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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Devashis Baruah, J.
Bipin Baruah @ Bipin Bezbaruah S/O Late Gobinda Baruah – Petitioner
Versus
Paresh Baruah S/o Late Mukundaram Baruah and Ors. – RespondentS
RSA/116 of 2022
Decided On : 27-09-2022
Code of Civil Procedure, 1908 - Section 100, (4), Order XLI Rule 11 - Transfer of Property Act, 1882 - Section 52 - Ancestral Property - Partition And Permanent Injunction - Whether there arises any substantial question of law which can be formulated in terms with Section 100(4) of Code - Whether courts below were justified in deciding Issue No.(v) against plaintiff without taking into consideration scope and ambit of Section 52 of Transfer of Properties Act, 1882 – Whether questions of law proposed by learned counsel appearing on behalf of appellant are substantial and arises/involved in instant appeal, it would be relevant to take note of brief facts of case - Whether concurrent findings of facts arrived at by court below suffer from perversity on ground that both courts below failed to take into consideration Ext.3 and Ext.7 in proper perspective. Para 14
Finding of the Court :
Effect of Section 52 ibid., for purpose of present case would only be that said sale transactions in favour of appellants shall have no adverse effect on rights of plaintiffs and shall remain subject to final outcome of suit in question - However, High Court, while holding that said transactions were hit by lis pendens, has proceeded to observe further that sale deeds so made in favour of present appellants were illegal - These further observations by High Court cannot be approved for reasons foregoing - Taking into account above quoted paragraphs of said judgment of Supreme Court and observations made by First Appellate Court in paragraph No.21, this Court is of opinion that said substantial question of law so proposed that deed of sale is void as same was executed and registered during pendency of two suits cannot be construed to be substantial question of law involved in instant appeal - This Court is of opinion that observation made by First Appellate Court in paragraph No.21 has been rightly observed by First Appellate Court and calls for no interference - Consequently, two questions of law as proposed by appellant are not substantial question of law involved in instant appeal and consequently sans any substantial question of law arising to be formulated under Section 100(4) of Code.
Result: Appeal dismissed.
JUDGMENT :
Heard Mr. J. Deka, the learned counsel appearing on behalf of the appellant. None appeared on behalf of the respondents.
2. This is an appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the judgment and decree dated 24.01.2022 passed by the learned Additional District Judge, Sivasagar in Title Appeal No.11/2019 whereby the said appeal was dismissed and the judgment and decree dated 29.06.2019 passed by the Civil Judge, Sivasagar in Title Suit No.36/2006 was affirmed.
3. This appeal has been taken up for consideration at the stage of Order XLI Rule 11 to ascertain as to whether there arises any substantial question of law which can be formulated in terms with Section 100(4) of the Code.
4. For the purpose of ascertaining as to whether the questions of law proposed by the learned counsel appearing on behalf of the appellant are substantial and arises/involved in the instant appeal, it would be relevant to take note of the brief facts of the case. For the sake of convenience, the parties herein are referred to in the same status as they stood before the trial court.
5. The appellant herein as plaintiff instituted a suit being Title Suit No.2/2005 against the defendant Nos.1 & 2 along with another brother of the plaintiff before the Court of the Munsiff No.1, Sivasagar for declaration, partition and permanent injunction. It has been alleged in the plaint that the defendant Nos. 1 & 2 along with the other brother illegally got the ancestral property of the plaintiff and defendants, partitioned in P.P. Case No.41/89-90 and tried to construct the private path used by the plaintiff and his other brothers for which the plaintiff also prayed for a temporary injunction against the defendant Nos. 1 & 2 and others in Misc. (J) Case No.3/2005, arising out of the Title Suit No.2/2005. The said Title Suit No.2/2005 was pending and was sub-judice. It has been also mentioned in the plaint that the deceased father of the plaintiff, namely, Gobinda Baruah and the deceased father of the defendant Nos. 1 & 2, namely Mukundaram Baruah were brothers and they were the joint owners and pattadars of PP No.1734 of Sivasagar Town, Mouza-Nagarmahal. Gobinda Baruah had a private path over the said land of PP No.1734 which has been in continuous possession and in continuous use of the plaintiff and his other brothers, i.e., the sons of Late Gobinda Baruah. The defendant Nos.1 & 2 and the other legal heirs of Late Mukundaram Baruah, as alleged in the plaint, illegally partitioned the said land covered by PP No.1734 and the plaintiff challenged the said partition in Title Suit No.2/2005 and prayed for partition of the said land by the Civil Court and issuance of precept to S.D.C. (3), Sivasagar to effect partition as per decree of Title Suit No.2/2005 amongst other prayers.
6. It has been further stated that during the pendency of the Title Suit No.2/2005, the defendant Nos.1 & 2 along with Binoyananda Baruah, their deceased brothers, tried to sell the land covered by the aforesaid PP No.1734 and obtained permission for sale from the Sivasagar Development Authority to the defendant No.3. The plaintiff lodged complaint with the said Development Authority informing it about the pendency of the suit and prayed that no permission should be granted. However, the Development Authority granted permission. The plaintiff, finding no other alternative filed Title Suit No.58/2005 against the defendants, Binoyananda Baruah and Sivasagar Development Authority as well and obtained an ex-parte ad-interim injunction restraining the defendants from executing and registering the sale deed vide order dated 29.11.2005 passed in Misc. (J) Case No.104/2005, arising out of Title Suit No.58/2005 by the Munsiff No.1, Sivasagar. The said notice of injunction was duly served upon the defendants and also upon Binoyananda Baruah, the
Section 52 of the Transfer of Property Act, 1882 that reads as During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established bey....
The court reaffirms that a sale pending litigation is not void but does not bind the party in the pending suit, allowing partial claims based on property allocation.
Point of law: Validity of, and effect of S. 52 – Doctrine of lis pendens is based on ground that it is necessary for administration of justice that decision of a court in a suit should be binding not....
It is trite that once declaration of right, title and interest have been granted in favour of a particular person, person who claims adversarial interest has to show a better title as to why he shoul....
During pendency in any court having authority within limits of India of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in ques....
The doctrine of lis pendens applies to subsequent purchasers; their rights are subordinate to those of the decree holder in a specific performance case.
Subsequent purchasers cannot assert defenses of the original vendor without seeking leave under Order 22 Rule 10 of CPC, especially when the original sale deeds have been canceled.
The court held that a sale deed remains valid despite non-payment of consideration, affirming ownership rests with the purchaser as per registered transaction under the Transfer of Property Act.
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