RADHASHYAM ROUTRAY Vs. PURANJAN MOHAPATRA

JUDGEMENT

(1.) The core question that arises for consideration in this appeal is whether the transfer of the suit property in favour of the appellant is hit by the principle of lis pendens embodied in S.52, T.P. Act. The relevant facts giving rise to the present appeal may be shortly stated thus : The appellant filed Title Suit No. 78/2 of 1969/73 in the Court of the Second Munsif, Cuttack for declaration of his title over the disputed property and for declaration of his possession or in the alternative recovery of possession and for permanent injunction against the respondents 1 and 2. The suit property comprised of a total area of A.0.59 decimals out of which A.0.42 decimals were under plot No. 1151 and A. 0.17 decimals were under plot No. 1152. This property was allotted to the share of Banshidhar Mohapatra, respondent 3, in the suit for partition filed by him (T.S. No. 71 of 1960). In the said suit the final decree (Ext. 1) was passed on 17-10-1963. Thereafter, on 2-11-1964 Banshidar Mohapatra sold the property in favour of the appellant by a registared sale deed (Ext. 1) and delivered possession to him. It was the further case of the appellant that in Misc. Case No. 132 of 1964 filed for review of the final decree in Title Suit No. 71 of 1960 his vendor Banshidar Mohapatra entered into a compromise with other co-sharers whereunder A.0.38 decimals from the southern side of plot No. 1151 was allotted to Parbati Bewa, mother of Banshidhar Mohapatra, and rest A. 0.46 decimals from the northern side was allotted to Karunakar Mohapatra. A. 0.17 decimals from. plot No. 1152 also fell to the share of Karunakar. On 24-4-1965 Parbati Bewa gifted her share in plot No. 1151 in favour of Laxmipriya, wife of Banshidhar. On 25-10-1965 Parbati Bewa cancelled the said deed of gift and on the same day executed a sale deed in favour of respondents 1 and 2. Subsequently on 31-10-1967 respondents 1 and 2 (defendants 1 and 2) obtained another sale deed in respect of A.0.38 decimals from plot No. 151 from Laxmipriya. On the basis of the aforementioned sale deeds respondents 1 and 2 created disturbance in the peaceful possession of the plaintiff-appellant. Hence the suit.

(2.) Respondents 1 and 2 (defendants 1 and 2) in their written statement refuted the claims of the plaintiff. Their case in short was that the partition suit (T.S. No. 71 of 1960) was finally disposed of by the compromise decree on 18-12-64 whereunder suit plot No. 1151 with a total area of A.0.84 decimals was allotted to different parties including A.0.84 decimals to Parbati Bewa. Accordingly Parbati Bewa became the absolute owner of the said property by virtue of the final decree in the suit. She sold the property on 25-10-65 for a consideration of Rs. 2500/- in favour of defendants 1 and 2 and Banshidar Mohapatra,(defendant 3) signed as a witness in the sale deed. Since then these respondents have been in possession of the property purchased by them. Subsequently coming to know that the property was the subject-matter of the deed of gift by Parbati Bewa in favour of Laxmipriya which was not acted upon and possession was never delivered to Laxmipriya, by way of abundant caution the respondents obtained, another registered sale deed on 2-11-67 from Laxmipriya for the aforementioned A.0.38 decimals in plot No. 1151.

(3.) The trial Court on consideration of the respective cases of the parties decreed the suit holding that as per the final decree dt. 17-10-63 the appellant's vendor had title in the suit property on 2-11-64 when he sold the y same to the appellant. In appeal by respondents 1 and 2, the aforesaid decision of the trial Court was reversed by the lower appellate Court and the suit was dismissed mainly on the ground that the sale in favour of the appellant was hit by the principles of lis pendens and the appellant was bound by the compromise decree in Title Suit No. 71 of 1960.