K.JANSI Vs. SUB REGISTRAR(PERAMBAKKAM)

JUDGEMENT

(1.) The plaintiffs in this second appeal have impugned the Judgment and decree dated 26.09.2007 made in A.S.No.75 of 2004 on the file of the Subordinate Judge, Thiruvallur, confirming the Judgment and Decree dated 22.12.2003 made in O.S.No.394 of 1995 on the file of the District Munsif Court, Thiruvallur.

(2.) The suit has been laid by the deceased first plaintiff for declaration and permanent injunction. Pending suit, the first plaintiff died and his legal heirs namely, the plaintiffs 2 to 6 were brought on record. The plaintiffs claim title over the suit property based upon the Sale Deed dated 28.12.1990 executed by one Gajendran. The certified copy of the above said Sale Deed has been marked as Ex.A2. Further, according to the plaintiffs, Gajendran purchased the suit property from Ekambaram, the second defendant under the Sale Deed dated 27.05.1988. The certified copy of the above said Sale Deed has been marked as Ex.A7. Further, according to the plaintiffs, in respect of the above said sale transaction, a rectification deed was also executed by Ekambaram in favour of Gajendran dated 20.06.1988. The certified copy of the above said rectification deed has been marked as Ex.A1. Thus claiming title to the suit property, it is contended by the plaintiffs that on 23.08.1995 to their shock learnt that the first defendant is attempting to get a sale deed registered through the second defendant with reference to the suit property, pursuant to the decree passed in O.S.No.399 of 1988 and according to the plaintiffs the decree passed in O.S.No.399 of 1988 has been fraudulently obtained in collusion between the defendants 1 and 2 and therefore, the said decree is not binding on the plaintiffs and therefore according to the plaintiffs they have been necessitated to lay the suit for appropriate reliefs. The plaintiffs have sought the relief of declaration that they have title to the suit property and the relief of permanent injunction has been sought restraining the defendants 1 and 2 from interfering with the plaintiffs possession in respect of the suit property and also from the execution of the decree passed in O.S.No.399 of 1988. As per Ex.B1, it could be seen that the decree has been passed in O.S.No.399 of 1988 on 06.09.1988. The above said suit has been presented on 15.06.1988, O.S.No.399 of 1988 has been laid by the first defendant Sivaraj against the second defendant Ekambaram and N.Rajendaran, S/o.Nandhan, claiming the relief of specific performance for a direction to the second defendant to execute the sale deed in favour of the first defendant in respect of the suit property. Admittedly, the suit ended in a decree in favour of the first defendant on 06.09.1988. The first defendant, who is mainly contesting the present suit has contended that in view of the suit filed in O.S.No.399 of 1988 and the decree passed in the suit on 06.09.1988, the sale obtained by the first plaintiff from Gajendran, S/o.Nandan on 28.12.1990 is hit by lis pendens.

(3.) Further, it is the specific case of the first defendant that in O.S.No.399 of 1988 I.A.No.906 of 1988 has been filed on 15.06.1988 and in that Interlocutory Application, the first defendant had obtained the order of interim injunction and the same had been made absolute. As regards the above case of the first defendant that he had been granted the relief of interim injunction in I.A.No.906 of 1988 in O.S.No.399 of 1988, the same is not controverted. Thus according to the first defendant, the sale transaction made pending O.S.No.399 of 1988 till the culmination of the execution proceedings therein is hit by lis pendens as provided under Section 52 of the Transfer of Property Act and therefore, it is contended that the plaintiffs are not entitled to seek and obtain the reliefs sought for in the plaint. Further according to the first defendant as against the decree passed in O.S.No.399 of 1988, no appeal has been preferred by any one and the plaintiffs are fully aware of the proceedings in O.S.No.399 of 1988 and also the execution proceedings levelled therein and therefore the plaintiffs should be non suited. The Courts below have mainly rejected the plaintiffs case on the footing that the plaintiffs purchase of the suit property dated 28.12.1990 is hit by lis pendens.