Transfer of property rights during ongoing litigation are subject to the doctrine of lis pendens, affecting claims of ownership and right to injunction.

JUDGMENT

Heard.

2. This Second Appeal has been preferred against the judgment and decree dated 01.03.2019 passed in A.S. No.19 of 2017 by the learned Principal Subordinate Judge, Dindigul, whereby the judgment and decree dated 23.01.2017 in O.S. No.710 of 2009 passed by the learned Additional District Munsif, Dindigul, was reversed.

3. For convenience, the parties will be referred to by their ranks as in the trial court.

4. At the time of admitting the Second Appeal on 19.07.2019, this Court framed the following substantial questions of law for consideration, which are extracted verbatim below:

I. Whether the 1^st appellate court was correct in allowing the appeal on the wrong notion as though the respondent is a co-owner along with the plaintiff, relying on the boundary recitals mentioned in the sale deed Ex A5, when it is not the case of the respondent that he is the co-owner?

II. Whether the 1^st appellate court is correct in disallowing mandatory injunction when all the constructions except the impugned constructions described in the plaint are put forth during the pendency of the suit as per the Commissioner’s report?

III. Whether the 1^st appellate court is correct in not ordering mandatory injunction when admittedly all the impugned construction are made during the pendency of the suit either in the exclusive property of the Plaintiff or in a Co-owner’s property; and thus committing an error of encouraging illegality being committed?

5. The appellant herein, who was the plaintiff before the Trial Court, instituted O.S. No.710 of 2009 seeking a declaration of title, a decree of permanent injunction, and a decree of mandatory injunction.

6. The suit schedule property measures East–West 47’ and North– South 35’, totalling 1645 sq. ft. The present dispute, however, is confined to a narrow strip of land measuring 47’x 2’ (94 sq. ft.), forming the northern boundary of the plaintiff’s property and the southern boundary of the defendant’s property.

7. According to the plaintiff, under Ex.A5 he purchased the property measuring 47’ x 35’ . His building, however, extends only up to 33’ North–South, leaving a strip of 2’ on the northern side, which forms the lane in question. He contends that this 2’ passage is also part of his purchase under Ex.A5 and that he is entitled to rights over the northern common lane as recited therein.

8. The defendant, on the other hand, claims title under Exhibits.A6 to A8. Originally, the property belonged to one Parvathi Ammal, who settled it in favour of her husband, Muthusamy Naidu, under Ex.A6. The extent of the property so settled measured East–West 100’ and North– South 27’. The successors in title of Muthusamy Naidu sold the property to the defendant’s mother under Ex.A7, describing it as measuring East–West 100’ and North–South 28’ on the western side and 29’ on the eastern side. Thereafter, the defendant’s mother in turn settled the property in favour of the defendant under Ex.A8. Thus the vendors of the defendant’s mother had conveyed an extent larger than what they were lawfully entitled to, a fact which also stood admitted during the cross-examination of D.W.1.

9. The defendant further contended that the plaintiff had no direct access to the disputed strip of land and, therefore, could not assert any right over it.

10. The Trial Court, upon appreciation of the oral and documentary evidence, held that the 2’ strip formed part of the plaintiff’s purchase under Ex.A5, and accordingly decreed the suit in favour of the plaintiff by granting a declaration, a decree of permanent injunction, and a mandatory injunction directing removal of the constructions/ encroachment.

11. On appeal, the First Appellate Court reversed the judgment of the Trial Court. Relying on the recital ‘common lane’ in Ex.A