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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI, J.
S. Rajavelu
Versus
M.P. Chandrasekaran & Another
Civil Miscellaneous Appeal No. 113 of 2013 & MP Nos. 1,3 & 4 of 2013
Decided on: 26-02-2014
(b). Transfer of title - Principle of Lis pendens – the justifiability of the execution petition was questioned- It was held that the validity of sale deed in compliance with the decree depends on the true and original title of the property- any kind of deal in relation to the property which occurred before the initiation of the suit would not attract the principal of lis pendens- it is only when the suit is already instituted that lis pendens would apply also depending on the outcome of the suit- a decree to sell the property to the holder of the agreement cannot be imposed on the seller if it was pronounced after the transfer of title of property by the seller but nevertheless it can be directed towards the transferee of the property directing him to be a party in the execution of the said sale- the transferee of the property is a necessary party to suit be it prior to lis or during lis- Plea of ignorance on the part of Respondent No.1 regarding the prior transfer of the impugned property cannot be held valid.
1. Civil Miscellaneous Appeal filed against the judgment and decree dated 17.12.2012 made in R.E.A. No.7 of 2011 in R.E.P No.104 of 2010 in O.S.No.23 of 2010 on the file of Principal District Court, Namakkal.
2. The appellant is a third party, who has filed an application under Order Rule 21 Rule 97 and 99 r/w 151 of CPC making a claim over the suit property, which is the subject matter of an execution petition filed by the first respondent for delivery of possession.
3. The brief facts of the case are as follows:
A property to an extent of 0.37 1/3 cents comprised in old S.F.43/1, New T.S.No.92/2C and 92/2D, Kumarapalayam Village, Namakkal District belong to the Appellant. On 21.3.2003, he executed a registered settlement deed in favour of his mother, Palaniammal. A portion of the property viz., 9000 sq.ft was settled. On 6.9.2007, the Appellant and his mother Palaniammal, jointly executed a sale deed in favour of the second respondent, for a sum of Rs.4,50,000/-. An extent of 0.37 1/3 cents was sold. This comprises in TS No.92/2B, 2C and 2D. A Rectification deed was executed on 12.6.2009 deleting TS No.92/2B as it was irrelevant.
4. According to the Appellant, the Second respondent was not able to sell or develop the property and therefore, requested the appellant to repurchase the property. Therefore, on 14.7.2009, he repurchased the property from the second respondent under a registered sale deed. The sale amount was Rs.4,75,000/-, Rs.25,000/- over and above of the earlier sale consideration. This sale is disputed by the respondents.
5. According to the respondents, on 10.6.2009, the second respondent entered into a sale agreement with the first respondent in respect of 33 cents out of 0.37 1/3 cents in the same survey number.
6. A registered usufructuory mortgage was also created by the second respondent in favour of one Gnana Manikandan on 8.9.2009 for a sum of Rs.20,00,000/-being the mortgage amount for the entire extent.
7. Dispute arose between the appellant and the second respondent regarding the ownership of the property. The appellant filed a suit in OS No.286 of 2009 before the District Munsif Court, Tiruchengode against the second respondent and the said Gnana Manikandan. The suit was filed on 16.11.2009. The suit was filed to declare the usurfructuory mortgage as void and not binding and for consequential permanent injunction. On 1.12.2009, an interim injunction was granted.
8. In the mean time, pursuant to the sale agreement dated 10.6.2009, a suit in OS.No.23 of 2010 was filed on the file of District Court, Namakkal by the first respondent against the second respondent for specific performance of the contract. The suit was filed on 12.2.2010. An ex-parte decree was passed on 28.4.2010. The first respondent filed execution proceedings in E.P.No.58 of 2010 on 16.7.2010. On 16.9.2010, the interim injunction obtained by the appellant in O.S.No.286/2009 was made absolute.
9. On 3.12.2010, the first respondent obtained a sale executed by the Principal District Judge, Namakkal in EP No.58 of 2010. Subsequently, EP No.104 of 2010 was filed by the first respondent for delivery of possession. The appellant, having come to know about such proceedings, has filed EA No.7 of 2011 under Order 21 Rule 97 CPC objecting the delivery and also to set aside an order recording possession. The said EA No.7 of 2011 was dismissed and the parties are before this court on appeal.
10. The main contention of the appellant is that he has repurchased the property by a sale deed dated 14.7.2009 and therefore, the second respondent has no right or title either to mortgage the property to a third party or to enter into a sale agreement with the first respondent and the proceedings initiated by the first respondent was collusive.
11. On the other hand, the stand taken by the second respondent is that what was intended to be conveyed under the sale deed dated 14.7.2009 was only an extent of 4 1/3 cents and not 37 1/3 cents. According to the respo
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