LALJI SINGH Vs. RAMESHWAR MISRA AND OTHERS

JUDGEMENT

(1.) THIS is plaintiff's appeal. Lalji Singh, the plaintiff, and one Ram Sukal, husband of Smt. Suggawere collaterals. Smt. Sugga died prior to the vesting under the U.P. Zamindari Abolition and Land Reforms Act, 1950, leaving her daughter Smt. Jasoda, defendant No. 6, as her heiR.Dispute arose between Smt. Jasoda on one hand and Lalji Singh on the other Smt. Jasoda was mutated in the revenue papers after contest put in by Lalji Singh. She then filed Original Suit No. 2534 of 1958 in the civil Court for partition of the holding. The suit was contested by Lalji Singh, but decreed by the trial Court on September 4, 1961. Lalji Singh filed an appeal in the district Court against the decree which was dismissed on November 19, 1962. During the pendency of this appeal, Smt. Jasoda executed four deeds of sale between May 28, 1962 to July 4, 1962 in favour of defendants 1 to 5 and 7 with respect to land specified at the foot of the plaint. Second Appeal No. 831 of 1963 was filed by Lalji Singh against the judgment and decree of the lower appellate Court dated 19.11.1962. An application to record a compromise under Order 23, Rule 3, C.P.C. was made in this Court on March 26, 1963 by Lalji Singh. This was opposed by Smt. Jasoda, but the objection was rejected. The compromise was verified by the trial Court on March 25, 1964 under the order of this Court. A sum of Rs. 5,000/ - was paid by Lalji Singh to Smt. Jasoda who made surrender of her rights in the land in favour of Lalji Singh. The second appeal was decided in terms of this compromise on May 21, 1969. Lalji Singh filed the suit giving rise to this appeal in the meantime on June 3, 1965, claiming the relief of cancellation of the four deeds of sale mentioned above on the ground that they were vitiated on the principle of lis pendens. In defence, it was asserted by defendants 1 to 4 and 7 that Smt. Jasoda was competent to execute the sale which she did and that lis pendens is not attracted to the facts of this case.

(2.) THE trial Court decreed the suit on October 31, 1969 being of the view that the transactions of sale were vitiated under Section 52 of the Transfer of Property Act and that there was no collusion between Smt. Jasoda on the one hand and Lalji Singh on the otheR.Sale deeds were cancelled as a result except with respect to certain plots specified in the decree which were not the subject matter of Original Suit No. 2534 of 1958. The judgment and decree of the trial Court were reversed by the lower appellate Court on February 5, 1974 which recorded the finding that Section 52 of the Transfer of Property Act is not attracted. Aggrieved against the dismissal of the suit, the plaintiff preferred this appeal.

(3.) THE broad purpose of Section 52 as pointed out in Gauri Dutt Maharaj v. Sakur Mohammad and others : A.I.R.1948 P.C. 147 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or strength or weakness of the case on one side or the other in bona fide proceedings. In that case a mortgage was effected during the pendency of a suit. The plea raised was that the appellant's claim was not maintainable by reason of Section 52. The right to immovable property was directly and specifically in question in the said suit. The expression "decree or order" used in Section 52 includes, it was held, a decree or order made pursuant to agreed terms of compromise. To apply the test of strength or weakness of the case on one side or the other in bona fide proceedings is "to misconceive the object of the enactment."