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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Gauri Godse, J.
Annasaheb & Ors. – Appellants
Versus
Sumatilal Zumbarlal Gujarani & Ors. – Respondents
Civil Application No. 3577 of 2019 in Second Appeal (Stamp) No. 5457 of 2019
Decided On : 21-02-2023
Third Party - Appeal against Judgment and Decree - Order XXII Rule 10, Order XXI Rule 16 and Section 146 of the Code of Civil Procedure, 1908 - Thomson Press (India) Ltd. Vs. Nanak Builders & Investors P. Ltd. & others 2013 AIR (SC) 2389, A.Nawab John & Ors. Vs. V.N. Subramaniyam2012 AIR (SCW) 4248, Raj Kumar Vs. Sardari Lal and others 2004 AIR (SCW) 470, Amit Kumar Shaw Vs. Farid Khatoon 2005 AIR (SC) 2209, Dhurandhar Prasad Singh Vs. Jai Prakash University 2001 AIR (SC) 2552, Pralhad Jaganath Jawale and ors Vs Sitabai Chander Nikam & ors, 2011 (7) All M.R. 255, M/s. Tata Steel Limited, Vs M/s V.V. Minerals Mr.S.Vaikundarajan and others 2008 SCC Online Mad 703, Raghunath Prasad and others Vs. Ramavtar and others Madhya Pradesh High Court in Second Appeal No. 2114 of 2005, Shri Subhash Manikrao Bhosale and others Vs. Shri Prabhakar Vyankatesh Kango and others High Court of Bombay in Writ Petition No.2945 of 2011 - The applicants, claiming title to property through Ratilal, sought leave to file second appeal for challenging the judgment and decree dated 18th July, 2016 passed by learned District Judge-2, Shrirampur in Regular Civil Appeal No. 12 of 2009 arising out of the judgment and decree 30th December, 2008 passed by the learned 2nd Joint Civil Judge, Junior Division, Shrirampur in Regular Civil Suit No. 24 of 2004. The court rejected the application, holding that the applicants failed to show that they have taken all necessary steps to verify the title of Ratilal over the suit property and thus they cannot be said to be bonafide purchasers without notice. Hence, applicants have not made out any case for grant of leave to file second appeal to challenge the decree against their transferor/Ratilal. Moreover, declaration of illegality in respect of the sale deed in their favour has been granted only to the extent of the suit property. Granting leave to the applicants would amount to depriving the successful plaintiff of the fruits of the decree. There is no merit in the application for seeking leave, hence the application is rejected. Since leave to file second appeal is refused, Second Appeal (Stamp) No.5457 of 2019 stands disposed of.
Fact of the Case:
The applicants, claiming title to property through Ratilal, sought leave to file second appeal for challenging the judgment and decree dated 18th July, 2016 passed by learned District Judge-2, Shrirampur in Regular Civil Appeal No. 12 of 2009 arising out of the judgment and decree 30th December, 2008 passed by the learned 2nd Joint Civil Judge, Junior Division, Shrirampur in Regular Civil Suit No. 24 of 2004.
Finding of the Court:
The court rejected the application, holding that the applicants failed to show that they have taken all necessary steps to verify the title of Ratilal over the suit property and thus they cannot be said to be bonafide purchasers without notice. Hence, applicants have not made out any case for grant of leave to file second appeal to challenge the decree against their transferor/Ratilal. Moreover, declaration of illegality in respect of the sale deed in their favour has been granted only to the extent of the suit property. Granting leave to the applicants would amount to depriving the successful plaintiff of the fruits of the decree.
Issues: The main issue was whether the applicants, claiming title to property through Ratilal, should be granted leave to file second appeal for challenging the judgment and decree dated 18th July, 2016 passed by learned District Judge-2, Shrirampur in Regular Civil Appeal No. 12 of 2009 arising out of the judgment and decree 30th December, 2008 passed by the learned 2nd Joint Civil Judge, Junior Division, Shrirampur in Regular Civil Suit No. 24 of 2004.
Ratio Decidendi: The court held that the applicants failed to show that they have taken all necessary steps to verify the title of Ratilal over the suit property and thus they cannot be said to be bonafide purchasers without notice. Hence, applicants have not made out any case for grant of leave to file second appeal to challenge the decree against their transferor/Ratilal. Moreover, declaration of illegality in respect of the sale deed in their favour has been granted only to the extent of the suit property. Granting leave to the applicants would amount to depriving the successful plaintiff of the fruits of the decree.
Final Decision: The court rejected the application for seeking leave to file second appeal, holding that there is no merit in the application. Since leave to file second appeal is refused, Second Appeal (Stamp) No.5457 of 2019 stands disposed of.
JUDGMENT
Gauri Godse, J. - This civil application is filed by a third party seeking leave to prefer an appeal for challenging the judgment and decree dated 18th July, 2016 passed by the learned District Judge-2, Shrirampur in Regular Civil Appeal No.12 of 2009.
BASIC FACTS:
2. By the judgment and decree passed in Regular Civil Appeal No.12 of 2009, the first appeal preferred by original plaintiff was partly allowed and the judgment and decree dated 30th December, 2008 passed by 2nd Joint Civil Judge, Junior Division, Shrirampur in Regular Civil Suit No.24 of 2004 was set aside and suit was partly decreed. Regular Civil Suit No.24 of 2004 was filed by Respondent No. 1/ Sumatilal Zumbarlal Gujarani ('Sumatilal') for declaration of his title and possession over the suit property being gut no. 129, admeasuring about 2 Hectares out of total area of 3 Hectares 62 R, on the basis of a registered sale deed dated 21st October 1991 executed by the original owner Ajitkumar Mirikar ('Ajitkumar'). In the said suit a prayer was made for challenging a subsequent sale deed dated 15th February 1999 executed by respondent nos. 2 to 4 (heirs and legal representatives of Ajitkumar) in favour of respondent no. 5/Ratilal Kothari (Ratilal) in respect of gut no. 129, including the suit property. The said suit was dismissed. Hence, Sumatilal had preferred the said appeal. The first appellate court by the aforesaid judgment, partly allowed the appeal and decreed the suit in favour of Sumatilal, thereby granting relief of cancellation of the sale deed 15th February 1999 to the extent of the suit property.
3. The applicants are claiming title to property being land Gat No.129 admeasuring 3 hectares 48 R (including the suit property) through Ratilal. It is the contention of the applicants that by the aforesaid decree passed by the first appellate court, the sale deed in favour of Ratilal has been set aside. Thus, the case of the applicants is that since by the decree passed in the said appeal, the sale deed in favour of Ratilal is set aside, the title of the present applicants pursuant to the sale deed executed by Ratilal in their favour is directly affected. It is further submitted that Ratilal has not taken any steps to challenge the said decree. Hence, it has become necessary for the applicants to challenge the decree passed by the District Court against Ratilal, for the purpose of getting clear and marketable title to the property purchased by the applicants from Ratilal. It is further submitted that in view of the sale deed executed in favour of the applicants by Ratilal, the applicants have stepped into the shoes of Ratilal and are thus, entitled to challenge the decree passed by the District Court by way of filing a Second Appeal in this Court.
4. The applicants are not parties to the proceedings. Hence, they have filed the present application for seeking leave to file second appeal for challenging the judgment and decree dated 18th July, 2016 passed by learned District Judge-2, Shrirampur in Regular Civil Appeal No. 12 of 2009 arising out of the judgment and decree 30th December, 2008 passed by the learned 2nd Joint Civil Judge, Junior Division, Shrirampur in Regular Civil Suit No. 24 of 2004.
CONTENTIONS OF THE APPLICANTS:
5. The applicants have contended that Ajitkumar was the original owner of the property purchased by them. Ajitkumar had sold the suit property to Sumatilal by registered sale deed dated 21st October, 1991. However, Sumatilal had not applied for getting his name entered in the revenue record. After the demise of Ajitkumar, his heirs and legal representatives sold land gat no. 129 admeasuring 3 Hectares 62 R in favour of Ratilal by registered sale deed 5th February 1999. The applicants have contended that after taking search of the property and after being satisfied with the title of Ratilal, as appearing in the revenue record, the applicants purchased the said land to the extent of 3 Hectares and 48 R plus 14 R of potkharaba by two sep
The doctrine of lis pendens applies to subsequent purchasers; their rights are subordinate to those of the decree holder in a specific performance case.
(1) Lis Pendens – Section 52 of T.P. Act has no application where transfer in favour of subsequent purchaser is not after filing of suit but before filing of suit for specific performance.(2) Resista....
A pendente lite purchaser can be added as a party to ongoing litigation to protect substantial interests, and such applications should typically be granted without prejudice.
A pendente lite purchaser cannot assert independent title in execution proceedings, as the doctrine of lis pendens prevails over claims of bona fide purchasers under the Specific Relief Act.
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