the auction purchaser of recovery of possession of the lands.”

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26. The facts in the above decision are totally different. However, the principle is that a person who was inducted in possession during pendency of the suit for mortgage is bound by the decree and therefore he is not entitled to claim any right in the property subsequent to passing of a decree. It is evident from the principle laid down in the above judgment, the principle of lis-pendens is enacted only to put an end to the litigation without dragging the matter for years together.

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27. Similarly, In Ashok Kumar Vs. Govindammal and anothe r^[3] , the Apex Court held as follows :

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“Section 52 of Transfer of Property Act, does not declare a pendente lite transfer as void or illegal but only makes the pendente lite purchaser bound by the decision in the pending litigation. If the title of the pendente lite transferor is recognized only in regard to a part of transferred property, then the transferee's title will be saved only in regard to that extent. Suit for partition filed by the 1^st respondent against the 2^nd respondent was pending on the date of sale by the 2^nd respondent in favour of the appellant. In the final decree onefourth of the suit property being allotted to the 2^nd respondent, suit for declaration of title by appellant was dismissed by the courts below holding that the sale was hit by the doctrine of lis-pendens. Hence, partition suit was not collusive and the sale in favour of appellant did not in any way affect the right of the 1^st respondent.”

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28. Even from the reading of the principle laid down in the above decision, the transfer during pendency of the litigation is only subject to the result of the suit, but not void ab initio.

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29. Undoubtedly, the alienation if any taken place is hit by Section 52 of Transfer of Property Act and they are inoperative. I n Sanjay

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Verma Vs. Manik Roy and others^[4] , the Apex Court held as follows:

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“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 alienations 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 excepted 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 concerning 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

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party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court.”

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30. In view of the principle laid down by the Apex Court in Sanjay Verma (4 supra), 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.

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31. The Punjab and Haryana High Court also relied on Division Bench decision of this Court in Chappidi Subbareddy (died) Vs. Chappidi Narapureddy^[5] , wherein this Court held as follows:

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“Firstly, for the purpose of impleading a transferee pendente lite, the facts and circumstances should be gone into and basing on the necessary facts, the Court can permit such a party to come on record, either under Order 1, Rule 10, CPC or under order 22, Rule 10, CPC as a general principle.

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Secondly, a transferee pendente lite is not entitled to come on record as a matter of right;

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Thirdly, there is no absolute rule that such a transferee pendente lite, with the leave of the Court should, in all cases, be allowed to come on record as a party;

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Fourthly, the impleadment of a transferee pendente lite would depend upon the nature of the suit and appreciation of the material available on record;

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Fifthly, where a transferee pendente lite does not ask for leave and come on record that would obviously be at his peril, and the suit may be improperly conducted by the plaintiff on record;

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Sixthly, merely because such transferee pendente lite does not come on record, the concept of his (transferee pendente lite) not being bound by the judgment does not arise and consequently he would be bound by the result of the litigation, though he remains unrepresented;

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Seventhly, the sale transaction pendente lite is hit by

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the provisions of Section 52 of the Transfer of Property Act; and

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Eighthly, a transferee pendente lite, being an assignee of interest in the property, as envisaged under Order 22, Rule 10, CPC can seek leave of the Court to come on record on his own or at the instance of either party to the suit.”

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32. Taking advantage of the principles laid down by the Apex Court and the Division Bench of this Court, the Punjab and Haryana High Court concluded that the transferee pendente lite can be allowed to come on record. If the principles laid down in the above decisions directly applied to the facts of the present case, the purchaser if any pendente lite is entitled to come on record or the petitioner can be permitted to bring the subsequent purchaser to come on record, so as to obtain an enforceable decree joining the subsequent purchaser to execute the document under Section 19 of Specific Relief Act, 1963.

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33. Similarly, in Smt. Muktakesi Dawn and others Vs. Haripada

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Mazumdar and anothe r^[6] , the Calcutta High Court held as follows:

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“It is true that the doctrine of lis pendens as enunciated in Section 52 of the Transfer of Property Act takes care of all pendente lite transfers; but it may not always be good enough to take fullest care of the plaintiff's interest vis-a-vis such a transfer. Where suit is one for specific performance of sale in respect of the suit property and if the defendant is not restrained from selling the property to a third party and accordingly, a third party purchases the same bona fide for value without any notice of the pending litigation and spends a huge sum of the improvement thereof or for construction thereon, the equity in his favour may intervene to persuade the court to decline, in the exercise of its discretion, the equitable relief of specific performance to the plaintiff at the trial and to award damages only in favour of the plaintiff. It must be noted that Rule 1 of Order 39 of the Code clearly provides for interim injunction restraining the alienation or sale of the suit property and if the doctrine of lis pendens as enacted in Section 52 of the Transfer of Property Act was regarded to have provided all the panacea against pendente lite transfers, the Legislature would not have provided in Rule 1 for interim injunction restraining the transfer of suit property,

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Rule 1 of Order 39, clearly demonstrates that, notwithstanding the Rule of lis pendens in Section 52 of the Transfer of Property Act, there can be occasion for the grant of injunction restraining pendente lite transfers in a fit and proper case.”

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34. In view of the principles laid down in the above judgment the transactions covered under the originals of Exs.B-17 and B-18 are hit by the principles of lis-pendens and they are voidable transactions against the plaintiffs in O.S. No.160 of 1980 on the file of Subordinate Judge, Ramachandrapuram and that the appellants herein are bound by the decree passed against the 1^st defendant from the vendor of the appellants.

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35. When the suit is decreed in favour of the plaintiffs – respondents 1 to 5 herein, granting decree for partition, the property purchased by the defendants – appellants herein, is liable for partition. However, several contentions were raised before the trial Court contending that the transaction is not hit by Section 52 of Transfer of Property Act on the ground that the partition is not a transfer of property. No doubt, partition is not a transfer of property for the reason that each member of the coparcener is the owner by birth and partition is only division of property into parts, according to their share, but here the transactions covered by Exs.B-17 and B-18 are the alienations or transfer of property within the meaning of Section 5 of Transfer of Property Act. Therefore, this contention holds no substance, as purchase of property is a transfer of property within the meaning of Section 5 of the Act. The trial Court, applying the principle laid down by the Apex Court, rightly concluded that the suit transaction is hit by principles of lis-pendens.

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36. Adverting to the examination-in-chief of DW.2, who was 1^st defendant before the trial Court, wherein he specifically denied that he does not know about pendency of the Suit in O.S. No.160 of 1980 by the date of purchase and further admitted that the elders as well as his

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sons informed him that the land that was sold by him will be allotted to his share. If this piece of evidence is taken into consideration, unless he has got knowledge about pendency of the suit, question of allotting the land purchased by him to his share does not arise, in normal course of events.

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37. DW.2 is father of the plaintiffs who pleaded that he does not know about pendency of the Suit; however, the property sold by him will be allotted to his share. In his cross-examination, he admitted that his sons filed Suits against him and issued notice, but denied issuance of notice prior to filing of the suit in O.S. No.160 of 1980 and also denied issue of reply notice. However, admitted that suit pending before Sub-Court, Rajamundry was transferred to Sub-Court, Ramachandrapuram and numbered as O.S. No.160 of 1980 and that the properties are joint family properties. However, the 1^st defendant in O.S. No.160 of 1980, DW-2 herein alone executed a registered sale deed conveying property covered under the originals of Exs.B-17 and B-18. So, it is clear from the material admissions made by DW.2, he is aware about pendency of the Suit by the date of sale of the property under the originals of Exs.B-17 and B-18.

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38. DW.3 is the husband of 9^th defendant and elder brother of 8^th defendant, who testified that defendants 8 and 9 purchased Ac.0-10 cents of land i.e., plaint B schedule property under registered sale deeds dated 11.10.1982, marked as Exs.B-16 and B-17 and since then they were in possession and enjoyment of the property. Therefore, purchase of the property subsequent to passing of final decree, by defendants 8 and 9 is an undisputed fact. He pleaded ignorance about passing of preliminary decree by the date of purchase of plaint schedule property against 1^st defendant; so also, allotment of plaint B schedule property to the share of plaintiffs in final decree passed in I.A. No.1184 of 1981 in O.S. No.160 of 1980. However, at

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the end of Page No.2 of cross-examination, DW.3 admitted that his wife and brother filed E.A. Nos.85 and 87 of 1984 before the Sub Court, Ramachandrapuram and they were dismissed. Filing of Execution Application Nos.85 and 87 of 1984 itself indicates that defendants 8 and 9 are having knowledge about purchase of plaint B schedule property, during pendency of the Suit. If really, they are not aware about pendency of the Suit, the question of their filing Execution Applications before the trial Court does not arise. However, the purchasers, defendants 8 and 9 are the appropriate persons to explain whether they are having knowledge about pendency of the suit, as on the date of purchase under Exs.B-16 and B-17, but they were not examined, obviously for different reasons, to find out the truth by crossexamining them. In the absence of any evidence on record, it is difficult to believe that defendants 8 and 9 are the bona-fide purchasers for valuable consideration, during pendency of the suit. The transaction is invalid against the plaintiffs in the suit though it is binding on the 1^st defendant. The oral evidence of other witnesses is not much relevant to decide the real controversy with regard to application of principle of lis-pendens. Therefore, the evidence of other witnesses is not relevant. Even on overall consideration of entire material available on record, it is evident that the appellants filed Execution Applications on coming to know about Execution Petition filed by the plaintiffs in the suit claiming the property and those applications were dismissed and again filed restoration petitions, which were also ended in dismissal. If really, they are interested to protect their property, they would have impleaded themselves in the final decree as parties to the suit, having knowledge about pendency of the suit, but they kept quiet and occupied the property without any lawful entitlement. Therefore, sale transactions covered under Exs.B-16 to B-18 are directly hit by Section 52 of Transfer of Property Act and they are void against the plaintiffs. Though it is binding on the 1^st defendant, father of the plaintiffs, the appellants would not get any title to the property since they are bound

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by the decree passed, pending the suit in O.S. No.160 of 1980. Even on reappraisal of entire material available on record with reference to evidence and legal position, I find no iota of truth in the contentions of the defendants – appellants that they are bona-fide purchasers for valuable consideration without notice. Even otherwise, it is for the appellants to enter into witness box and plead that they have no knowledge about pendency of the Suit. Obviously for different reasons, Defendants 8 and 9 did not enter into the witness box tendering themselves for cross-examination by the adversaries to elicit the truth. Thus, they failed to discharge their initial burden to prove that they are bona-fide purchasers for valuable consideration. As seen from the entire evidence on record, defendants 8 and 9, who are claiming property under Exs.B-16 and B-17, being purchasers during pendency of the suit, did not tender themselves as witnesses and stayed back to avoid cross-examination by the adversary. When the defendants failed to enter into the witness box, adverse inference has to be drawn that what they pleaded is not true, by applying the principle laid down by

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the Apex Court in Vidhyadhar Vs. Mankikrao and anothe r^[7] . Hence, drawing adverse inference, I hold that what defendants 8 and 9 pleaded is incorrect. On consideration of the entire material available on record, I find that defendants 8 and 9 are not bona-fide purchasers for valuable consideration as the transactions covered under Exs.B-16 and B-17 are not valid against the plaintiffs, though it is binding on the 1^st defendant. When the plaintiffs challenging the alienations claiming right in the property covered under Exs.B-16 to B-18, the documents are inoperative against the plaintiffs and thereby they are not entitled to claim ownership over the property covered under Exs.B-16 to B-18 against the plaintiffs.

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39. One of the contentions raised by learned counsel for the defendants before the trial Court is that when the plaintiffs are aware about sale of the property, during pendency of the suit, they would

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have impleaded the defendants as purchasers of property to the suit, but without impleading them, obtained a final decree and that the property sold by the 1^st defendant should be allotted to his share so as to claim equities and to see that the purchasers would not be deprived of their legal right in the schedule property, being the purchasers for valuable consideration.

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40. Learned counsel for the appellants mainly contended that failure to implead the appellants herein as parties to the final decree petition is not a aground to believe the case set up by the defendants and that the decree was obtained by collusion. No doubt, the appellants were not impleaded though they are purchasers of property. If really, the sale is within the knowledge of the plaintiffs in O.S. No.160 of 1980 failure to implead them may be one of the grounds. However, the purchases are only during pendency of the Suit, purchasers need not be impleaded since the decree whatever passed in the suit is binding on them. If the plaintiffs go on impleading the purchaser’s one after the other, there will be no end to the proceedings. Therefore, the purchasers pen-dente lite need not be impleaded in a pending suit. Hence, it is not a ground to uphold the contentions of the appellants – defendants. Hence, considering the facts and circumstances of the case, I find no ground warranting interference of this Court with regard to legal aspect of validity of sale deeds, marked as Exs.B-16 to B-18 and they are hit by Section 52 of Transfer of Property Act and not binding on the plaintiffs. Accordingly, the point is held against the defendants - appellants and in favour of the plaintiffs – respondents 1 to 5 herein.

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41. POINT No.3: One of the contentions of the learned counsel for the appellants is that the appellants are entitled to equities in the property sold to them i.e., B and C schedule property would be allotted to the share of 1^st defendant in the suit. Undoubtedly, the purchasers

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are entitled to claim equities if the purchase is before institution of the suit, but when the property was purchased during pendency of the suit, they are not entitled to claim any equities for the reason that the persons who are claiming equities have to approach the Court with clean hands and do equity.

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42. In a Full Bench judgment of this Court in Ede China Gurunadham and others Vs. Palakurthi Venkata Rao and others^[8] alienee from an alienee of a specific item of property from a Hindu coparcener is not entitled to equities and the Court observed that the equitable doctrine seems to have been conceded having regard to the incidence of the rights of a coparcener in a Hindu Joint family. So long as the family is united, a member’s share does not attach itself to any particular part of the estate but to the estate as a whole and could be determined only by “taking a general account and making a distribution in accordance with the result”. It is therefore only equitable that everything being equal alienating coparcener’s share should be so made up as to embrace wholly or so far as practicable the lands which were sold by him so that the vendee need not be prejudiced. The principle is not based on any right of a Hindu undivided coparcenary property and it is only based on equities. Therefore, a person who purchased the property during pendency of the Suit cannot be said to be a person who approached the Court with clean hands, thereby not entitled to claim equities.

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43. Even otherwise, assuming for a moment, that the appellants are entitled to claim equities it is for them to implead as parties to the final decree, since passing of number of final decrees is not a bar. Instead of filing execution applications, nothing prevented the appellants to implead themselves as parties to the partition suit, when they purchased the property, so as to claim equities, but having kept quiet filed E.A. Nos.85 and 87 of 1984 claiming the property which were

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ended in dismissal but in the suit for declaration, the appellants claiming to be the bona-fide purchasers for valuable consideration are not entitled to claim any equities for allotment of plaint B and C schedule property for them to the share of the 1^st defendant so as to work out equities. Hence, this plea is not open to the appellants in the present suit at this stage.

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44. In view of my foregoing discussion, I hold that the appellants are not entitled to claim any equities for allotment of plaint B and C schedule property to the share of 1^st defendant to work out equities in a suit for declaration filed by the defendants before passing final decree and delivering possession of plaint B and C schedule property to them. The trial Court rightly rejected this plea and the same does not call for interference of this Court. I find no substance in the contention of learned counsel for the appellants. Hence, the point is held in favour of the plaintiffs – respondents and against the defendants – appellants.

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45. POINT No.4: One of the contentions of the plaintiffs – respondents is that though they filed I.A. No.1184 of 1981 and obtained delivery of vacant possession of the property through process of Court, the appellants denied taking delivery of possession of the property through process of the Court. As seen from the material available on record, the Court Amins were examined as PWs.4 and 5 and marked Exs.A-4 and A-5, delivery receipts in E.P. No.11 of 1984 in O.S. No.160 of 1980. PW.4 is Court Amin, who testified about entrustment of delivery warrants in E.P. No.11 of 1984 on 05.03.1984 and Ex.A-4 is C.C. of delivery warrant entrusted to him till delivery vacant possession of the property. The details of delivery was obtained by way of acknowledgment from the plaintiffs, so also delivery was affected in the presence of Sarpanch of the village. In the cross-examination he admitted that he was directed to deliver vacant

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possession of 5 items situated in the same village. Out of 5 items, 1^st item is a terraced house, 2^nd item is terraced granary and it was vacant at the time of execution of delivery warrant. In the entire crossexamination, except suggesting that the physical possession of the property was not delivered, nothing was elicited. PW.5 is also another Amin, to whom another warrant was entrusted, marked as Ex.A-5 for site of Ac.0-69 cents in S.No.583 and 584/1 which is C schedule property but obstruction was caused by M. Seshayya, third party, from delivering the property and he claimed possession of the property by virtue of the document.

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46. Delivery of B schedule property is evidenced by Ex.B-4 and supported by evidence of PWs.4 and 2, who is the Sarpanch of the village, in whose presence the property was delivered. Therefore, delivery of B schedule property is not in dispute; however, the delivery of C schedule property is in dispute since an objection was raised. Even then, the plaintiffs took delivery of B schedule property alone i.e. Ac.10-3/4 cents purchased by defendants 8 and 9; however, they cannot take possession of the property and continue in possession of the same. Thus, the delivery of possession is proved by examining PWs.4 and 5, Court Amins in the presence of Village Sarpanch the property was delivered and that apart, there is a presumption under Section 114 illustration (e) of the Indian Evidence Act, that the Court shall presume that all the judicial and official acts have been done regularly performed until contrary is proved. This presumption under Section 114 illustration (e) is a rebutable presumption and if the evidence of PW.4 is rebutted by any evidence, to dispel the presumption under Section 114 illustration (e), the Court may insist the plaintiffs to prove the actual delivery of possession of the property. But, here the appellants failed to dispel the legal presumption available under Section 114 (e) of the Act. Hence, basing on Section 114 (e), by drawing a presumption it can safely be concluded that PW.4 delivered

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vacant possession of B schedule property purchased by defendants 8 and 9 under Exs.B-16 and B-17, but later they came into possession as they themselves admitted that they are in possession of the property as on the date of filing the Suit. Defendants 8 and 9 being purchasers, pendente-lite trespassed into the property. They are not entitled to retain possession, they are bound to deliver vacant possession of the schedule property and the plaintiffs can recover possession of the property in view of Section 5 of the Specific Relief Act.

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47. So far as C schedule property is concerned, the property was not delivered by the Court Amin, PW.5 as there was resistance. However, resistance was removed through process of the Court. Even then when the property was allotted to the share of the plaintiffs in the final decree for partition in O.S. No.160 of 1980 they became owners of the property, except taking delivery of possession. Therefore, the purchaser of C schedule property is bound to deliver vacant possession of the property as his possession is unlawful and without any title to the same since the sale in his favour is hit by lis-pendens and void and inoperative against the plaintiffs herein. Hence, the appellants – defendants 8 and 9 are not entitled to claim any absolute right.

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48. The plaintiffs sought for the declaratory relief to declare that they are the owners of plaint B and C schedule property as the same was allotted to the share of plaintiffs. Grant of declaratory relief is purely a discretionary one and merely because it is lawful to do so the Court cannot grant declaratory relief. However, the initial burden is upon the plaintiffs to establish that they are the owners schedule property.

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49. In the instant case, admittedly, the schedule property belongs to the family of plaintiffs and 1^st defendant, who are the coparceners and by birth, they are entitled to get a share in it. However, the 1^st

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defendant squandering the property due to vices and maintaining a mistress at a different place, neglected the defendants. In those circumstances the plaintiffs demanded 1^st defendant for partition of the schedule property, but he did not co-operate for amicable partition, thereupon the plaintiffs filed a suit for partition. Initially, the suit was contested by the 1^st defendant by filing written statement and remained ex parte; thereupon, the trial Court passed a preliminary decree, marked as Ex.A-1 declaring the share of plaintiffs and 1^st defendant herein in the schedule property and later passed a final decree dated 22.11.1983 under the original of Ex.A-2, but whereas the property was purchased under Exs.B-16 to B-18 almost subsequent to filing of a final decree petition under the original of Ex.A-2 filed on 18.09.1982 and passed on 22.11.1983, whereas the defendants - appellants purchased the property under Exs.B-16 to B-18 on 11.101.982 and 22.04.1980 respectively. Thus, Ex.B-18 is during pendency of the original suit and purchases covered by Exs.B-16 and B-17 were during pendency of the final decree petition, but there is no reference about pendency of the suit in any of the documents. However, DW.2 admitted in his evidence that elders told him that the property sold to him will be allotted to his share in the final decree. As such the pendency of the Suit is within the exclusive knowledge of DW.2, whom the appellants examined as witness and vendor of the appellants but failure to inform about pendency of the suit by the 1^st defendant, DW.2 vendor of the appellants itself is not a ground to deny the relief. When the appellants purchased the property, they are supposed to make necessary enquiries about title to the property and pendency of any litigation, but it appears from the record that defendants 8 and 9 did not make any enquiry. Similarly, the other appellants also did not make any enquiry, as per the evidence available on record. Therefore, they cannot be termed as bona-fide purchasers for valuable consideration and apart from that when they

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purchased the property without making any enquiry, they are not entitled to claim any equities.

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50. As seen from Ex.A-2, final decree petition, Advocate Commissioner was appointed and as per the Commissioner’s report B and C schedule property was allotted to the share of the plaintiffs – respondents 1 to 5 and possession of C schedule property was delivered actually through process of the Court, as per the evidence of PW.5, Court Amin, which remained un-rebutted. Therefore, by drawing a presumption under Section 114 illustration (e) of the Indian Evidence Act, I hold that the possession of the property was delivered, but it was occupied by the appellants herein, again subsequent to delivery of vacant possession and continuing in possession. Moreover, C schedule property was not delivered due to resistance by M. Seshayya, 11^th defendant, 10^th appellant herein. Therefore, in view of allotment of the property to the share of the plaintiffs, as per the final decree, they became owners of the property. Therefore, mere sale of the property during pendency of the suit bypassing preliminary decree and during pendency of the final decree is not sufficient to declare the declaratory relief since they are inoperative against the plaintiffs. That apart, the conduct of the defendants is manifest from the material available on record that they filed Claim Petitions, as admitted by both the parties, in Execution Applications filed for delivery of the property which ended in dismissal, and later filed petitions seeking restoration of claim petitions, which were also ended in dismissal. Correspondingly, they did not file any appeal against those claims and allowed to attain finality. At the same time, they did not take any steps to get their title declared by any independent proceedings or by filing objections to implead them in the final decree proceedings. Thus, the defendants did not approach the Court with clean hands and I find the plaintiffs approached the Court with clean hands claiming equitable relief of declaration of title. Hence, the trial Court rightly declared the title and rights of the plaintiffs and ordered recovery of possession of

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the schedule property from the defendants and the finding of the trial Court is free from any illegality or irregularity and does not call for interference of this Court. Hence, I find no illegality to set-aside the findings of the trial Court and I am totally in agreement with the findings recorded by the trial Court, holding this point in favour of the plaintiffs – respondents 1 to 5 and against the defendants – appellants.

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51. POINT No.5: According to my findings on Points 1 to 4, the plaintiffs – respondents 1 to 5 were declared as owners of the property and that the possession of the appellants is unlawful, without any title; thereby, they are liable to deliver vacant possession of schedule property and as such liable to pay profits earned from the schedule property due to their unlawful possession. Therefore, the trial Court rightly granted the decree for past profits and the finding of the trial Court does not call for interference of this Court, as I find no illegality in the finding. Accordingly, the point is held in favour of the plaintiffs – respondents 1 to 5 and against the defendants – appellants. In view of my foregoing discussion and findings on points 1 to 4, the appeal is devoid of merits and it deserves to be dismissed.

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In the result, the appeal suit is dismissed confirming the impugned decree and judgment dated 30.08.1994, passed in Original Suit No.23 of 1989 by the learned Subordinate Judge, Ramachandrapuram, East Godavari District.

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In consequence, Miscellaneous Petitions, if any, pending in this Appeal shall stand dismissed.

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_____________________________ M. SATYANARAYANA MURTHY, J

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Date: 17-04-2014. Dsh

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HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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246

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APPEAL SUIT No. 1855 OF 1994