These revisions are preferred under Section 115 CPC against the orders passed by the learned Principal City Civil Judge in CMP Nos.1605 and 1606 of 2006 in A.S.S.R.No.37262 of 2006 dated 7.7.2008 For Petitioners in both CRPs : Mr.M.Venkatachalapathy, Senior Counsel for Mr.G.Karthikeyan For Respondent-6 in : Mr.P.Ramesh Kumar both CRPs C O M M O N O R D E R These Civil Revision Petitions have been filed by third parties to a decree, passed by the II Assistant City Civil Court, Chennai, challenging a common order, by which, their applications to condone the delay and to grant leave to file a First Appeal, were dismissed by the lower Appellate Court.
2. I have heard Mr.M.Venkatachalapathy, learned Senior Counsel for the petitioners and Mr.P.Ramesh Kumar, learned counsel appearing for the sixth respondent, who has entered caveat.
3. The respondents 1 to 5 herein filed a suit in O.S.No.2549 of 1991 on the file of the II Assistant Judge, City Civil Court, Chennai, against the respondents 6 and 7 herein, seeking the following reliefs:-
(a) for declaration of plaintiffs and second defendant's title to the 'B' Schedule property;
(b) for mandatory injunction directing the first defendant to restore or put up the wall ABCD in the 'B' Schedule property as before.
(c) for mandatory injunction directing the first defendant to remove the construction put up in the 'B' Schedule property.
(d) for mandatory injunction directing the first defendant to remove debris and other rubbish and bricks dumped in the 'B' Schedule property.
(e) for injunction restraining the first defendant from in any way interfering with the possession and enjoyment of 'B' Schedule property by plaintiffs and second defendant and
(f) for recovery of possession of encroached portion in the 'B' Schedule property from the first defendant to plaintiffs.
4. While the sixth respondent herein (first defendant in the suit) filed a written statement and contested the suit, the seventh respondent herein (second defendant) remained ex parte. One witness was examined on either side and 19 documents were filed on the side of the plaintiffs. No documents were filed on the side of the defendants.
5. By a judgment and decree dated 25.2.2004, the trial Court dismissed the suit, after holding that the plaintiffs were not entitled to either a declaration or permanent or mandatory injunction and that the plaintiffs were also not entitled to the relief of recovery of possession. The trial Court actually accepted the case of the first defendant that there was no ABCD wall or CDEF pathway.
6. The decree passed by the trial Court attained finality, since the plaintiffs did not challenge it on appeal. Without challenging the decree of dismissal of the suit, passed on 25.2.2004, the plaintiffs in the suit (respondents 1 to 5 herein) sold an undivided share in the suit 'A' Schedule property to the first petitioner herein, by a sale deed dated 10.4.2006 registered as document No.381 of 2006 on the file of the Sub Registrar, Sowcarpet. The second defendant in the suit who remained ex parte, (seventh respondent herein) also sold his share to the petitioners herein, by a sale deed dated 10.7.2006 registered as document No.818 of 2006, in the office of the Sub Registrar, Sowcarpet. Thus, the petitioners herein became the owners of the suit 'A' Schedule property, after two years of the judgment and decree that went against their vendors.
7. After purchasing the suit 'A' Schedule property, the petitioners herein filed an appeal in A.S.S.R.No.37262 of 2006 against the judgment and decree of the trial Court, along with CMP No.1605 of 2006 to grant leave to file the appeal and CMP No.1606 of 2006 to condone the delay of 545 days in filing the appeal. These two petitions were dismissed by the lower Appellate Court, by a common order dated 7.7.2008. It is against this order that the petitioners have come up with the present Civil Revision Petitions.
8. Mr.M.Venkatachalapathy, learned Senior Counsel for the petitioners contended that under Order XXII, Rule 10 read with Section 146 CPC, the petitioners had become successors in interest to the plaintiffs and that therefore the right to prosecute the remedy of appeal devolved on the petitioners. He also contended that by virtue of
Sections 41 and
43 of the Transfer of Property Act, the petitioners had a right to pursue the appeal. The learned Senior Counsel relied upon two decisions of the Apex Court in Raj Kumar Vs. Sardari Lal and Others {(2004) 2 SCC 601} and Hardev Singh Vs. Gurmail Singh {(2007) 2 SCC 404}.
9. It is true that Order XXII, Rule 10 enables an assignee or a person in whose favour an interest is created or on whom a devolution of any interest had taken place during the pendency of the suit, to continue the suit with the leave of the Court. The provision reads as follows:-
"10. Procedure in case of assignment before final order in suit. -- (1) in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)."
Section 146 also speaks of a similar entitlement of a person claiming under one of the parties to the suit. It reads as follows:-
"146. Proceedings by or against representatives. -- Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him."
10. It is the contention of the learned Senior Counsel for the petitioners that since an appeal is a continuation of the suit, the petitioners were entitled by virtue of the above provisions of the Code, to prosecute the same, with the leave of the Court, as a devolution of interest in the suit property had taken place in their favour.
11.
Sections 41 and
43 of the Transfer of Property Act, on which reliance is placed by the learned Senior Counsel for the petitioners, read as follows:-
"41. Transfer by ostensible owner. -- Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it.
Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
"43. Transfer by unauthorised person who subsequently acquires interest in property transferred. -- Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."
12. Placing reliance upon the above provisions of the Transfer of Property Act, the learned Senior Counsel for the petitioners contended that the purchase of suit 'A' Schedule property by the petitioners, from the plaintiffs in the suit, was in good faith for valuable consideration and that therefore such transfer would operate on any interest that the transferors may acquire at any subsequent point of time. If the transferors had filed an appeal against the judgment in the suit and also succeeded, the petitioners could have taken recourse to
Section 43 of the Transfer of Property Act, to compel their transferors (viz., the plaintiffs) to give full effect to the sale. Since the transferors did not file an appeal, the petitioners, as successors, sought the leave of the Court to file an appeal, to avail the remedy provided under
Section 43 of the Transfer of Property Act.
13. I have carefully considered the above submissions. A plain reading of Section 146 CPC, shows that it is an enabling provision. All that it says is that what can be done by a person, can always be done by another claiming under him. As a corollary, what cannot be done by a person, cannot also be done by someone claiming under him. This is on account of the fundamental principle "no one can confer a better title than what he himself has" (Nemo dat qui non habet). In the present case, the suit filed by the plaintiffs way back in the year 1991, was dismissed after contest in February 2004. Without filing any appeal, they sold the suit 'A' Schedule property to the petitioners, in April 2006. Therefore the plaintiffs are deemed to have accepted the decision rendered by the trial Court. Consequently, what they conveyed to the present petitioners, is only that to which they were lawfully entitled, as per the decision of the Civil Court. If the plaintiffs had sold the property either during the pendency of the suit or at least within the period of limitation to file an appeal, with an indication about the proceedings, then the petitioners could be taken to be persons entitled to take the battle further as in a relay race. But the petitioners purchased the property after more than two years of the judgment of the trial Court. Therefore, what was conveyed to them by the plaintiffs in the suit, was only what the plaintiffs themselves are deemed to have had by virtue of the judgment. In other words, the petitioners, who claim under the plaintiffs, are entitled only to what the plaintiffs were declared to be entitled to by the judgment.
14. The provisions of Order XXII, Rule 10 (1), may not also go to the rescue of the petitioners. It applies to cases of assignment, creation or devolution of any interest "during the pendency of a suit". There is no doubt about the fact that an appeal is a continuation of the suit. Therefore Order XXII, Rule 10, may also apply to cases of assignment, creation or devolution of any interest "during the pendency of the appeal". But what happens to cases of assignment, creation or devolution of interest, during the interregnum period, when the suit is already disposed of and an appeal is yet to be filed? In such cases, is it to be presumed that the rights of the party to the suit, (the transferor) were in a state of limbo? The phrase "during the pendency of the suit" appearing in Order XXII, Rule 10, can be presumed to include within its ambit "during the pendency of the appeal". One may even go to the extent that the phrase would include within its meaning, the period for filing an appeal. In other words, Order XXII, Rule 10 (1), may even be invoked in cases where an assignment, creation or devolution of interest takes place after the disposal of the suit but before the expiry of the period of limitation to file an appeal. This is on account of the fact that in such cases, the intention of the transferor (party to the suit) to pursue or not, his remedy of appeal, may not be borne out and hence the benefit of the presumption can be granted in favour of the transferee. But in cases where the devolution of interest takes place long after the disposal of the suit, without the judgment-debtor filing an appeal, it must be presumed that the judgment-debtor accepted the judgment and transferred only those rights that crystallised under the judgment that attained finality. Therefore Order XXII, Rule 10, is not available to such transferees, so as to unsettle settled disputes.
15. Contending that the disposal of the suit cannot deter the transferee from seeking enforcement of his rights, the learned Senior Counsel for the petitioners relied upon the decision of the Supreme Court in Raj Kumar's case {2004 (2) SCC 601}, in paragraphs-9 and 10 of which the Supreme Court held as follows:-
"9. A decree passed against the defendant is available for execution against the transferee or assignee of the defendant judgment-debtor and it does not make any difference whether such transfer or assignment has taken place after the passing of the decree or before the passing of the decree without notice or leave of the Court.
10. The law laid down by a four-Judge Bench of this Court in Saila Bala Dassi Vs. Nirmala Sundari Dassi {AIR 1958 SC 394} is apt for resolving the issue arising for decision herein. A transferee of property from the defendant during the pendency of the suit sought himself to be brought on record at the stage of appeal. The High Court dismissed the application as it was pressed only by reference to Order 22, Rule 10 CPC and it was conceded by the applicant that, not being a person who had obtained a transfer pending appeal, he was not covered within the scope of Order 22, Rule 10. In an appeal preferred by such transferee, this Court upheld the view of the High Court that a transferee prior to the filing of the appeal could not be brought on record in appeal by reference to Order 22, Rule 10 CPC. However, the Court held that an appeal is a proceeding for the purpose of Section 146 and further, the expression "claiming under" is wide enough to include cases of devolution and assignment mentioned in Order 22, Rule 10. Whoever is entitled to be but has not been brought on record under Order 22, Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code. A person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on record at the stage of the appeal can do so by reference to Section 146 CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. Their Lordships held that being a purchaser pendente lite, a person will be bound by the proceedings taken by the successful party in execution of decree and justice requires that such purchaser should be given an opportunity to protect his rights."
16. What happened in Raj Kumar's case was that the suit property was sold during the pendency of the suit and the sale deed contained a covenant that the subject matter of the sale was not involved in any litigation. After the sale, the vendors/defendants remained ex parte and allowed the suit to be decreed. On coming to know of the ex parte decree, the third party-purchaser sought to set aside the ex parte decree by invoking Order IX, Rule 13 CPC and also sought to come on record under Order XXII, Rule 10. It was contended that Order IX, Rule 13 cannot be invoked by a third party to the suit, but the said contention was rejected on the ground that in the light of Section 146 CPC, the word "he" appearing in Order IX, Rule 13, should not be construed restrictively.
17. The date of sale and the date of the ex parte decree indicated in paragraph-2 of the decision in Raj Kumar's case, make it clear that the transfer took place during the pendency of the suit. It is in the light of the above facts that the observations made in paragraphs-9 and 10 have to be construed. As a matter of fact, in paragraph-5 of the very same decision, it was made clear that a lis pendens transferee cannot seek to come on record as a matter of right and that it is in the discretion of the Court. Paragraph-5 is extracted as follows:-
"5. The doctrine of lis pendens expressed in the maxim "ut lite pendente nihil innovetur" (during a litigation nothing new should be introduced) has been statutorily incorporated in
Section 52 of the Transfer of Property Act, 1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of the law as a representative-in-interest of the judgment-debtor and held bound by the decree passed against the judgment-debtor though neither has the defendant chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him nor has the transferee chosen to come on record by taking recourse to Order 22 Rule 10 CPC. In case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 CPC confers a discretion on the Court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendencs transferee on record is not as of right but in the discretion of the Court. Though not brought on record the lis pendens transferee remains bound by the decree."
18. When even a lis pendens transferee cannot seek to come on record as a matter of right, the petitioners who purchased the property after two years of their vendors losing the battle, cannot seek to revive the cause of action that their vendors had against the defendants in the suit. Therefore the observations in paragraphs-9 and 10 of the decision in Raj Kumar's case, cannot be taken advantage of by the petitioners.
19. Coming to the contention advanced on the strength of Sections 41 and 43 of the Transfer of Property Act, it is seen that while
Section 41 is a deduction from the law of estoppel,
Section 43 is based upon the doctrine of "feeding the estoppel".
Section 41 applies to cases where there is an ostensible owner, as against a real owner and such ostensible owner transfers the property with the express or implied consent of the real owner, for a consideration. In the case on hand, that question does not arise, since there is no ostensible owner and a real owner. The case on hand is one where the plaintiffs filed a suit seeking the reliefs of declaration, mandatory injunction, permanent injunction and recovery of possession. The suit was dismissed after trial. Thereafter, the plaintiffs and one of the defendants who remained ex parte, sold the property to the present petitioners and the petitioners decided to file an appeal against the dismissal of the suit. Therefore, the necessary ingredients of
Section 41 are not present in the case on hand, since there is no ostensible owner and a real owner.
20. In so far as
Section 43 is concerned, it is based on the common law doctrine of "feeding the grant by estoppel". It is a doctrine of equity which treats that as done, which ought to be done. Even in the case on hand,
Section 43 could have arisen for application, if the plaintiffs had filed an appeal against the dismissal of their suit and succeeded in getting a decree even after selling their property to the present petitioners. But the plaintiffs did not file an appeal against the dismissal of their suit. The suit filed by the plaintiffs in O.S.No.2549 of 1991, was dismissed by a judgment and decree dated 25.2.2004. The plaintiffs did not file an appeal against the said judgment. But they sold the property in April 2006 to the present petitioners. Thus on the date of the sale, the plaintiffs' title to the property, was only as found by the judgment. However if the plaintiffs had filed an appeal and succeeded in getting a decree, even after the sale, the petitioners as purchasers, would have been entitled to the benefits of
Section 43. But unfortunately for the petitioners, their vendors viz., the plaintiffs allowed the decree to attain finality. Therefore, the occasion for invoking
Section 43 has not arisen in this case.
21. In Hardev Singh's case {2007 (2) SCC 404}, relied upon by the learned Senior Counsel for the petitioners, the Supreme Court brought out the necessary ingredients of
Section 41 and the conditions to be satisfied for seeking the benefit of
Section 43. Paragraphs-10, 11, 12, 14 and 15 of the said decision read as follows:-
"10. The ingredients of
Section 41 of the Act are:
(1) the transferor is the ostensible owner;
(2) he is so by the consent, express or implied, of the real owner;
(3) the transfer is for consideration;
(4) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.
11.
Section 43, on the other hand, embodies a "rule of feeding the estoppel" and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts thereupon and it is immaterial whether the transferor acts bona fide or fraudulently in making the representation (See Jumma Masjid Vs. Kodimaniandra Deviah {AIR 1962 SC 847}.
12. In order to get the benefit of the said provision, the conditions which must be satisfied are:
(1) the contract of transfer was made by a person who was competent to contract; and (2) the contract would be subsisting at the time when a claim for recovery of the property is made.
14. The doctrine of feeding the estoppel envisages that "where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel".
15. The principle is based on an equitable doctrine that a person who promised to perform more than he can perform must make good his contract when he acquires the power of performance. The difference between the ambit of Sections 41 and 43 of the Act is apparent. Whereas
Section 41 provides that a transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorised therefor, subject to the condition that the transferee should take reasonable care to ascertain that the transferor had power to make the transfer and to act in good faith before a benefit thereof is claimed by him.
Section 43, on the other hand, enables the transferee to whom a transferor has made a fraudulent or erroneous representation to lay hold, at his option, of any interest which the transferor may subsequently acquire in the property, unless the right of any subsequent purchaser for value without notice is in effect."
22. Thus the principle underlying
Section 43 would apply in favour of the petitioners/purchasers, only as against their vendors viz., the plaintiffs in the suit. As stated earlier, if the plaintiffs had, after selling the property to the petitioners, pursued the appellate remedy and also succeeded, the petitioners could have invoked
Section 43 against their vendors. This is in view of the obligation cast upon the vendors to pass on to the purchasers, whatever right, title or interest that they derived subsequent to the sale. But in this case, the plaintiffs/vendors did not file an appeal against the dismissal of their suit. Therefore the occasion to invoke
Section 43 did not arise.
23. Essentially, the principle underlying
Sections 41 and 43, is by way of exception to the general rule that a person cannot convey a better title than what he himself has in the property. An assignee makes use of only the rights of the assignor and is clothed only with the rights of the assignor (assignatus utitur jure auctoris) and nothing more. It is a well known rule that no one can transfer to another a right or title greater than he himself possesses, nemo plus juris in alium transferre potest quam ipse haberet. But after effecting the transfer, if the transferor acquires certain rights, that he did not possess at the time of transfer,
Section 43 comes into play so as to bind him to the covenant that he made at the time of transfer. Therefore unless the transferor's rights had enlarged subsequent to the transfer, the question of applying
Section 43 would not arise.
24. As stated earlier, the case of the petitioners is worse than that of pendente lite purchasers. It is seen from the plaint and the judgment of the trial Court that the dispute between the vendors of the petitioners and the defendants in the suit, was only with respect to a wall and a passage measuring about 3 feet 4 inches, described in Schedule 'B' to the plaint. There was no dispute about the ownership of the main property described in Schedule 'A' to the plaint. After the dismissal of the suit, the plaintiffs sold the suit 'A' Schedule property to the petitioners, without filing any appeal against the judgment of the trial Court. A period of more than two years had elapsed from the date of the judgment of the trial Court (February 2004) to the date of sale (April 2006). This is an indication to the fact that the plaintiffs accepted the verdict, reconciled themselves to the rights crystallised under the judgment and abandoned their claim. As persons who stepped into their shoes, the petitioners cannot seek to resurrect the issue, by seeking leave to file an appeal. Therefore the order of the Court below refusing to grant leave and refusing to condone the delay, is perfectly in order and does not call for any interference.
25. In view of the above, these Civil Revision Petitions fail and are dismissed. No costs.
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