KANWAL MALHOTRA Vs. MEGHNA KULKARNI

JUDGEMENT

(1.) The petitioner is aggrieved by an order dated 21st September 2007 whereby the learned Civil Judge allowed an application under Section 151 CPC made by Respondents No. 1 and 2, and dismissed the suit.

(2.) Brief facts relevant for the purpose of deciding this petition are that the petitioners in this case filed a suit for declaration of ownership and consequential reliefs of mandator, and permanent injunction on the basis of an agreement to sell, GPA, Will etc. qua premises No. A-20, Gulmohar Park, New Delhi. The agreement to sell, GPA, Will etc were alleged to have been executed by the defendant No. 3 (Mr. K.S. Kulkarni). Another suit was filed by the defendants No. 1 and 2, before the court below, in 1989 being Suit No. 2718 of 1989 (current number 154 of 2006) regarding the same property for recovery of possession and mesne profits and damages against petitioner No. 1 herein and defendant No. 3 Mr. K.S. Kulkarni. In that suit, the issue involved was whether Late Shri D.G. Kulkarni had executed a GPA and agreement to sell dated 10.6.1980 in favour of K.S. Kulkarni and whether D.G. Kulkarni had executed a special power of attorney and a Will dated 1.2.1984 in favour of Mr. K.S. Kulkarni and its effect. The Suit bearing number 2781 of 1989 was decided by the Court of learned Civil Judge on 20th September 2006 and it was held that the claim of defendant No. 3 of having become owner of the property by virtue of documents executed by Mr. D.G. Kulkarni was a baseless claim and no title in the property got transferred to him. After decision of this suit, defendants No. 1 and 2 before the court below, who were plaintiffs in the suit bearing number 2781 of 1989 [154 of 2006] made this application under Section 151 of CPC that the principle of res judicata would be attracted and the present suit would be barred by the principle of res judicata and was liable to be dismissed.

(3.) There is no denial of the fact that the plaintiffs herein have claimed their title through defendant No. 3 Mr. K.S. Kulkarni on the basis of documents like agreement to sell, Will and power of attorney etc. If K.S. Kulkarni had been the true and real owner of the property then only he could have transferred the property to the plaintiffs. If K.S. Kulkarni had no title over the property, he could not have transferred anything to the plaintiff. The title of Mr. K.S. Kulkarni was itself under cloud. Mr. K.S. Kulkarni was the tenant in the property and when the suit for recovery of possession against him in respect of this property was filed, in defence he had set up certain documents and set up a claim over the property. The Court below after a prolonged trial from 1989 to 2006 i.e. 16 years held that Mr. K.S. Kulkarni had no title over the property. The present petitioners claim to have purchased the property from Mr. K.S. Kulkarni during pendency of the suit. It is obvious that the petitioners were also hit by Section 52 of the Transfer of Properties Act and they were bound by the decree of the Court where lis qua the property was pending. Section 52 of the Transfer of Properties Act makes it abundantly clear that if a person takes a risk to purchase a property which is the subject matter of a suit during pendency of the suit, he is bound by the outcome of the suit even if he has not been made as a party to the suit. In Sunil Gupta v. Kiran Girhotra and others, (2007) 8 SCC 506 : 2007 (99) DRJ 53[SC], the Supreme Court held that if a property is purchased during pendency of the suit/probate petition, the transferor would be deemed to have noticed all such proceedings and by purchasing the property, takes a calculated risk and he would be bound by the judgment of the Court in respect of the property. The Supreme Court went to the extent of saying that it was not even necessary to make him a party to the pending suit.