S.A.No.648 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26.10.2022

CORAM

THE HONOURABLE Ms. JUSTICE P.T. ASHA

S.A.No.648 of 2019

Shakila Banu

...Appellant

Vs

1.Kathija Bi

2.Sheik Bash

3.Murthuja

4.Sharmila

5.Reshma

(Respondents 2 to 5 were represented

in the Courts below by their power agent

the 1st respondent/1st plaintiff)

... Respondents

Prayer: Second Appeal is filed under Section 100 of C.P.C against the

Judgement and Decree dated 21.12.2018 passed by the Subordinate Court,

at Kallakurichi in A.S.No.14 of 2014 confirming the judgment and decree

dated 10.09.2015 passed by the III Additional District Munsif Court at

Kallakurichi in O.S.No.139 of 2007.

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S.A.No.648 of 2019

For Appellant : Mr.Sharath Chandran

For Respondents : R1, R4 & R5 - Served - No

Appearance

R2 & R3 Not Ready in Notice.

JUDGMENT

The unsuccessful defendant in the Courts below is the appellant

before this Court. The above second appeal gives rise to an interesting

question of law as to ''Whether lis pendens would apply in respect of a

transaction that has taken place during the pendency of a suit before a Court

that did not have jurisdiction to consider the lis?''

2. The second appeal no doubt has been admitted on the following

substantial questions of law:

''i) In the light of the Division Bench of the Kerala

High Court in Govinda Pillai v. Aiyyappan Krishnan, AIR

1957 Ker 10, whether the courts below have committed a

manifest error in applying the principle of lis pendens to

transactions that took place during the pendency of

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S.A.No.648 of 2019

O.S.No.600 of 1985 which was admittedly returned by the

Court below in 1990 for want of jurisdiction?

ii) Whether the application of the principle of lis

pendens to a proceeding in a court without jurisdiction is

illegal and contrary to the explanation appended to Section

52 of the Transfer of Property Act, 1882?

iii) In the absence of any challenge to the sale deed

in favour of the appellant or her predecessor's in title,

whether the suit, as framed, was maintainable?

iv) Whether the Courts below have committed a

manifest error in assuming, without any legal basis, that

the judgment in O.S.No.33 of 1996 would bind the

appellant and her predecessor's in title even though none

of them were parties to that proceeding?

v) Whether the courts below have patently erred in

granting relief to the respondents overlooking the fact that

the registered instruments executed in favour of the

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S.A.No.648 of 2019

appellant and her predecessor's have not been set aside in

any legal proceeding till date?''

3. The second appeal arises from out of the suit O.S.No.139 of 2007

filed before the III Additional District Munsif, Kallakurichi. It is necessary to

allude to the facts which has culminated in the filing of the second appeal

and the parties in the course of the discussion are referred to in the same

ranking as they were before the Courts below.

4. The reliefs sought for in the plaint translated from the vernacular

are as follows:

a) To declare the plaintiff's title to the suit schedule

property.

b) To recover possession of the property through

Court.

c) To direct the defendant to pay damages from the

date of the suit till the date of handing over the

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S.A.No.648 of 2019

possession.

5. Subject matter of the suit:

Vacant site measuring 107 sq.ft. East-West and 87 ft. North-South in

Natham Survey No.70/1A, syed khulam Street, Thyagadurugam village of

Kallakurichi, bounded on ;

West by : Arumugham Pillai's site;

East by : Syed Khulam Street;

South by : Syed Babu's Vacant site;

North by : Rahim's Vacant site.

6. Plaintiffs case:

The plaintiffs would contend that the 1^st plaintiff and her sister Kujur

bi, mother of the plaintiffs 2 to 5 had instituted a suit in O.S.No.6