IMPORTANT POINT
When sale void, not necessary for party to seek declaration as transaction is non est, If party has absolute right in such property, can seek only relief of declaration of title and other ancillary reliefs.

A.S. Pachhapure, J.—The appellants have challenged the judgment and decree in R.A. No. 123 of 2009, allowing the appeal of deceased 1st respondent by setting aside the dismissal of the suit in O.S. No. 85 of 1989 for the relief of declaration and possession and granting a decree in favour of the 1st respondent/1(a).

2. The chronology of the events leading to the suit from which the second appeal arises are under:

One N.K. Giriraja Shetty, deceased 1st respondent is the plaintiff in the suit instituted seeking the relief of declaration of his title to the suit properties and for possession. The schedule annexed to the plaint reveals that Sy. No. 11 measuring 5 acres 39 guntas and Sy. No. 68/1, measuring 18 guntas both situated at Kenchanahalli Village, Nelamangala Taluk, Bangalore, were owned by Siddagirigowda, 1st defendant in the Trial Court. The 2nd respondent herein is the third wife i.e., 4th defendant and Thopamma, 2nd defendant is the first wife of Siddagirigowda and in her lifetime, Thopamma instituted a suit for maintenance against her husband, in O.S. No. 245 of 1968. Siddagirigowda owned as many as 13 properties inclusive of the suit properties herein and his wife Thopamma in the suit for maintenance had also prayed for creating a charge of her right of maintenance on all those properties. Thereby, inclusive of the suit properties and other properties of Siddagirigowda were the subject-matter of the suit in O.S. No. 245 of 1968.

While the aforesaid suit was pending, Siddagirigowda sold the suit properties to N.K. Giriraja Shetty, the plaintiff in the present suit. The sale deed was for a consideration of Rs. 10,000-00 and was executed and registered on 9-11-1974. The suit in O.S. No. 245 of 1968 for maintenance and creation of charge was decreed on 24-6-1976. The copy of the decree is at Ex. P. 14. She was granted maintenance of Rs. 100.00 p.m. from the date of the suit till the death of Siddagirigowda and further a charge of maintenance was created on all the properties inclusive of the suit lands.

As the amount of maintenance under the decree in O.S. No. 245 of 1968 was not paid, Thopamma filed Execution Case No. 96 of 1976. In the said execution case, the suit properties were put to auction on 5-10-1977. N.K. Giriraja Shetty filed an application under Section 47 read with Order 21, Rule 90 of Civil Procedure Code, 1908 in the said execution case on 5-11-1977. On 5-1-1978, Siddagirigowda, the husband of Thopamma executed a settlement deed in favour of his wife under Ex. P. 4. Siddagirigowda had also filed an application under Order 21, Rule 90 of CPC on 16-11-1977 and the said application came to be withdrawn by him on 31-3-1978. On 31-3-1978, the application of N.K. Giriraja Shetty filed under Section 47 read with Order 21, Rule 90 of CPC came to be dismissed for default and on the said day, the sale was confirmed.

In the aforesaid circumstances, N.K. Giriraja Shetty instituted the present suit on 19-4-1978 and initially the suit was numbered as O.S. No. 109 of 1978, seeking the relief of declaration and possession and this suit came to be re-numbered as O.S. No. 85 of 1989. Meanwhile, the sale certificate in pursuance of the auction sale was granted to Thopamma on 1-1-1979 as she was the successful bidder in the auction with due permission of the Court. After she was granted the sale certificate aforesaid, the sale was confirmed on 1-1-1979 and a warrant for delivery of possession was issued by the Court on 29-1-1979.

During the pendency of the suit in O.S. No. 85 of 1989, Thopamma sold the suit properties in favour of Siddagangaiah, the 3rd defendant and now in view of his death, he is represented by his wife and children i.e., the appellants herein.

The Trial Court framed the issues and after recording the evidence, heard both the Counsel and dismissed the suit holding that the sale of the suit properties by Siddagirigowda in favour of N.K. Giriraja Shetty was hit by doctrine of lis pendens and tha