SUKUMARAN Vs. KATHREENA

JUDGEMENT

(1.) The main issue involved in the case is pertaining to the application of doctrine of "lis pendens" engrafted under Sec. 52 of the Transfer of Property Act and whether it will have any application to a transfer of interest effected during the period of discontinuance of litigation and what would be the legal position when the delay occasioned in that behalf was subsequently condoned.

(2.) Ext.P2 common order in I.A.No.3170/2009 and 3744/2008 is under challenge by petitioner. He purchased an extent of 1 acre 3 cents of property from one Acharu on 10/04/1980. She is the daughter of one Kuriappan, who claims to be the legal heir of one Rappai. He obtained the property as per document No.371/1957. The actual extent comes to 8 Acres 47 cents. As per the plaint schedule description, it is only a registered holding of 5 Acres 55 cents. A preliminary decree was passed pertaining to the said property. It was challenged before the first appellate court as well as this Court by way of a second appeal, in which a decision was rendered on 31/08/1978, by which the suit was dismissed finding that the property is not available for partition. It is after the disposal of the second appeal - S.A.No.278/1974, the property was purchased by the petitioner on 10/04/1980 and it was mutated in his name and improved the property by cultivation and also by constructing a building therein. He had initiated a civil suit - O.S.No.228/2002 for injunction against the alleged attempt of trespass. It is at that time, he came to know about the judgment rendered by the Apex Court, by which the decision rendered by the Division Bench of this Court in the second appeal was set aside. It is submitted that within the time of limitation, nobody has approached the Apex Court challenging the verdict given by the second appellate court. The transfer of title and interest over an extent of 1 acre 3 cents after the disposal of the second appeal according to the petitioner is valid and will not stand vitiated by the application of doctrine of lis pendens as incorporated under Sec. 52 of the Transfer of Property Act. It is inter alia contended that the sale deed executed after the disposal of the second appeal would stand valid and will not stand hit by Sec. 52 of Transfer of Property Act. Hence, the decree passed by the Apex Court reversing the decision of the second appellate court would not bind on the purchaser, who obtained the property during the interregnum after the expiry of the period of limitation. It is submitted that it is after the disposal of second appeal and also after the expiry of the period of limitation available for challenging the same before the Apex Court, the property was purchased by the present petitioner. If it is so, the transfer of right effected over the property during the interregnum after the expiry of the period of limitation would not come under the purview of Sec. 52 of the Transfer of Property Act. It is submitted that the plaintiff had approached the Apex Court with a special leave application along with an application for condonation of long delay. Hence, the decision rendered in the SLP reversing the finding of second appellate court and the decree granted thereof though would stand merged in the judgment of the Apex Court, it will not have any binding force to a person, who is a subsequent purchaser of the property after the expiry of period of limitation and before the initiation of proceedings for the SLP. The fact that the SLP was allowed by setting aside the decision rendered by the Division Bench of this Court (second appellate court) hence may not have any binding force to the petitioner herein, if the property was purchased during the interregnum after the expiry of the period of limitation and before the initiation of SLP proceedings before the Apex Court.

(3.) The sum and substance of doctrine of lis pendens is to avoid multiplicity of proceedings and to give finality and effectiveness to the decision rendered by a competent court and to protect the interest of a litigant from being defeated by subsequent transfer, alienation and encumbrances. The very basis of Sec. 52 of Transfer of Property Act is resting on the principle of "pending lite" and stands for a litigation pending and a deemed pendency during the period of limitation when there is continuity either by way of first appeal or second appeal or by SLP etc. In fact, it has got an actual pendency of proceedings and a deemed pendency based on the principle of limitation available to challenge a verdict which was given either at the court of first instance or at the first appellate court or at the second appellate court as the case may be. When there is continuity of proceedings by way of first or second appeal or even in the case of revision and also merger of the decision rendered by inferior court in the decision of superior court, Sec. 52 of the Transfer of Property Act would stand applicable pertaining to any pendente lite transfer. Necessarily, there is no need to implead the pendente lite transferee to the lite so as to make the verdict binding on them. But the legal position would be different even in the case of merger of the decree of subordinate court in the verdict of the higher or superior court, when there is discontinuance of lite for any period after the expiry of the period of limitation and the transfer of interest during the interregnum would stand not bound by either doctrine of lis pendens or by Sec. 52 of Transfer of Property Act. Necessarily, such transferee during the interregnum should be made as party to further proceedings of the lite, otherwise, the verdict, if any obtained though have the effect of merger will not stand binding on such transferee. In short, the period of limitation given for an appeal or second appeal, when such appeal is preferred within that time will stand deemed to have been initiated within time and will get the sanctity of continuing litigation and pendency for the purpose of Sec. 52 of the Transfer of Property Act. It is settled by the Apex Court in Inderchand Jain v. Motilal [(2009) 14 SCC 663] that an appeal is a continuation of suit and the decision taken by the appellate court relates back unless a contrary intention is shown. Further, a decree passed by the appellate court should be construed to be the decree passed by the court of first instance for all purposes (Ramankutty v. Avara [(1994) 2 SCC 642]). But the said principle cannot be applied so as to save the laches and failure on the part of litigant in maintaining the legal proceedings live and effective especially for the purpose of Sec. 52 of Transfer of Property Act and the principle of lis pendens. When there is a long lapse of time or long interval rather than what is provided by way of limitation to take up an appeal or second appeal or any other relief within the time of limitation, the principle of continuing/pending litigation cannot be applied to any transfer effected during the interregnum after the expiry of the period of limitation. Necessarily, the transferee, who obtained interest during the interregnum should be made as a party to the further proceedings so as to give rise a binding force on them with respect to the interest which were transferred in their favour during the interregnum, that is to say, after the expiry of the period of limitation available to exhaust the remedy. Sec. 52 of the Transfer of Property Act is extracted below for reference: