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 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 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 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 1st plaintiff and her sister Kujur bi, mother of the plaintiffs 2 to 5 had instituted a suit in O.S.No.600 of 1985 on the file of the District Munsif Court, Kallakurichi for declaration and recovery of possession against one Badhusha sherif and others. The plaint was thereafter returned to be represented before the proper Forum. The plaint was presented before the Sub-Court, Viruthachalam and renumbered as O.S.No.203 of 1990. After the bifurcation of the District and formation of the Sub-Court, Kallakurichi the suit was transferred to Sub-Court, Kallakurichi and renumbered as O.S.No.33 of 1996. On 28.09.2001, the suit was decreed in respect of an extent of 38 ½ feet on the west, 39 feet on the East, 40 feet on the north and 53 feet on the south which is the present suit property. On 28.10.2004, the plaintiffs had taken possession through Court and had planted survey stone on four corners and raised a fence with granite stones up to the ground level. Kajur bi died intestate and leaving behind her surviving plaintiffs 2 to 5 who succeeded to her estate including the suit property. The defendant was attempting to trespass into the property and therefore, the plaintiffs had issued a legal notice dated 16.08.2006 putting him on notice about