Madhya Pradesh High Court
Vipra Charitable And Educational Trust … vs Satya Prakash Mohta on 11 December, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:62929
1 MP-5924-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 11th OF DECEMBER, 2024
MISC. PETITION No. 5924 of 2024
VIPRA CHARITABLE AND EDUCATIONAL TRUST THROUGH
NAVNEET MAHESHWARI SON OF LATE MUKUND DAS
MAHESHWARI
Versus
SATYA PRAKASH MOHTA AND OTHERS
Appearance:
Shri Ravindra Kumar Gupta - Advocate for petitioner.
Shri R.K. Tiwari - Advocate for respondent No.1 through LRs.
Shri Divyanshu Tiwari - Advocate for respondent No.8.
ORDER
Assailing the order dated 02.09.2024 passed by the Third Civil Judge,
Class I, Patan, District Jabalpur whereby, the application filed by the
petitioner/plaintiff under Order 14 Rule 5 CPC has been dismissed, the
present petition has been filed.
2. It is the case of the petitioner that the suit for declaration and
permanent injunction has been filed with respect to the land bearing Khasra
No.257/6. 256/7, area 15.44 acres, new Khasra No.(247). In the original civil
suit the plaintiff prayed for the following relief:-
“A. That the suit-affected land situated in Mauja Mankendi
P.H.No.45, Tehsil Shahpura, District Jabalpur, New Kha.No. 247
area15.44 acres i.e. 6.03 hectares, which is shown in red colour as A,B,
C, D, Ka, Kha, Ga, Gha in the computer map attached withthe plaintSignature Not Verified
Signed by: LORETTA RAJ
Signing time: 23-12-2024
15:53:40
NEUTRAL CITATION NO. 2024:MPHC-JBP:629292 MP-5924-2024
because it is crooked. The plaintiff should be declared the owner of the
land on the basis of settled possession.
B. That a permanent injunction be passed in favour of the plaintiff that
the defendants should not interfere in the agricultural work in the
possession of the plaintiff either by themselves or through someone
else, should not interfere in the agricultural work and should not let,
sell, give or transfer the disputed land to anyone i.e. should not transfer
or transfer it in any form.
C. The plaintiff also wants permission to add 2A in the prayer of the
plaint in this way – that two lakh rupees for crop loss and interest
should be given to the plaintiff in favour of the plaintiff. This clause
has been added by the plaintiff after amendment.
D. That the litigation expenses and other relief which is just should be
given to the plaintiff jointly and separately from the defendants.”
3. It is argued that the defendant Nos.1 to 4 are family members of the
plaintiff. Defendants No.5 & 6 are other authorities. During the pendency of
the suit defendants No.1 to 4 fraudulently and illegally sold the said suit
property on 25/07/2018 to Defendant No.1-A/Anurag Singh, Defendant
No.1-B/Mayank Singh and Defendant No.1-C/Vikram Dubey, through two
registered sale deeds despite of the fact that there was stay order of
02.04.2018 in the appeal presented before the Additional Commissioner,
Jabalpur.
4. The managing trustee and lawyer who was handling the case, expired
during the pendency of the appeal. The plaint was accordingly amended. The
plaint was amended but the amendment required for proper disposal of the lis
could not be carried out. The application under Order 6 Rule 17 of CPC was
filed which was not accepted by the trial Court, the same has been rejected.
Thereafter, the application under Order 14 Rule 5 CPC was filed which was
Signature Not Verified
Signed by: LORETTA RAJ
Signing time: 23-12-2024
15:53:40
NEUTRAL CITATION NO. 2024:MPHC-JBP:62929
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rejected by the trial Court. It is the case of the petitioner that once the
Registry has been done creating the third party interest in the property, they
are necessary party to the proceedings and the relief for setting aside of the
subsequent sale deed is required to be done.
5. The learned trial Court failed to appreciate the aforesaid aspect and
dismissed the application, therefore this petition has been filed.
6. On notice being issued the respondents have marked their presence
pointing out the fact that the civil suit will be governed by the theory of lis
pendence. It is a specific case of the plaintiff that there was an interim relief
granted by the trial Court but despite of the same, the sale deed has been
executed. It is pointed out that the stay order was granted on 02.04.2018 and
the sale deed actually was registered on 25.07.2018. It is further contended
that the contempt proceedings should have been initiated by the petitioner.
7. Learned counsel for the respondents has placed reliance upon the
recent judgment passed by the Hon’ble Supreme Court in the case of M/s
Siddamsetty Infra Project Pvt. Ltd. v. Katta Sujatha Reddy and others : 2024
Live Law SC 870 wherein Section 52 of the Transfer of Property was taken
note off and the doctrine of lis pendence was considered. It is argued that if
there is a interim order granted by the Court and during the concurrence of
the interim order if some properties have been sold, then the sale deeds could
always be declared as null and void in contempt proceedings. There is no
requirement to frame additional issue in the matter or to implead the parties
to the proceedings. He has prayed for dismissal of the petition.
8. Heard the counsel for the parties and perused the record.
Signature Not Verified
Signed by: LORETTA RAJ
Signing time: 23-12-2024
15:53:40
NEUTRAL CITATION NO. 2024:MPHC-JBP:62929
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9. The admitted facts being that during the pendency of the civil suit the
properties in question were sold out on 25.07.2018 by two registered sale
deeds. There was an interim order granted on 02.04.2018. The petitioner
could have initiated contempt proceedings against the act of the defendants
in selling the properties and creating a third party interest during the
pendency of the civil suit. Creation of the third party interest will be
governed by the theory of lis pendence and Section 52 of the Transfer of
Property Act.
10. The Hon’ble Supreme Court in the case of M/s Siddametty Infra
Projects (supra) has held as under:-
“47- In short, the doctrine of lis pendens that Section 52 of the Transfer of Property
Act encapsulates, bars the transfer of a suit property during the pendency of
litigation. The only exception to the principle is when it is transferred under
the authority of the court and on terms imposed by it. Where one of the parties to
the suit transfers the suit property (or a part of it) to a third-party, the latter is bound
by the result of the proceedings even if he did not have notice of the suit or
proceeding. The principle on which this doctrine rests was explained by Lord Turner
in Bellamy v. Sabine11 as follows:
“It is, as I think, a doctrine common to the courts both of Law and Equity
and rests, as I apprehend, upon this foundation that it would plainly be
impossible that any action or suit could be brought to a successful
termination, if alienations pendente lite were permitted to prevail. The
plaintiff would be liable in every case to be defeated by the
defendants alienating before the judgment or decree, and would be driven to
commence his proceedings de novo, subject again to be defeated by the
same course of proceedings. The purpose of lis pendens is to ensure that the
process of the court is not subverted and rendered infructuous. In the
absence of the doctrine of lis pendens, a defendant could defeat the purpose
of the suit by alienating the suit property.
49- This purpose of the provision is clearly elucidated in the explanation clause
to Section 52 which defines “pendency”. Amending Act 20 of 1929 substituted
the word “pendency” in place of “active prosecution”. The Amending Act also
included the Explanation defining the expression “pendency of suit or proceeding”.
“Pendency” is defined to commence from the “date of institution” until
Signature Not Verified
Signed by: LORETTA RAJ
Signing time: 23-12-2024
15:53:40
NEUTRAL CITATION NO. 2024:MPHC-JBP:629295 MP-5924-2024
the “disposal”. The argument of the respondents that the doctrine of lis
pendens does not apply because the petition for review was lying in the
registry in a defective state cannot be accepted. The review
proceedings were “instituted” within the period of limitation of thirty
days. The doctrine of lis pendens kicks in at the stage of “institution”
and not at the stage when notice is issued by this Court. Thus, Section
52 of the Transfer of Property Act would apply to the third-party
purchaser once the sale was executed after the review petition was
instituted before this Court. Any transfer that is made during the
pendency is subject to the final result of the litigation.”
11. If the judgment passed by the Hon’ble Supreme Court is considered,
then it is clear that then there is no requirement to frame additional issue in
the matter or to implead the third party in whose favour the sale deed has
been executed. The learned trial Court rightly considered both the
applications and rejected them. It was further observed by the learned trial
Court that the fact of execution of the sale deed was in the knowledge of the
plaintiff. But despite of that they have not chosen to ask for the said relief on
the earlier occasion, even though the amendment was carried out. The
plaintiff was having information with respect to execution of sale deed in the
year 2019 itself because he filed an application for amendment on
18.05.2019, to implead the third person in whose favour the sale deed was
executed. Despite of the same he waited for 4-5 years to file such an
application for the declaration of the sale deeds to be null and void. There is
no explanation for the same by the plaintiff. Even otherwise, in terms of the
judgment passed by the Hon’ble Supreme Court in the case of M/s
Siddametty Infra Projects (supra) the civil suit will be valid by Section 52 of
the Transfer of Property Act and the sale deed executed can always be
declared to be void in contempt proceedings. Under these circumstances, no
illegality is committed by the learned trial Court in rejecting the
Signature Not Verified
Signed by: LORETTA RAJ
Signing time: 23-12-2024
15:53:40
NEUTRAL CITATION NO. 2024:MPHC-JBP:62929
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applications.
12. Moreover, this is a petition under Article 227 of the Constitution of
India having a limited scope of interference as has been held by the Hon’ble
Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar
Patil reported in (2010) 8 SCC 329, wherein certain guidelines have been
framed by the Supreme Court, which are as under :-
“The scope of interference under Article 227 of the Constitution is limited. If
order is shown to be passed by a Court having no jurisdiction, it suffers from
manifest procedural impropriety or perversity, interference can be made.
Interference is made to ensure that Courts below act within the bounds of their
authority. Another view is possible, is not a ground for interference. Interference can
be made sparingly for the said purpose and not for correcting error of facts and law
in a routine manner.”
13. Accordingly, this petition deserves to be and is hereby dismissed.
(VISHAL MISHRA)
JUDGE
L.Raj
Signature Not Verified
Signed by: LORETTA RAJ
Signing time: 23-12-2024
15:53:40