MARATH VEETTIL RAGHAVAN NAIR Vs. NEDIYADATH BHAGYALAKSHMI AMMA

JUDGEMENT

(1.) This appeal at the instance of the second defendant in the suit arises from a suit for declaration that a compromise decree entered into between defendants 1 to 3 on the one hand and defendants 4 to 6 on the other, in O. S.481 of 1956 of the Munsiff's Court of Alathur is not valid and binding on the plaintiff-The consequential relief prayed for in the suit is one of setting aside the order passed in execution of that compromise decree ok E. A. 605 of 1960, directing delivery of possession of the plaint property from the plaintiff after removing the obstruction by the plaintiff to the delivery. It is the plaintiff's case that pending the disposal of the suit O. S.481 of 1956 defendants 5 and 6 who were in possession of the property at that time as tenants of the 4th defendant, the jenmi, put the plaintiff (I am referring in this judgment to the parties with reference to their position in this suit unless otherwise indicated) in possession in part performance of an agreement of sale of the property to the plaintiff and that behind her back defendants 4 to 6 on the one band and defendants 1 to 3 on the other who were the plaintiffs in that suit compromised the suit authorising the plaintiffs in that suit to take delivery of the property through Court. Even before the compromise was recorded by court, the plaintiff herein appeared in the suit and objected to the compromise. But, naturally, as a stranger to that suit, her objection was not countenanced. The compromise was recorded and the suit was decreed in terms thereof. Plaintiff would contend that the compromise was entered into fraudulently and conclusively to defeat the interests of the plaintiff, and defendants 5 and 6 having parted with their possession under an agreement of sale were no longer competent to enter into a compromise whereby they purported to convey possession to the 4th defendant by way of surrender of the leasehold. It is the plaintiff's case that actually no such possession was conveyed. The plea of defendants 1 to 3 is that the compromise decree was not brought about by any fraud, that the plaintiff was never in possession of the property and therefore plaintiff could not have successfully resisted delivery in execution of the compromise decree. The 4th defendant who was supported in his defence by defendants 5 and 6 contended that defendants 5 and 6 had surrendered possession of the property to him at the time of the compromise and subsequently the property was leased to defendants 1 to 3 and 8. It is contended that the plaintiff having taken possession, if at all, during the pendency of the earlier suit, the rights of the plaintiff were subject to the result of that suit and therefore her claim to possession will be hit by lis pendens. Of course, if that be the case, plaintiff cannot contend to be in independent possession of the suit property on the date of delivery, and therefore, her interest would not be sufficient to enable her to obstruct the delivery of property effected in pursuance of the compromise decree. In that event the suit must fail. Therefore one of the questions which naturally arose for decision in the suit was whether the transaction in favour of the plaintiff was hit by lis pendens and it is one of the main questions that I have to decide here.

(2.) The Trial Court held that plaintiff had failed to prove her possession of the property pursuant to the agreement of sale and further held that the agreement was hit by the provisions of S.52 of the Transfer of Property Act, so that the plaintiff did not derive any right, title or interest justifying her obstruction in execution of the decree in O. S.481 of 1956. The plaintiff challenged the decree before the appellate court. The appellate court came to a conclusion different from that reached by the Trial Court. It found that plaintiff obtained possession pursuant to the agreement of sale and was in possession thereof on the date of delivery. It further found that though the agreement of sale was pending the suit O. S.481 of 1956, it would not be hit by the doctrine of lis pendens.

(3.) Before I consider the main contention raised here, namely whether the plaintiff's possession under the agreement of sale is hit by the rule of lis pendens, I have to consider whether plaintiff did actually get possession and was in possession on the date of delivery. As a prelude it is necessary to refer to certain other circumstances to understand the situation in which the compromise was entered into in O. S. No. 481 of 1956.