This second appeal is directed against the order dated 21.7.2018 passed by District Judge, Meerut, whereby Civil Appeal No. 155 of 2018 filed by the present appellants against the judgment and order dated 11.5.2018 of learned Additional Civil Judge, Senior Division, Court no. 6, Meerut passed in Miscellaneous Case No. 52 of 2005 under Order 21 rule 97 CPC has been dismissed.
Heard learned counsel for the appellants and learned counsel for caveator/respondents on the point of admission and perused the record.
The facts giving rise to the dispute between the parties are that the decree holder Omwati (respondent no. 1 in this appeal) had filed Original Suit No. 780 of 1991, for the relief of specific performance of contract entered into between her and Ranjeet Singh, (respondent no.2 in this appeal) on 3.8.1981. Later on, she impleaded one Anant Ram also, in the Original Suit, who was earlier the tenant of Ranjeet Singh and to whom later on, Ranjeet Singh had sold the disputed property (Respondent nos. 3 to 7 in this appeal are legal heirs of Anant Ram).
The Original Suit No. 780 of 1991 for specific performance, was decreed in favour of Omwati by the judgment dated 29.9.1996. Civil Appeal No. 66 of 1996 was filed by the defendant against the jugdment dated 29.9.1996, which was dismissed vide judgment dated 8.10.1999. During the pendency of aforesaid Appeal No. 66 of 1996, Anant Ram, with whom Omwati (decree holder) was contesting the appeal, sold the disputed property (subject matter of the agreement to sale) to the applicants/appellants vide sale deed dated 10.6.1997. On the strength of the aforesaid sale deed dated 10.6.1997, the applicants/appellants filed an application under Order 1 Rule 10 CPC for their impleadment in the appeal but their application was rejected vide order dated 25.5.1999 holding that the sale deed executed by Anant Ram in favour of the applicants/appellants was barred/hit by the principle of "lis pendence" embodied in Section 52 of Transfer of Property Act 1882. After the dismissal of Civil Appeal, the decree holder Omwati, initiated execution proceeding which was registered as Execution Case No. 16 of 1999. The appellants moved an application under Order 21 Rule 97 CPC in the execution case which was dismissed by the executing court, i.e. Civil Judge, Senior Division by the order dated 11.5.2018, against which the appellants preferred Civil Appeal No. 155 of 2018 before learned District Judge, Meerut under Order 21 Rule 103 CPC, which was also dismissed by the impugned order dated 21.7.2018 holding that the findings of the learned Executing Court are based on proper appreciation and analysis of the facts and evidence available on the file of the miscellaneous case and therefore, deserve to be confirmed.
From a perusal of aforesaid facts, it is clearly evident that the concurrent findings of facts have been recorded by both the courts below. The legal position is well settled that the High Court should not interfere in the concurrent findings recorded by the courts below.
A perusal of the record shows that admittedly, Anant Ram had sold the property (which was subject matter of agreement to sale) to the applicants/appellants on 10.6.1997. The Civil Appeal No. 66 of 1996 has been decided on 8.10.99, meaning thereby that the disputed property has been sold during the pendency of Civil Appeal No. 66/1996, which is not permissible under law in wake of the bar created by the doctrine of lis pendence and also in view of Order 21 Rule 102 CPC.
(1) Order 21 Rule 102 of Civil Procedure Code runs as under:
Rule not applicable to transferee pendente-lite.-
"Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by 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."
(2) A bare perusal of the above cited provision leaves no room for any doubt that any pendente-lite transferee of the subject matter of the decree will have no right and will not be entitled to offer any resistance or obstruction in delivery of possession to the decree-holder of the subject matter of the decree, in execution of the decree. Accordingly he would not be entitled to file objections under 21 Rule 97 of the Civil Procedure Code. A further perusal of the provisions contained in Rule 102 would make it clear that no such defence would be available to such pendente-lite transfer that he was a bona-fide purchaser with consideration and without notice.
Rule 102 of Order 21 of the Civil Procedure Code, need to be necessarily read with the provision of Section 52 of The Transfer of Property Act, 1882. For a ready reference Section 52 of The Transfer of Property Act, 1882 is re-produced hereinbelow.
Transfer of property pending suit relating thereto.-
"During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right so immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
"The phrase is not defined in the Code. The word "substantial", as qualifying question of law, means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substances or consequence, or academic merely."
A Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, AIR 1951 Madras 969, considered this term and observed:
"when a question of law is fairly arguable, where there is room for difference of opinion or where the Court thought it necessary to deal with that question at some length and discuss an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by decision of highest Court or if general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of case, it could not be a substantial question of law."
The above observations were affirmed and concurred by a Constitution Bench of Hon'ble Supreme Court in Sir Chunilal Mehta and Sons Ltd. Vs. The Century Spinning and Manufacturing Company Ltd. AIR 1962 SC 1314. Referring to above authorities, the Court in Santosh Hazari (supra) said:
"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
Moreso, there are concurrent findings of facts by both the courts below. The Hon'ble Apex Court in catena of judgments has laid down the law that the concurrent findings of fact recorded by two courts below should not be interfered by the High Court in Second Appeal, unless and until the findings are perverse.
In Shivah Balram Haibatti Vs. Avinash Maruthi Pawar (2018)11 SCC 652 the Apex Court has held as under:-
"...... These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law."
In a recent case of Narendra and others Vs. Ajabrao S/o Narayan Katare (dead) through legal representatives, (2018) 11 SCC 564 the Hon'ble Apex Court held as under:-
"...interference in second appeal with finding of fact is permissible where such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or where that finding is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law permitting interference in Second Appeal."
In one more recent case Dalip Singh Vs. Bhupinder Kaur, (2018) 3 SCC 677 the Hon'ble Apex Court held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible.
Both the courts below have recorded concurrent findings of fact with regard to the issues involved in the present case. There does not appear any perversity or illegality in the findings recorded by both the courts below on the facts of the case.
In view of the above cited legal position and in absence of any arguable substantial question of law, this Second Appeal is liable to be dismissed at the admission stage itself and is accordingly dismissed.
Order Date :- 26.9.2018 Harshita