The revision petitioner is the second plaintiff in the suit in O.S.No.786 of 1986, on the file of the District Munsif Court, Ambasamudram. The said suit has been preferred by the revision petitioner and others against one Madarpandian / third respondent herein and others for partition. It is found that the above said partition suit had ended in a preliminary decree, dated 16.07.1991, after contest, thereby the entitlement of the plaintiffs in the said suit for 23/64th share in the suit properties had been declared. Pursuant to the same, it is found that the plaintiffs moved an application in I.A.No.876 of 2001 for passing the final decree in the said suit. Pending the final decree application, it is found that the plaintiffs and the contesting defendants had entered into a compromise among themselves and accordingly, on the memorandum of compromise submitted by them and the parties having admitted the same to be correct, accordingly, it is found that recording the said compromise, the final decree has been passed in the suit in terms of the compromise and that the compromise entered into between the parties would form part of the final decree. The final decree was passed in the suit on 28.08.2001.
2. As per the terms of the compromise entered into between the parties concerned, it is found that the revision petitioner has been allotted the first item of the suit properties and the remaining items of the suit properties have been allotted to the third respondent herein and it is also found that as per the terms of the compromise, the revision petitioner should take the possession of the property allotted to her through Court process.
3. Pursuant to the passing of the final decree, it is found that the revision petitioner has preferred E.P.No.22 of 2003, under Order XXI Rule 35 of the Code of Civil Procedure, for ordering the delivery of the property allotted to her as per the final decree. Pending the execution petition, it is seen that the first respondent had preferred E.A.No.233 of 2003, under Section 2(2) and 151 and Order XXI Rules 47 & 97 of the Code of Civil Procedure and
Section 44 of the Indian Evidence Act for declaring that the final decree passed in I.A.No.876 of 2001 is null and void and the revision petitioner and others i.e., the respondents in E.A.No.233 of 2003 are not entitled to seek and obtain the possession of the first item of the suit properties from the first respondent and for other reliefs. The said application filed by the first respondent was resisted by the revision petitioner stoutly and it is found that the parties have also tendered evidence with reference to their respective cases.
4. The Court below, on a consideration of the materials placed, has held that the revision petitioner and the other respondents in E.A.No.233 of 2003 are not entitled to seek and obtain the possession of the first item of the suit properties from the first respondent and accordingly, allowed the application in part and dismissed the application in respect of the other reliefs sought for by the first respondent. Impugning the same, the present civil revision petition has come to be preferred by the revision petitioner.
5. The case of the first respondent in E.A.No.233 of 2003 in brief is that he had purchased the first item of the suit properties from the third respondent herein by way of a registered sale deed, dated 12.09.1990 and pursuant to the same, he has also taken possession of the said property and been in enjoyment of the same by paying taxes etc., and thus, according to him, the suit property absolutely belonged to him and the third respondent represented to the first respondent that he has absolute title to the said property and delivered the same to the first respondent and the first respondent has purchased the said property from the third respondent and the first respondent has also been enjoying the property as full owner thereof to the knowledge of the revision petitioner and others. While so, the revision petitioner had objected to his purchase of the said property and further, according to the first respondent, with reference to the said issue, a Panchayat was convened and a Panchayat Nama was also executed, wherein, the third respondent in E.A.No.233 of 2003 i.e., Vadivuammal has received a sum of Rs.10,000/- and also accordingly, an assurance was given to the effect that the property, which had been purchased by the first respondent by virtue of the sale deed, dated 12.09.1990, would be deleted from the suit schedule and the first respondent was also given an assurance that he need not take separate application in the suit and accordingly, the first respondent has also kept quiet and now, the first respondent has come to learn that the revision petitioner, his vendor and others, had colluded together and with a view to grab the property purchased by him from the third respondent, had fraudulently entered into a compromise in the final decree application and obtained an order in terms of the compromise entered among themselves and the said compromise had been entered with a view to defeat and defraud the first respondent in the purchase of the property under the sale deed, dated 12.09.1990, and hence, the final decree passed in I.A.No.876 of 2001 is not valid and not binding upon him and therefore, the same should be declared as null and void and that the revision petitioner should be prevented from seeking the obtainment of the possession of the property purchased by him from the third respondent and hence, the application.
6. The case of the revision petitioner in the above said application is that the first respondent had purchased the property pending suit proceedings in O.S.No.786 of 1986 and therefore, his purchase is hit by the doctrine of lis pendens. The preliminary decree and the final decree passed in the above said suit have become final and no appeal has been preferred as against the decrees passed in the suit. The revision petitioner is entitled to obtain the possession of the property allotted to her as per the decrees passed in the suit and the case of the first respondent that the revision petitioner and others had collusively obtained the final decree in the suit with a view to defeat and defraud the first respondent is false and the application laid by the first respondent, under Order XXI Rules 47 and 97 C.P.C., is not maintainable and inasmuch as the first respondent is the transferee pendente lite, no relief could be granted to him and hence, the final decree passed in the suit is valid and binding upon the first respondent, he being the purchaser pendende lite and hence, the application preferred by the first respondent is liable to be dismissed.
7. It is also noted that in support of the first respondent's case, P.Ws.1 to 3 were examined and Exs.P1 to P5 were marked and on the side of the respondents, R.W.1 was examined and Exs.R1 and R2 were marked.
8. It is not in dispute that the revision petitioner and others had levied the partition suit, in O.S.No.786 of 1986, against the third respondent herein and others and the said suit had ended in a preliminary decree on 16.07.1991. It is to be seen that the revision petitioner Muthulakshmiammal and the third respondent Matharpandian are sister and brother. The suit properties involved in O.S.No.786 of 1986 admittedly belonged to the father of the parties concerned i.e., Nainar Thevar. Accordingly, it is found that claiming shares in the suit properties, the revision petitioner and others had levied the suit. After contest, as adverted to above, the preliminary decree has been passed in the suit declaring the shares of the revision petitioner and others. The final decree application in I.A.No.876 of 2001 preferred thereafter is found to have ended in a compromise among the parties concerned and accordingly, the final decree had come to be passed in terms of the compromise arrived at between the parties and as per the terms of the compromise, it is found that the first item of the suit properties had come to be allotted to the share of the revision petitioner and the remaining items of the suit properties have been allotted to the third respondent. It is also specifically mentioned in the compromise that the revision petitioner has to take possession of the property allotted to her through Court process. Resultantly, it is found that the revision petitioner has preferred E.P.No.22 of 2003 for taking delivery of the property allotted to her. Pending the same, it is found that the first respondent has preferred E.A.No.233 of 2003 mentioned above seeking for the relief of declaration that the final decree passed in I.A.No.876 of 2001 is null and void and for an injunction restraining the revision petitioner and others from taking delivery of the first item of the suit properties, which according to the first respondent, was purchased by him from the third respondent herein by way of a registered sale deed, dated 12.09.1990.
9. It has to be, therefore, seen as to whether the first respondent is entitled to seek and obtain the reliefs sought for in his application. Admittedly, the first respondent has not been granted the relief sought for by him as regards the declaration to declare the final decree passed in I.A.No.876 of 2001 as null and void. As against the said refusal, the first respondent has not preferred any appeal or revision as the case may be. However, the Court below has passed an order restraining the revision petitioner and others from taking delivery of the first item of the suit properties on the footing that the first respondent had purchased the said property from the third respondent and hence, it is only the first respondent, who has title to the said property.
10. The suit for partition having been filed by the revision petitioner and others against the third respondent and othersin the year 1986 itself, it is evident that only pendente lite the first respondent had purchased the first item of the suit properties from the third respondent. Therefore, it is obvious and patent that the sale obtained by the first respondent from the third respondent is hit by the doctrine of lis pendens.
11. As seen from the evidence adduced in the matter and also the materials placed, it is not in dispute that the revision petitioner and the respondents 1 and 3 all hail from the same Village. It is also seen that the first respondent is aware that Nainar Thevar left behind his son / third respondent herein and daughters, including the revision revision petitioner, as his legal heirs. Therefore, it is very clear that the first respondent is aware that the properties left behind by Nainar Thevar are entitled to be inherited by his children and therefore, his case that he had purchased the first item of the suit properties from the third respondent alone believing his representation that he has absolute title to the same as such cannot be countenanced straightaway. The case of the first respondent as seen from the execution application is that believing the representation of the third respondent that he has full title to the first item of the suit properties, he had ventured to purchase the same only from the third respondent, however, it is not his case that he is unaware that the property, which was purchased from the third respondent originally belonged to Nainar Thevar and the said Nainar Thevar left behind not only a son, but also daughters including the revision petitioner. In such view of the matter, his case that believing the representation of the third respondent, he had purchased the property from him and not from the daughters of the deceased Naindar Thevar as such cannot be accepted in any manner. It has not been explained as to on what basis the first respondent had come to the conclusion that it is only the third respondent, who has absolute title to the property purchased by him. As rightly put forth by the learned counsel for the revision petitioner, the first respondent having knowledge that the property purchased by him was acquired by Nainar Thevar and that he had left his son and daughters behind him and particularly, when the first respondent and the other parties involved in this lis hail from the same Village, as rightly argued, it is clear that the first respondent has full knowledge about the entitlement of the daughters to the property purchased by him from the third respondent by virtue of the sale deed, dated 12.09.1990. Therefore, his case that solely believing the representation of the third respondent that he has absolute title to the said property, he had ventured to purchase the same from him alone as such cannot be accepted.
12. As seen from the further case of the first respondent as has been disclosed in the application, the revision petitioner having raised a dispute with reference to the purchase of the first item of the suit properties by the first respondent, in the Village a Panchayat was convened and wherein, according to the first respondent, a Panchayat Nama was also executed and that he had parted with a sum of Rs.10,000/- to Vadivuammal, who is the second respondent herein and thereby, an assurance was given to him that he need not prefer any separate application in the suit to assert his title with reference to the property purchased by him and believing the same, thereafter, he had not taken any steps to get himself impleaded. As regards the above case of the first respondent, the same has not been accepted by the revision petitioner and it has been disputed by her. Despite the same, with reference to the so-called Panchayat etc., absolutely there is no material put forth by the first respondent. Therefore, his case that the parties had settled the issue with reference to the property in question by way of a Panchayat in the Village and therefore, the first respondent had not endeavoured to get himself impleaded in the partition suit as such cannot be countenanced sans any material pointing to the same.
13. The evidence of the first respondent tendered in his application as P.W.1 would go to show that he is aware of the deceased Nainar Thevar, leaving behind his son and daughters to succeed his properties and that knowing the same, he had purchased the property in dispute only from the son / third respondent herein and despite the knowledge of the suit, he has not taken any steps to get himself impleaded in the suit and therefore, in such view of the matter, his case that he is not aware of the final decree passed in the suit as such cannot be believed in any manner. Similarly, as seen from the evidence of P.W.2 examined in the matter, it is found that even he is also aware of the legal heirs of the deceased Nainar Thevar and according to P.W.2, he is not aware as to who among the legal heirs of the deceased Nainar Thevar were enquired by the first respondent before purchase of the property in dispute from the third respondent. Therefore, it is found that P.W.2 is unaware as to under what circumstances, the first respondent had ventured to purchase the property in dispute from the third respondent alone excluding the other legal heirs of the deceased Nainar Thevar. The attestor to the sale deed, dated 12.09.1990, has been examined as P.W.3, who in his evidence, has admitted that they had not enquired as to the encumbrance of the property in dispute before his purchase and the property had been purchased by the first respondent only from the third respondent and there is no material to show that he was instrumental in effecting the sale deed, dated 12.09.1990, between the respondents 1 and 3 in respect of the property in dispute.
14. From the above materials or evidence placed before the Court through the evidence of P.Ws.1 to 3, it is found that without any enquiry as to the exclusive title of the third respondent with reference to the property in dispute and knowing fully well that Nainar Thevar had left his son and daughters as his legal heirs and that the property originally belonged to only Nainar Thevar, it is found that the first respondent had ventured to purchase the property in dispute only from the third respondent with closed eyes and deliberately knowing fully well that the said property not only belonged to the third respondent, but also belonged to the daughters of the deceased Nainar Thevar. Further, it is also found that even at the time of the purchase of the property, the first respondent is well aware of the pendency of the partition suit preferred by the daughters of the deceased Nainar Thevar and his further case that with reference to the issue, a Panchayat had been convened etc., not having been established and therefore, the conduct of the first respondent knowing fully well about the pendency of the suit, his failure to get himself impleaded in the suit and leaving the matter as such to go further, it is evident the first respondent to his full knowledge had only purchased the litigation and therefore, he cannot now come and contend that the parties to the original suit had entered into a compromise fraudulently with a view to defeat and defraud his purchase and hence, the final decree passed in the suit is null and void. It is further found that in view of the above said facts, the first respondent having admittedly knowing about the pendency of the suit for partition, having purchased the property in dispute, it is clear that his purchase is hit by the principles of lis pendens and hence, the decree that is passed in the suit would equally bind him in all aspects as others. Therefore, in the light of the above position, the first respondent cannot claim that he is a bona fide purchaser of the property in dispute and therefore, it is held that the purchase of the property in dispute by the first respondent under the sale deed, dated 12.09.1990, is hit by the doctrine of lis pendens.
15. The purchase made by the first respondent being hit by the doctrine of lis pendens it is found that the final decree passed in the partition suit is binding upon him, the first respondent cannot complain that the parties are not entitled to enter into a compromise in the suit. The parties have during the course of the final decree application endeavoured to give a quietus to the lis and accordingly, it is found that they had arrived at a compromise and under the said compromise, it is found that the first item of the suit properties has been allotted to the share of the revision petitioner. Therefore, in such view of the matter, it is found that merely because the parties have entered into a compromise and obtained a final decree in terms of the compromise, it cannot be inferred without any material that the same had been done only with a view to defeat and defraud the purchase of the first respondent. When the decree passed in the suit would be equally binding upon the first respondent, he being the purchaser pendente lite, he cannot escape from the clutches of the decree and also complain about the decree passed in the suit as if it is null and void. That apart, there is no material as such placed by the first respondent to hold that the parties had fraudulently entered into a compromise with a view to defeat his right over the property in question. Equally, it has not been established by the first respondent by any acceptable and reliable material that the revision petitioner is aware of his purchase of the property in dispute from the third respondent on 12.09.1990. As rightly put forth by the learned counsel for the revision petitioner, if the revision petitioner had been aware of the purchase made by the first respondent, she would not have accepted the allotment of the said property in her favour and left the other properties to her brother / third respondent herein. Accordingly, it is found that the revision petitioner being unaware of the purchase of the property by the first respondent in an endeavour to arrive at a settlement as regards the lis between her, her brother and others effected the compromise in the matter and accordingly, agreed for the allotment of the property in dispute to her in the final decree. Therefore, when the revision petitioner has not been shown to be anyway responsible for the allotment of the property in dispute to her in the final decree so as to defeat and defraud the interest of the first respondent it is found that the first respondent being the purchaser pendente lite and also having knowledge about the pendency of the suit cannot now complain that the revision petitioner had agreed for the allotment of the property in dispute to her despite having knowledge about his purchase of the suit property.
16. The application has been preferred by the first respondent under Order XXI Rule 47 C.P.C. However, as rightly seen, the said provision of law is not applicable to the case and hence, the application laid under the above said provision of law is not maintainable. It is further found that the application has come to be laid under Order XXI Rule 97 C.P.C., also. A perusal of the Order XXI Rule 97 C.P.C., would go to show that the said provision could be invoked only by the holder of a decree for the possession of the immovable property or the purchaser of any such property sold in execution of a decree, particularly, when he is resisted or obstructed by any person in obtaining possession of the property through the Court process. Therefore, when it is found that the said provision of law could not be invoked by the first respondent, it is found that the application laid under Order XXI Rule 97 C.P.C., is also not maintainable.
17. That apart, it is also found that once the first respondent's purchase is hit by the principles of lis pendens, it is found that as per Order XXI Rule 102 C.P.C., the provisions contained in Order XXI Rules 98 and 100 C.P.C., shall not apply to the resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. Further, when it is found that in the applications laid under either Order XXI Rule 97 or Rule 99 C.P.C., all the questions relating to right, title or interest in the property have to be determined by the Court concerned as per Order XXI Rule 101 C.P.C., and thereafter, the Court has to pass necessary orders either under Order XXI Rule 98 or Rule 100 C.P.C., when the above said provisions of law are not entitled to be invoked by a transferee pendente lite i.e., the person, like, the first respondent, it is found that even on the above grounds, the application laid by the first respondent under Order XXI Rule 97 is not maintainable.
18. In the light of the above position, the contention put forth by the learned counsel for the first respondent that the impugned order having come to be passed in the application preferred under Order XXI Rule 97 C.P.C., and the order passed in such application is in the nature of the decree, as per Order XXI Rule 103 C.P.C., according to him, only appeal would lie against the order passed under the above said provision of law and no revision would lie cannot be acceded to. As rightly put forth by the revision petitioner's counsel, when the first respondent has not established that he is entitled to maintain the application under Order XXI Rule 97 C.P.C., further when he being the transferee pendente lite, he is not entitled to seek for the adjudication as to his right, title or interest over the property in dispute as provided under Order XXI Rules 102, 98 and 100 C.P.C., it is found that the contentions put forth by the first respondent's counsel that revision as against the impugned order would not lie and appeal alone would lie cannot be accepted. He having not established and maintained that he is entitled to invoke Order XXI Rule 97 C.P.C., it is found that the above contention put forth by the learned counsel for the first respondent does not merit acceptance. It is therefore found that the revision preferred as against the impugned order is maintainable.
19. That apart it is also found that as rightly argued by the learned counsel for the revision petitioner, the Court below has not explained or pointed out as to under what provision of law it has come to pass the impugned order in the matter. Therefore, when the Court below itself is not clear as to under what provision of law it has come to pass the impugned order, it is found that the application preferred by the first respondent seeking for declaration to declare the final decree passed in the suit as null and void and for injunction preventing the revision petitioner from taking the delivery of the property in dispute pursuant to the final decree as such cannot be accepted and also found to be not in accordance with the provision of law.
20. In addition to that it is found that the Court below, having held that the first respondent is not entitled to seek for declaration to declare the final decree as null and void, has not explained as to how when the main relief sought for by the first respondent has been declined, would be entitled to obtain the consequential relief of preventing the revision petitioner from taking delivery of the property, particularly, when the purchase of the first respondent is found to be hit by the principles of lis pendens and the decree passed in the suit is equally binding upon him as one of the parties to the suit and when the first respondent has not established that the compromise decree passed in the final decree application is vitiated by any fraud or other irregularities and when there is no bar in law to arrive at a compromise in a lis, it is found that the Court below had wrongly granted the relief sought for by the first respondent as regards the disentitlement of the delivery of the property sought for by the revision petitioner pursuant to the final decree passed in the suit. On the above ground also, it is found that the impugned order does not merit acceptance and it is liable to be set aside.
21. The other provision of law, namely, Section 2(2) C.P.C., and
Section 44 of the Indian Evidence Act, under which the first respondent has based his application are found to be not relevant provisions of law for maintaining the application and therefore, on the above said provisions of law also, it is found that the application preferred by the first respondent is not maintainable.
22. The only provision of law, which remains is Section 151 C.P.C. However, considering the reasons aforementioned, when it is found that the first respondent has purchased the property in dispute pendente lite, knowing fully well about the pendency of the lis and also not from the owners of the property in toto and obtained the purchase only from one of the owners i.e., the third respondent excluding the other owners, it could be seen that the purchase made by him is not binding upon the revision petitioner and the other legal heirs of the deceased Nainar Thevar. Similarly, as already adverted to, when the first respondent has failed to establish that the parties have entered into a compromise decree, particularly, the revision petitioner herein with a view to defeat and defraud his purchase, it is found that he being the transferee pendente lite, the decree passed in the suit is binding on the first respondent and therefore, he is not entitled to maintain any application to resist the obstruction of the delivery to which the revision petitioner is entitled to in terms of the decree passed in the suit.
23. As rightly argued by the learned counsel for the revision petition, if at all the first respondent is aggrieved in the matter, his remedy lies only as against the third respondent and therefore, it is open to the first respondent to seek appropriate remedies as against the third respondent if permitted under law.
24. The learned counsel for the revision petitioner in support of his contentions placed reliance upon the decisions reported in AIR 1973 Mysore 131 [Mohammed Ali Abdul Chanimomin vs. Bisahemi Kom Abdul Saheb Momin and another], AIR 1989 Rajasthan 43 [Mohammad Aleem vs. Maqsood Alam and others] and 2015 (1) CTC 460 [Pachamuthu vs. K.Thangamuthu]. The principles of law enunciated in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
25. In the light of the above discussions, the fair and decreetal orders, dated 29.11.2004, made in E.A.No.233 of 2003 in E.P.No.22 of 2003 in O.S.No.786 of 1986, on the file of the District Munsif Court, Ambasamudram, with regard to the fiat that the respondents in the above said execution application are not entitled to obtain the possession of the property in dispute from the first respondent herein are set aside and the application in E.A.No.233 of 2003 is dismissed in its entirety with costs. Accordingly, the civil revision petition is allowed with costs.
To:
The District Munsif, Ambasamudram.
.