DHARAMSINGH MANRAKHAN SINGH Vs. JALIMA HARIYA

JUDGEMENT

(1.) THE principle of Lis Pendens as contemplated by section 52 of the Transfer of Property Act owes its origin to the maxim of Roman Law "rem de que controversia prohib mur in acrum decicare." This means that where the subject in dispute owing to contest in between parties passes into the custody of the Court, parties arc under an obligation not to withdraw it from the protection of the Court and that is why it was provided that the property involved in a suit cannot be transferred or otherwise dealt with by any party so as to affect the rights of any other party thereto under any decree or order which may be made therein. The consequence, thus, was that a transferee pendente lite remains bound by the ultimate decision of the lis. But these provisions were not meant for enabling a party who had no right, title or interest to snatch away the property from the hands of a purchaser pendente lite on the basis of an admission made by the co -defendant -transferor subsequent to the date of transfer stating that he had no right., title or interest and that the plaintiff was the owner. The reason is that it would be inequitable to allow a person who has parted with his interest in the property in favour of the other to divest the right of the other claiming under him by any statement which he may choose to make subsequently. The claim of the plaintiff -appellant in the present case to secure a decree on the basis of the admission made by defendant No. 1 in an application for compromise has been rejected and his suit claiming declaration of his ownership and permanent injunction has been further dismissed because he failed to establish any such right, title or interest.

(2.) BEFORE this Court also, the plaintiff -appellant claimed a decree not only on merits of his claim but also on the basis of a compromise admitting his claim entered by defendant No. 1 after he had already sold the suit land to defendant No. 2.

(3.) SHRI M.M. Kaushik, learned counsel for the appellant, contended that the reasons given by the lower appellate Court for rejecting the oral testimony of the witnesses examined by the plaintiff to prove the fact of actual possession were not proper. It was pointed out that the lower appellate Court had stated that the witnesses could not give the survey number and the actual area pertaining to each number. It was also pointed out that the lower appellate Court had also observed that the witnesses could not state as to in which year which crop was shown by defendant No. 1. It is true that the lower appellate Court had given the aforesaid reasons which may not be so strong while affirming the judgment of the trial Court, but it is also equally true that the trial Court in its judgment which has been affirmed by the lower appellate Court, had given further reasons for rejecting the oral testimony of the witnesses examined by the plaintiff and accepting that of the witnesses examined by the defendant No. 2. The trial Court had stated in its judgment that since the oral version of the witnesses of defendant No. 2 finds support from the statutory revenue records, the same was liable to be preferred as against the mere oral say of the plaintiff and his witnesses which does not find corroboration in any other manner. The plaintiff had admitted that he never paid any land revenue in respect of the suit land. The revenue records also disclose that the suit land formed part of the holding of Haria and after his death of his son Jalima, and was mutated and assessed accordingly in his favour. The learned counsel for the appellant pointed out that as admitted by the respondent No. 2 also before this Court, the appellant was in actual possession of the suit land and that is why the other side had been restrained by this Court from interfering with his possession during the pendency of this second appeal. Shri N.K. Jain, learned counsel for respondent No. 2, met this contention by pointing out that in the order sheet dated 21 -4 -1975 recorded by this Court, it had been clearly mentioned that according to respondent No. 2 the appellant had wrongfully taken the possession of the property in suit after 14 -2 -1974 by taking advantage of the ex parte order made on 14 -2 -1974. Shri Jain thus stated that there was no question of admission. I have gone through the order sheet and I find that the position stated by Shri Jain is correct. This Court had specifically recorded both the conflicting versions and made the order on the consideration that in any case on the aforesaid date i.e. 21 -4 -1975, the appellant was in possession. This does not improve the case of the appellant so far as the finding of fact recorded by the Courts below regarding the fact of his possession, from 1951 and on wards upto the date of suit is concerned. In the opinion of this Court, the scope of interference with such a finding of fact is little at this stage in second appeal and the same is binding on the parties. Thus, it is apparent that the plaintiff could neither establish his title nor possession over the suit land. His claim for declaration of his rights as owner of the suit land or permanent injunction was, therefore, rightly dismissed on merits.