JUDGMENT :

1. This second appeal preferred by the appellants/plaintiffs was admitted for hearing on 03/09/2020 by formulating the following substantial question of law :-

“Whether both the Courts below were justified in holding that alienation made by defendant No.2 in favour of defendants No.3 and 5 on 14/02/2004 is valid and in accordance with law ?”

[The parties will hereinafter be referred to as per their status given and ranking shown before the trial Court.]

2. Plaintiffs No. 1 to 4 as well as defendant No. 1 are brothers and sister and defendant No. 2 is the son of defendant No. 1. It is the case of the plaintiffs that during the pendency of the partition proceedings under Section 178 of the Chhattisgarh Land Revenue Code, 1959, initiated before the revenue Court with regard to the suit land bearing Khasra No. 728/1 area 0.567 hectare, being their ancestral property, defendant No. 2 sold the said suit land by registered sale deed dated 14/02/2004 (Ex. P/3) in favour of defendants No. 3 to 5 and ultimately, vide final order of partition dated 12/07/2005 (Ex. P/1), the suit land fell in share of the plaintiffs, as such, by virtue of Section 52 of the Transfer of Property Act, 1882, the alienation made by defendant No. 2 in favour of defendants No. 3 to 5 during the pendency of the partition proceeding is voidable and therefore, decree for declaration of title and possession be granted in their favour.

3. Resisting the suit, defendants No. 3 to 5 filed their written statement controverting the allegations made in the plaint and pleaded that plaintiffs are not entitled for decree as claimed.

4. Learned trial Court, upon appreciation of oral and documentary evidence on record, dismissed the suit vide its judgment and decree dated 30/06/2009, holding that plaintiffs are not entitled for the decree for declaration of title and possession, which was also affirmed by learned first appellate Court vide its impugned judgment and decree dated 22/09/2010, in the appeal preferred by the plaintiffs, against which this second appeal has been preferred by the plaintiffs under Section 100 of CPC in which sole substantial question of law has been framed and set out in the opening paragraph of this judgment.

5. Ms. Sharmila Singhai, learned counsel for the appellants/plaintiffs, would submit that both the Courts below have erred in not applying the provisions contained under Section 52 of the Transfer of Property Act and thereby not declaring the alienation of the suit land made by defendant No. 2 in favour of defendants No. 3 to 5 during the pendency of the partition proceeding under Section 178 of Land Revenue Code as null and void and therefore, plaintiffs, being the affected party, are entitled for decree for declaration of title and possession as the suit land ultimately fell in their share vide order dated 12/07/2005 (Ex. P/1) passed by the revenue Court in the partition proceedings.

6. None for respondents/defendants No. 1 and 2, though served.

7. Mr. Deepak Kumar Singh, learned counsel for the respondents/defendants No. 3 to 5, would support the judgment and decree passed by both the Courts below.

8. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and perused the records.

9. It is not in dispute that the suit land was alienated by defendant No.2 in favour of defendants No.3 to 5 vide registered sale deed dated 14/02/2004 (Ex. P/3) and the registration was made on 01/07/2005 whereas the final order of partition was passed by the revenue Court on 12/07/2005 (Ex. P/1), as such, the question for consideration herein would be whether both the Courts below have erred in not applying Section 52 of the Transfer of Property Act and thereby not granting decree in favour of the plaintiffs ?

10. At this stage, it would be appropriate to notice Section 52 of the Transfer of Property Act, 1882, which states as under :-

52. Transfer of property pending suit relating thereto. - During the pendency in any Court