Transfer pendente lite from judgment-debtor not protected; claim under O.21 R.97 CPC barred by R.102; no equity without evidence.

J U D G M E N T

This appeal arises out of concurrent findings in claim petition under Section 47 and Section 151 read with Order XXI Rule 97 of the Code of Civil Procedure.

2. The brief facts necessary for the disposal of the appeal are as follows:-

The appellants, claims to have purchased the the petition schedule property from one of the judgment debtors in a suit for partition. The suit was initially dismissed on 28.08.1978 and the appeal was also dismissed. The challenge taken before this Court as S.A No.791/1980, which ended in a remand of the suit. Consequent to the remand on 05.08.1985, the suit was decreed. In the meantime, on 16.09.1983, the subject property was assigned in favour of the appellants by the 9^th respondent for a sale consideration of Rs.49,000/- and by the 10^th respondent for Rs.9,450/- by virtue of two documents. Thereafter, it is stated the appellants by spending Rs.3,00,000/-, constructed a multi storied building. Later, the plaintiffs applied for a final decree and on 15.11.2008, the final decree was passed. On 02.11.2012, when delivery was attempted, which was resisted on the ground, they have title over the property, and that only at the time of the delivery, the appellants came to know about the passing of the preliminary decree and the final decree. On enquiry, it was found that the present property was allotted to the respondents 13 to 15 in the claim petition as plot A in Ext.C2 plan. Immediately, the appellants filed an application under Order 21 Rule 97 of the Code of Civil Procedure. On behalf of the claimants, Exts.A1 to A8 documents were produced and PW1 and PW2 were examined. On behalf of the respondents no evidence was adduced. The execution court on appreciation of the oral and documentary evidence came to the conclusion that the appellants are not bona fide purchasers, inasmuch as, the property was purchased during the pendency of the second appeal before this Court and therefore hit by Section 52 of the Transfer of the Property Act, 1882. The claim for equity was also not allowed and accordingly the claim petition was dismissed. Aggrieved, the appellants preferred A.S No.186/2015, which was also dismissed by the First Appellate Court on 10.07.2018 and hence the present appeal.

3. On 31.03.2021, this Court admitted the appeal and framed the following substantial questions of law:-

(1) Is not a lis pendense subsequent purchaser entitled to retain the benefit of transfer since he has paid full value for which he purchased the property and paid it in good faith without notice of any proceedings or suit or a contract?

(2) Whether the appellants purchased property from the 5^th defendant, who is admittedly one of the sharers of the co-ownership property, if so is it not the appellants entitled to get protection over the area purchased by them to the extent of share belonging to the 5^th defendant in the co-ownership property?

(3) Even if the land belongs to a third party, does not the super structure therein belongs to the person who constructed the structure applying the principles quicquid inaedificatur solo, solocedit, which is permissible in India?

4. Heard Shri.Jeswin Varghese, the learned counsel appearing for the appellants and Smt.Sandhya Veni, the learned counsel appearing for respondents 12 to 14, who are the legal heirs of the original defendants.

5. Shri.Jeswin Varghese, the learned counsel appearing for the appellants contended that the sale conducted by Jeevan Das to his daughters and subsequent assignment in favour of the appellants are certainly bona fide transactions. At any rate, the appellants were