BHAI ISHARDAS Vs. GOVINDI

JUDGEMENT

(1.) THIS is a defendant's second appeal directed against the judgment and decreed passed by the Additional District Judge No. 1, Jaipur City, dated 31st May, 1972, by which the learned Judge set aside the decree passed by the trial court and decree the plaintiff-respondent's suit declaring that the property in question, which is the outer chowk of a house situated at Chowkri Purani Basti in the City of Jaipur belongs to the plaintiff-respondent and the sale of the same in execution of the decree obtained by Ambalal against the judgment-debtor Ganganarayan, was ineffective against the plaintiff. He also issued a perpetual injunction against the defendant restraining them from interfering with the plaintiff's possession over the suit property.

(2.) BRIEFLY stated the facts are as follows - One Ambalal obtained a money decree against one Ganganarain on May 6, 1947. In execution of that decree the suit property was sold on October 8, 1956, and the defendant-respondent Smt. Dhapa purchased it. The sale was confirmed on 18-12-1956, and sale-certificate was granted on May 22, 1961. Thereafter she entered into an agreement for sale of this property with the appellant Bhai Ishardas on August 24, 1961. The sale-deed was got registered by Smt. Dhapa on October 16, 1961. This is how Ishardas has come into the picture. The plaintiff-respondent Bhaironlal was married to the sister of the judgment-debtor Ganganarain. He died during the pendency of the first appeal and is now represented by his widow respondent No. 1 Smt. Govindi. The plaintiff's case, as set out in the plaint, is that Bhaironlal was married to Ganganarain's sister. On account of this relationship Ganganarain agreed to make a gift of the property in question on 10-1-1946 and actually, got the gift deed registered in Bhaironlal's favour on 9-9-1946. The gift deed was not only with respect to the suit property, but in respect to other portions of the house also. In other words the outer Chowk, which is the property in dispute, is only a part of the house, which had been gifted to Bhairon Lal by Ganganarain. It appears that sometime after the gift deed had been executed and registered, there were some differences between Ganganarain and Bhaironlal as a result of which Ganganarain executed a sale-deed in respect of a part of the property already gifted to Bhaironlal in favour of defendant No. 2 Surajmal, who too has died during the pendency of this litigation. But his legal representatives have not been brought on record. When the suit property was attached in execution of the decree in favour of Ambalal against Ganganarain, Bhaironlal filed objection under O. 21, R. 58 C. P. C. , which was allowed. Consequently Ambalal filed a regular suit under O. 21, R. 63, C. P. C. This suit was decreed by the trial court on February 29, 1956 and it was held that the property belonged to Ganganarain and had rightly been sold in execution of the decree against him. Bhaironlal filed appeal, which was allowed on February 6, 1957, and it was held that the suit property was not liable to be attached and sold in execution of decree against Ganganarain, as, before the date of attachment the property already stood transferred to Bhaironlal. As regards the sale of the other part of the house in favour of Surajmal, Bhaironlal filed a suit alleging that the sale in favour of Surajmal was void inasmuch as before the date of the sale the property had been gifted to him. This suit was decreed on October 16, 1958. The plaintiff's case, thus, is that having succeeded both against Ambalal and Surajmal he was recognized to be the undisputed owner of the whole of the house. He has alleged that he had no knowledge about the auction of the suit property in course of execution of the decree of Ambalal nor had he knowledge about the subsequent sale made by the auction purchaser Smt. Dhapa in favour of Bhai Ishardas and that he came to know of this fact when the defendant appellant collected building material at the site and started digging foundation for raising construction. On these allegations the plaintiff brought the present suit on December 23, 1961.

(3.) LEARNED counsel for the appellant has, however, urged that a transfer lis pendens is not a nullity and is not void ab initio. In support of his contention he has cited T. L. Desai vs. Yogabai Paranjape (4); Kartikdas vs. Ganeswar Acharya (5); and Indu Bhushan vs. Sudhakar (6 ).