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Res judicata - Decision in suit for injunction, if operates as res judicata - Matruka properties - Sui/ by owners son for partition of properties comprised in Schedule A, B, C - Son sold property lo BM by sale deed - Also sold share inherited by other co-heirs to BM - Preliminary decree for partition determining shares of the legal heirs whereby, defendant no: 1 was having only 14/104th share in matruka properties - Before passing of final decree, suit for injunction by purchasers on the basis of sale deed which was dismissed - Judgment affirmed in first appeal and also held that land grabbing case was dismissed which attained finality and barred the present suit - Held: Submission that the finding in suit for injunction did not operate as res judicata as it was left ultimately to raise the objections in the final decree proceedings cannot be accepted - There was clear inability to grant injunction - BM could have purchased only the share of his vendor and not the entire disputed property and the purchase was affected by lis pendens - Finding with respect to purchase being made during lis pendens had attained finality and was not open to question in the present proceedings. Doctrines/Principles - Doctrine of lis pendens - Execution of sale deed dated 23.11.1959 by defendant no.1 in favour of purchase ; if affected by doctrine of lis pendens - Held: Partition suit had not been dismissed at all in the eyes of law - lt is to be treated as pending only ~ No legal fiction can be created that the suit itself had been dismissed on 15.12.1955 due to non-payment of costs for restoration; whereas ii was not dismissed at all - High Court also held that the order dated 1.12.1955 dismissing suit for non-payment of cost, was without jurisdiction - Suit was pending and wrongly treated as dismissed - Thus, the sale deed was executed during lis pendens. Transfer of Property Act, 1882: s. 52 - Transfer of property pending suit relating thereto - s. 52, if renders a transfer pendente lite void - Held: Doctrine o.f lis pendens does not affect the conveyance by a party to the suit but only renders it subservient to the rights of other parties to the litigation - Thus, s. 52 will not render a transaction void - On facts. sale deed not void but only valid to the extent of the share o.f vendor of BM which has been found in the preliminary decree and affirmed in the final decree. s. 52 - Execution of sale deed during pendency of suit - Owners son sold his share as also share of other co-share - Necessity of filing suit for cancellation of sale deed - Held: Not necessary - Provisions of s. 52 prevent multiplicity of the proceedings - When sale deed had been executed during the pendency of suit the purchaser pendente lite is bound by the outcome of the suit - Vendor had no authority to sell land of other co-sharers - He had right to alienate his own share only - As such the right, title and interest of BM were subject to the pending suit for partition in which a preliminary decree was passed.Decree - Preliminary decree for partition - Effect of and the extent of bindingness - Preliminary decree passed - Declaration o.f shares to the said extent of the respective parties-legal heirs of the owner - Held: Preliminary decree attained finality - Thus, the determination of shares as per preliminary decree has attained finality, shares of the parties had been· crystallised in each and every property - Purchaser pendente lite is bound by the preliminary decree with respect to the shares so determined and it cannot be reopened and whatever equity could have been claimed in the final decree proceedings lo the extent of vendors share has already been extended to the purchasers - Further s.97 CPC stales that the matters concluded by preliminary decree cannot be re-agitated in an appeal against the final decree.Adverse possession: Plea of - Suit for partition - During pendency, execution of sale deed by owners son in favour of BM - if BM, his heirs and purchasers perfected their right, title and interest by virtue of adverse possession - Held: In an earlier suit plea of adverse possession had been negative - Sale deed was hit by the doctrine of lis pendens, the purchasers were bound by the result of the suit - s: 52 negates the very plea of adverse possession - Thus, there was no question of perfecting the .title by adverse possession during pendency of suit - High Court erred in law in holding that the plaintiffs perfected their title by virtue of adverse possession.Adverse possession - Plea ~ Requirements of - Held: Three requirements of plea of adverse possession i.e. '"nec vi, nec clam, nec presario" i.e., peaceful, open and continuous - Merely a bald statement that there was adverse possession is not enough to set up the plea - It has to be clearly set out from which date it commenced, and became hostile when there was repudiation of the title. Muslim law - Nature of succession - Co-sharer, a Muslim, alienating share of other co-sharers in the disputed property - Legality of - Held: Sale by co-sharer is not of undivided share but that of a specific property in which he had only specific share - Thus , being a tenant-in-common he. had no authority or right to sell the share of other co-owners - Vendor had the right to sell to the extent of his own share considering the nature of succession amongst Mohammedans and sale beyond his specific share was void - Thus, the sale of property of other co-sharers was illegal and void. Equity - Suit for partition - Claim of equity by purchaser for allotment of property in final decree proceedings - Held: It was open to the executing court lo adjust equity of purchasers to the permissible extent as purchasers pendente lite can work out the equities in accordance with law in the final decree proceedings - Though purchasers can work out the equity in the final decree proceedings but it is only to the legally permissible extent and not beyond that - Preliminary decree declared the shares in the property in specified shares - Preliminary decree is binding and even otherwise the sale was valid only to the extent of the share of vendor - Thus, by no equitable principle the purchaser can claim the entire property to be allotted to him - Also as per the Mohammedan Law sale beyond the extent of the share of vendor was void.Legal necessity- Sale of properly, whether for legal necessity, and thus, binding - Execution of sale deed during pendency of suit - Owners son sold his share as also share of other co-share - Held: Recital of sale deed makes it clear that the sale was effected by the co-sharer for his 'personal necessity' - He had not executed the sale deed for payment of land revenue as its recital is otherwise which would prevail - Nor the sale deed had been executed in the fiduciary capacity acting on behalf of co-sharers - Even otherwise under the Mohammedan Law. it was not open to co-sharer to act in fiduciary capacity to sell the property and bind shares of others. Land Laws - Pattedar rights - Effect of proceedings under the Tenancy Act, 1950 - Matruka property - Suit for partition - During pendency. sale of property by one heir to BM - BM, whether pattedar vide conveyance deed - Held: It was matruka property and suit for partition was pending w.e.f 1935 and mutation simpliciter in the name of vendor conferred no right, title or interest - Mutation is only for the fiscal purpose and is not decisive of right, title or interest in the property which is within the domain of the civil court - Grant of patta from 1953 onwards by co-sharer to purchaser was on yearly basis and the execution of sale deed and the grant of land on yearly basis were during /is pende11s - Thus, the transactions are covered by the doctrine of lis pendens and were subject to the outcome of the pending partition proceedings - No force in the submissions based upon palledar rights as it was subject to s. 52 of the T.P Act. Land Laws - Pattedar rights - Effect of proceedings under the Tenancy Act, 1950 - Matruka property - Suit for partition - During pendency sale of property by one heir to BM - BM, whether pattedar vide conveyance deed - Held: It was A1atruka properly and suit for partition was pending w.e.f 1935 and mutation simpliciter in the name of ve11dvr conferred no right, title or interest - Mutation is only for the fiscal purpose and is not decisive of right, title or interest in the property which is within the domain of the civil court - Grant of patta from 1953 onwards by co-sharer to purchaser was on yearly basis and the execution of sale deed and the grant of land on yearly basis were during /is pende11s - Thus, the transactions are covered by the doctrine of lis pendens and were subject to the outcome of the pending partition proceedings - No force in the submissions based upon palledar rights as it was subject to s. 52 of the T.P Act. |
