R V KRISHNA RAO Vs. ATTILI HYMAVATHI

JUDGEMENT

(1.) THIS appeal is filed by the unsuccessful defendants in O. S. No. 206/82 on the file of I-Additional Subordinate Judge, Visakhapatnam. It is stated that the 2nd appellant is the wife of the 1st appellant and the 1st appellant is no more and the 2nd appellant is the legal representative of the 1st appellant. Respondent is the plaintiff in the said suit. The suit was filed for declaration of title, relief of perpetual injunction and an alternative relief of possession as well. The learned I-Additional Subordinate Judge, visakhapatnam, in the light of the respective pleadings of the parties, having settled the issues, recorded the evidence of P. Ws. 1 and 2 and D. Ws. 1 to 4, marked Ex. A. 1 to Ex. A. 7, Ex. B. 1 to Ex. B. 10, Ex. X. 1 to Ex. X. 5 and after recording reasons, came to the conclusion that the plaintiff is entitled for the reliefs prayed for and accordingly decreed the suit. Aggrieved by the same, the unsuccessful defendants had preferred the present appeal.

(2.) SUBMISSIONS of Sri Ram Mohan, the learned Counsel for appellants:- Sri ram Mohan, the learned Counsel Revision representing the appellants had taken this Court in detail through the oral and documentary evidence available on record and would maintain that the fact that the lis has been pending being not in serious controversy, the sale deed relied upon by the plaintiff is hit by the doctrine of lis pendens since Section 52 of the Transfer of Property Act would be applicable. The Counsel also would maintain that the plaintiff is not examined but the husband of the plaintiff was examined as P. W. 1 and the scribe of Ex. A. 1 was examined as P. W. 2 and that there is yet another sale deed in favour of P. W. 1 also. The learned Counsel also made elaborate submissions relating to the layout plans and how the agreement was initially entered into with the original owner for undivided 1000 Sq. Yds. , and how the sale deed was executed giving the specific plot number in the approved layout and how delivery of possession also was effected in pursuance of the decree and how the findings recorded by the trial Court cannot be sustained. The learned Counsel also would maintain that the meaning of pendency had not been appreciated by the trial court in proper perspective and the doctrine of lis pendens is not confined and restricted to what she had prayed for in the suit which was only tentative in view of the fact that the agreement in her favour was for the undivided 1000 sq. Yds. in Sy. No. 62/2 and further the decree made and the full satisfaction recorded in relation to the said decree may have to be taken into consideration for the purpose of appreciating whether doctrine of lis pendens would be applicable to the facts of the case or not. The learned Counsel while further elaborating his submissions had taken this Court through 'a' series and 'b' series and also 'x' series documents as well. The Counsel also would maintain that the prior suit was for undivided 1000 Sq. Yds. in the total extent of about more than 4 acres in Sy. No. 62/2. Further the learned Counsel also would maintain that she would not have expected the location where her plot number for 1000 Sq. Yds. would come in Sy. No. 62/2 and hence she prayed for plot Nos. 15 and 16 and after the suit was decreed, she was given plot No. 13 in the approved layout in complete satisfaction and discharge of decree in her favour. The counsel also would maintain that by the time she instituted the suit o. S. No. 431/69 on 4-8-1969, the plaintiff did not purchase the property. Further, the learned Counsel would maintain that the plaintiff purchased plot no. 14 after the institution of the suit. As the plaintiff purchased only part of Sy. No. 62/2, plot No. 14 after the suit was instituted, the doctrine of lis pendens would be operative in respect of the sale in favour of the plaintiff. Hence, the learned Counsel would maintain that unless the rights of the 2nd defendant are left out and she got full satisfaction of the decree in her favour, the doctrine of lis pendens would be operative. The learned Counsel laid emphasis on the fact that the Decree was fully satisfied and delivery of plot No. 13 in the sanctioned layout, though it was for a lesser extent. The counsel also would maintain that merely because the trial Court assumed that plot No. 14 purchased by plaintiff is plot No. 13 in the sanctioned layout which in fact D. 2 obtained delivery, the trial Court cannot grant declaration and recovery of possession for plot No. 13 of the sanctioned layout when the sale deed of the plaintiff was plot No. 14 with different boundaries but not for plot no. 13 in the sanctioned layout in possession of D. 2. The learned Counsel also placed reliance on certain decisions to substantiate his submissions.

(3.) SUBMISSIONS of Sri T. S. Anand, the learned Counsel for respondent:- Sri t. S. Anand, the learned Counsel representing respondent, on the contrary, would maintain that no doubt the suit O. S. No. 431/69 was filed on 4-8-69 but the plaint was rejected on 12-8-1969 and Ex. A. 1 is dated 16-8-1969 and thus as on the date of institution of the suit, the date on which the plaint in fact had been registered i. e. , in the month of November, 1969, when the suit in fact was numbered, by that time itself, Ex. A. 1 was executed and in the light of the rejection of the plaint and inasmuch as no suit was pending at the relevant point of time, the doctrine of lis pendens would not be applicable. The learned counsel also explained the stages in the presentation of the plaint and the relevant dates and would further maintain that though the decree was prayed for an undivided extent of 1000 Sq. Yds. , the decree was granted for plot No. 16, but the sale deed was taken for a different plot number and hence it cannot be said that Section 52 of the Transfer of Property Act would be applicable, inasmuch as the condition that right to immovable property to be directly and specifically in issue to make the doctrine of lis pendens applicable, had not been satisfied. The learned Counsel also had taken this Court through the oral and documentary evidence available on record and also would maintain that P. W. 1 - the husband who has knowledge about all the facts had clearly deposed about the relevant facts and hence the mere non-examination of the plaintiff may not be fatal to the case of the plaintiff. Further, the learned Counsel had taken this Court through the findings recorded by the trial Court and would maintain that in the light of the clear findings recorded by the trial Court, there are no grounds in this appeal to interfere with such findings. The learned Counsel also placed reliance on certain decisions to substantiate his submissions.