Full Judgement
T. Ravi & Another Vs. B. Chinna Narasimha & Ors. etc.
[Civil Appeal Nos.4731-4732 of 2010]
[Civil Appeal Nos.4733 of 2010, 4734-35 of 2010, 4736 of 2010, 4837-38 of 2010, 6536-37 of 2010, 4276-77 of 2011]
[Civil Appeal No. 4319-20 of 2017 @ SLP (C) Nos.23864-23865 of 2011]
[Civil Appeal Nos.1196-97 of 2012
[Civil Appeal Nos.7105-06 of 2010]
ARUN MISHRA, J.
1. Leave granted in S.L.P. (C) Nos. 23864-23865 of 2011.
2. In the appeals, the final decree which has been drawn up in a partition suit with respect to item No.6 of Schedule 'B' pertaining to land admeasuring 68 acres 10 guntas comprised in survey Nos. 63, 68, 69 and 70 situated at village Madhapur, District Ranga Reddy, Hyderabad is in question. 3. The property was matruka property of Late Mohd. Nawab Jung who passed away on 25.4.1935. Civil Suit No.82/1935 was instituted by Mohd. Hashim Ali Khan, son of Mohd. Nawab, in Darul Qaza City Court, Hyderabad, for partition of matruka properties of Late Nawab comprised in Schedules 'A', 'B' and 'C'.
The suit was contested, inter alia, by defendant No. 1. Darul Qaza Court was abolished in the year 1951. On abolition of original jurisdiction of the High Court, the case was assigned to the City Civil Court. It appears that later on as the file was not received by the City Civil Court from the Custodian, it passed order dated 8.1.1955 to the effect that the file of the case was not yet received, the plaintiff was also absent, as such the case be closed for the time being and be revived only on receipt of the file and on an application to be filed by the plaintiff.
The city civil court understood the order to be of dismissal of suit in default. The plaintiff moved an application for revival of the suit. The city civil court directed the plaintiff vide order dated 1.12.1955 to deposit Rs.50 towards costs and if the costs were not paid by 15.12.1955, the suit shall stand dismissed. The plaintiff could not pay the cost within the stipulated time and prayed for extension of time which was not extended.
The order was questioned by the plaintiff in the High Court by way of filing an appeal. The High Court decided the appeal vide order dated 23.1.1962 and held that vide order dated 8.1.1955, the suit was not dismissed for default. It was an order adjourning the suit with a direction that it may be revived only on receipt of the file from the Custodian, therefore, there was no necessity for the plaintiff to file an application under Order 9 Rule 9 CPC for restoration.
Thus the trial court had no jurisdiction to direct the plaintiff vide order dated 1.12.1955 to pay the cost of Rs.50 to the defendants on or before 15.12.1955 as a condition precedent. The appeal was allowed and the order dated 1.12.1955 was set aside. The order passed by the High Court attained finality. Thereafter, the suit was re-numbered as Civil Suit No.42/1962 in the city civil court. Hamid Ali Khan, defendant No.1 sold Item No.6 of Schedule 'B' property in area 68 acres 10 guntas on 23.11.1959 to Bala Mallaiah vide registered sale deed. He sold the share inherited by other co-heirs also to Bala Mallaiah.
It was found in the preliminary decree for partition dated 24.11.1970 that defendant No.1, Hamid Ali Khan, was having only 14/104th share in matruka properties. The plaintiff, and defendant Nos.2, 3 and 12 were also having 14/104th share each. Defendant Nos.4 to 6, daughters of Nawab had 7/104th share in matruka properties. Nurunnisa Begum, widow of Late Nawab, defendant No.7 was entitled to 13/104th share in matruka properties.
4. Aggrieved by the preliminary decree for partition determining the shares to the aforesaid extent, the plaintiff and legal heirs of defendant No.1 i.e. defendant Nos.23 to 25 and defendant No.27 preferred appeal in the year 1972 before the High Court. Cross-objections were also preferred by defendant No.6 - Shareefunnisa Begum. The High Court dismissed the appeals and allowed the cross-objections of defendant No.6 with respect to item No.4 of Schedule 'A' property. The plaintiff questioned the decision by way of filing LPA No.199/1977 and the same was dismissed vide order dated 12.11.1976, the decision with respect to preliminary decree has attained finality.
5. Defendant No.25 - daughter of defendant No.1 - filed IA No.854/1984 for passing a final decree in terms of the preliminary decree passed in the partition suit. During the pendency of the final decree proceedings, an Advocate-Commissioner was appointed to divide the suit schedule land by metes and bounds as per the preliminary decree passed on 24.11.1970 for which an application (IA No.31/1989) was filed on 16.1.1989. He submitted a report in December, 1993 in respect of item No.6 of Schedule 'B' of preliminary decree dated 24.11.1970.
The Advocate-Commissioner divided the suit schedule property on 28.11.1993. He also noticed that third parties were in possession of the land and he had also seen a signboard of Surya Enclave Developers. The sale transaction took place during the pendency of the preliminary decree proceedings on 23.11.1959. The LRs. of Bala Mallaiah were entitled to the share of Hamid Ali Khan, defendant No.1. On 6.10.1997, pending final decree proceedings, plaintiff and defendant Nos.4 and 14 to 17 i.e. LRs. of defendant No.5 assigned their interest in item No. 6 of plaint 'B' schedule properties in favour of D.A.P. Containers Pvt. Ltd. The assignees were brought on record as defendant Nos.99 to 112 in the final decree proceedings vide order dated 22.4.1999 passed by the Senior Civil Judge, City Civil Court, Hyderabad.
6. On 16.7.2001, L.Rs. of Bala Mallaiah filed IA No.978/2001 and sought impleadment to contest the matter in respect of item No.6 of plaint 'B' Schedule properties. Vide order dated 14.10.2003, LRs. of Bala Mallaiah were impleaded. On 2.4.2004, subsequent purchasers of the disputed property filed an application (IA No. 544/2004) under Order VII Rule 11 CPC for rejection of the final decree proceedings. It was resisted by appellants and rejected by the court vide order dated 5.7.2005 and ultimately the final decree came to be passed on 7.7.2005 in terms of the preliminary decree dated 24.11.1970. In the final decree proceedings initiated by IA No.854/1984, share of each heir was recognized in the disputed property being Item No.6 of Schedule 'B' plaint.
The rights of Hamid Ali, vendor of Bala Mallaiah and subsequent purchaser's share was recognized to the extent of 14/104th share. Rights of the assignees/appellants were also recognized in terms of the assignment deed and separate possession was given to them. The final decree was questioned in Appeal Nos.385 and 386 of 2006 which were filed by LRs. of Bala Mallaiah and purchasers from them with respect to item No.6 of plaint 'B' schedule property. The appeals were dismissed on 27.4.2007. Aggrieved thereby, Second Appeal No.410/2008 was preferred. Appeal had been allowed by the impugned judgment and decree dated 15.4.2010.
7. Before the final decree could be passed in the case, civil suit being OS No.294/1993 was filed for perpetual injunction by L.Rs. of Bala Mallaiah against Hashim Ali Khan and others on the basis of sale deed dated 23.11.1959. The suit was dismissed by Junior Civil Judge, Hyderabad West & South vide judgment and decree dated 8.6.1998. It was held that the plaintiffs were not entitled to claim adverse possession over the suit schedule property and that their purchase and possession was subject to the result of the partition suit, O.S. No.42/1962.
It was also held that the possession of the plaintiff could not be said to be rightful possession and they could claim only to the extent of their vendor's share and not over the entire property, and thus, they were not entitled to the relief of injunction against the defendants. As against the judgment and decree of the trial court, an appeal was preferred in the Court of Additional District Judge, NTR Nagar, Hyderabad and the same was dismissed on 20.7.2000. Second Appeal No.465/2001 preferred against the same in the High Court was dismissed vide judgment and order dated 26.9.2001.
8. Land grabbing proceedings under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 initiated by the L.Rs. of Bala Mallaiah were dismissed by the Special Court in LGC No.148/1996 vide order dated 13.5.1997. It was held that the application was not maintainable. The court took cognizance of the preliminary decree proceedings, appointment of the Commissioner and also held that it was not open to contend that the doctrine of lis pendens had no application. The application was ultimately dismissed. The order was questioned by way of filing W.P. No.15577/2001 in the High Court of Andhra Pradesh. The High Court simply observed that the observations made by the special court would not come in the way of the petitioners to work out their rights in accordance with law in the partition suit, that is to say in the final decree proceedings.
9. There was yet another litigation initiated by Boddam Narsimha, nephew of Bala Mallaiah. On 16.12.1998 an application was filed before the Tribunal, Ranga Reddy District, seeking declaration of protected tenancy under section 37A of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950. The same was dismissed vide order dated 24.8.1999. The appeal preferred to the Joint Collector was also dismissed on 13.3.2000. CRP No.2229/2000 before the High Court of Judicature at Andhra Pradesh was dismissed by the Single Judge vide order dated 16.4.2001. Aggrieved thereby, C.A. No.3429/2002 - Boddam Narsimha v. Hasan Ali Khan (dead) by LRs. & Ors. - (2007) 11 SCC 410 was filed, and the same was also dismissed by this Court.
10. The High Court while passing the impugned judgment and decree under appeal has held that the sale deed dated 23.11.1959 was not hit by the principle of lis pendens under section 52 of the Transfer of Property Act . During the pendency of the suit, defendant No.1 had leased out the land to Bala Mallaiah and later on had alienated the same on 23.11.1959. The decision of this Court in Boddam Narsimha (supra) had been relied upon to hold that Bala Mallaiah was declared as Pattedar, that would bind all the parties.
It was necessary for the plaintiff to take steps to get the sale deed dated 23.11.1959 cancelled in accordance with law. It has also been held that as the sale by defendant No. 1 to Bala Mallaiah was not effected during lis pendens, in the absence of challenge to the sale deed and due to non-impleadment in the suit, by virtue of adverse possession, title has been perfected. At the same time, the High Court has held that till the final decree is passed the suit is said to be pending and the preliminary decree only determines the rights of the parties. Thus, the final decree which has been passed by the trial court with respect to item No.6 of plaint 'B' schedule property was impracticable.
11. It was submitted by learned senior counsel appearing on behalf of the appellants that in fact there was no dismissal of the suit in 1955 as held by the High Court in the year 1962. Thus, the sale deed dated 23.11.1959 was clearly during lis pendens. The suit was filed in the year 1935 and the preliminary decree for partition was passed in the year 1970 and final decree has been passed in 2005. It was further contended that it was not open to defendant No.1 to sell more than his share. He had no authority to sell the land belonging to the share of other co-heirs as Muslims inherit the property as tenants-in-common and not as joint tenants.
It was further submitted that there was no necessity of questioning the sale deed as it was subject to the provisions of lis pendens contained in section 52 of T.P. Act. The High Court has gravely erred in law in holding that the title had been perfected by virtue of adverse possession. It was also contended that this Court in Boddam Narsimha (supra) did not adjudicate the question of title of Bala Mallaiah. Thus, the High Court has gravely erred in law in reversing the judgment and decree passed by the trial court as affirmed by the first appellate court. The High Court has also erred in law in holding that it was impracticable to pass the decree with respect to item No.6 of schedule 'B' property.
Learned senior counsel appearing on behalf of the appellants submitted that the decision in Civil Suit No.289/1993 for permanent injunction which was based upon title, operates as res judicata on various issues. The plea of estoppel has also been raised on behalf of the appellants. It was further submitted that the plea of equity with respect to partition of property was not available to Bala Mallaiah or to the purchasers from him. It was also submitted on behalf of the appellants that the final decree proceedings qua other item No.2 of schedule 'B' property have attained finality in which the order passed by the Division Bench of the High Court of Andhra Pradesh in LPA No.104/1997 has been affirmed by this Court by a speaking order passed in SLP [C] No.3558/1999 decided on 1.10.1999. Thus, the decision of this Court is binding upon the parties and the findings recorded by the High Court therein on questions of law in its judgment have attained finality. Thus, the High Court has erred in law in holding otherwise.
12. Learned senior counsel appearing on behalf of respondents have submitted that the sale deed dated 23.11.1959 in favour of Bala Mallaiah is valid and binding as disputed land could have been alienated even during the pendency of the suit for partition. It was strenuously submitted on behalf of the respondents that the sale in question could not be said to be during lis pendens as the suit in fact stood dismissed in 1955 and was later on revived by the High Court in 1962. The decision of this Court in Boddam Narsimha (supra) is binding in which foundational basis for the judgment was the fact that Bala Mallaiah was a pattedar of the land, and it was necessary to avoid the sale deed in question by getting it cancelled in accordance with law within the period of limitation and that by virtue of adverse possession, the right and interest had been perfected by the purchasers.
It was also submitted that even otherwise, the equities available to a purchaser ought to have been applied in the present case as the principle of equitable adjustment is applicable to Mohammedan Law and the disputed property ought to have been allotted to the share of defendant No.1 in order to adjust the equities without affecting the rights of other co-heirs. It was further urged that in view of the decision in Civil Suit No. 294/1993, various questions were left open to be agitated in the final decree proceedings.
It was also submitted that in the judgment dated 24.11.1970 with regard to preliminary decree in para 93, purchasers were given the liberty to raise the question of equity in the final decree proceedings. Thus, the High Court has rightly interfered with the final decree with respect to the disputed property. Even if section 52 of the T.P. Act is applicable, the transactions hit by lis pendens are not void. Bala Mallaiah had acquired the rights of a pattedar, no decree could have been passed in favour of L.Rs. of Late Nawab Jung. Considering the conduct of the appellants, no case for interference is made out. They cannot approbate and reprobate.
13. Following questions arise for consideration under the appeals:-
Whether the decision in Original Suit No.294 of 1993 operates as res judicata, if yes to what extent?
Whether the sale deed dated 23.11.1959 executed by defendant no.1 in favour of Bala Mallaiah is hit by doctrine of lis pendens?
Whether section 52 of T.P. Act renders a transfer pendente lite void ?
What is the effect of preliminary decree for partition and the extent to which it is binding ?
Whether it was necessary to file a suit for cancellation of sale deed dated 23.11.1959?
Whether Bala Mallaiah, his heirs and purchasers had perfected their right, title and interest by virtue of adverse possession?
Whether under the Muslim law, defendant no.1 being a co-sharer could have alienated the share of other co-sharers in the disputed property?
Whether the purchaser has a right to claim equity for allotment of Item No.6 of Schedule 'B' property in final decree proceedings in suit for partition? If yes, to what extent ?
Whether sale was for legal necessity, and thus binding ?
What is the effect of proceedings under the Tenancy Act, 1950 ?
What is the effect of decision of this Court and High Court with respect to final decree proceedings in Item No.2 of Schedule 'B' property ?
Whether there is waiver of right by appellants ?
Whether appellants are guilty of delay or laches ? What is the effect of the decision of the Court under the Urban Land Ceiling Act?
(i) In re : whether the decision in Original Suit No.294 of 1993 operates as res judicata, if yes, to what extent?
14. Twelve LRs. of Bala Mallaiah filed the aforesaid suit against Mohd. Hasim Ali Khan and 13 other heirs of Late Nawab Jung. The suit was with respect to Item No.6 of Schedule 'B' that is with respect to survey Nos.63 and 68 to 70 comprised in area 68 acres 10 guntas situated at village Madhapur in erstwhile West Taluk, Hyderabad district now known as Serilingampally Mandal.
15. It was averred in the plaint that Hamid Ali Khan had sold the land to Bala Mallaiah by sale deed dated 23.11.1959 after obtaining due permission under the Andhra Pradesh Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as 'the Act of 1950'). Though the land was purchased in the name of Bala Mallaiah but it was his joint family property along with two brothers, namely, Komaraiah and Agaiah. Bala Mallaiah died in the year 1975. His undivided 1/3rd share devolved upon plaintiff Nos.1 and 2. Plaintiff Nos.3 and 4 are sons of plaintiff No.1 and plaintiff No.5 is the son of plaintiff No.2. Komaraiah, brother of Bala Mallaiah also died and his 1/3rd interest had devolved upon plaintiff Nos.6 and 7. Agaiah - plaintiff No.8 is the brother of Bala Mallaiah and plaintiff Nos.9 to 12 are his sons.
It was further averred that the plaintiff entered into a developer's agreement with respect to residential plots with M/s. Surya Land Developers & Promoters with respect to 13 acres 17 guntas forming part of survey No.68 and 12 acres 31 guntas in survey No.69. Another agreement was entered into with Bapuji Estates with respect to 6 acres of area out of survey No.69. Plots comprised in survey Nos.68 & 69 were also sold to various persons. Survey No.69 was also sold in entirety.
A preliminary decree for partition was passed in O.S. No. 42/1962 in the year 1970 which comprised of disputed property also. Bala Mallaiah or the plaintiffs and other heirs were not impleaded as parties in the aforesaid suit for partition and under the guise of decree the defendants were claiming ownership and threatening to dispossess the plaintiffs forcibly. In the suit for partition, during final decree proceedings, an Advocate- Commissioner had been appointed who visited the disputed property on 15.8.1993. Hence, suit No.294/1993 was filed for perpetual injunction.
16. The defendants in their written statement contended that the suit was not maintainable. The preliminary decree for partition dated 24.11.1970 was binding in which shares of respective parties had been declared. Suit for partition was filed in the year 1935. The sale transaction between Hamid Ali Khan and Bala Mallaiah was void and conferred no right, title or interest upon the plaintiffs. Plaintiffs had no right to interfere in the shares allotted to other co-heirs in the suit for partition. The property in question was ancestral property. The findings recorded in preliminary decree against defendant No.1, vendor of Bala Mallaiah are binding upon the plaintiffs, and as such they are not entitled for any relief.
17. It is apparent that the suit for permanent injunction was filed by the plaintiffs on the basis of sale deed dated 23.11.1959 in which it was also submitted that it was not during lis pendens. Plea of adverse possession had also been raised which was negatived. They claimed injunction on the basis of possession under the sale deed dated 23.11.1959. The trial court in the aforesaid civil suit gave the following findings against the plaintiff :
(i) that the purchase was hit by doctrine of lis pendens so that they are not entitled for relief of injunction against the defendants who are co-sharers as per the preliminary decree dated 24.11.1970 passed in the partition suit;
(ii) it was also held that the possession of the plaintiff could not be said to be a rightful possession. It is not open to the plaintiff to claim right on the basis of sale deed on the ground that they were not parties to the partition suit. It was also held that whatever their vendors would get in the suit for partition, to that extent they would be entitled to and they could not claim rights over the entire property;
(iii) the plea of adverse possession was also negatived by the trial court on the ground that the purchase was during lis pendens and there was no pleading or evidence regarding adverse possession.
18. The judgment was affirmed in the first appeal vide judgment and decree dated 8.6.1988 passed by the Court of II Additional District Judge, NTR Nagar, Hyderabad in A.S. No.72/1998. It was held that the sale deed was hit by doctrine of lis pendens. The first appellate court also held that the vendor of Bala Mallaiah namely, Hamid Ali Khan, defendant 1, had no right to sell the entire dispute property to Bala Malliah as absolute owner.
The plaintiffs could claim right over the property to the extent of vendor of Bala Mallaiah. It was also held that the land grabbing case LGC No.148/1996 was dismissed which order had attained finality and barred the present suit. Injunction could not be granted in view of the preliminary decree for partition which had been passed as it would tantamount to granting injunction against the decree-holders for enforcing their lawful decree.
Being a purchaser lis pendens, it is open to the plaintiff to approach the court where the final decree proceedings were pending to work out available equity to the extent of vendor's share. Against the said decision in first appeal, Second Appeal No.465/2011 was filed in the High Court of Andhra Pradesh at Hyderabad which was dismissed in limine vide order dated 26.9.2011 as no substantial question of law was found involved in the appeal. Judgment and decrees of courts below were thus affirmed.
19. In view of the categorical findings recorded by the trial court and first appellate court it is apparent that the sale deed dated 23.11.1959 was hit by doctrine of lis pendens and secondly on the basis of the said sale deed, L.Rs. of Bala Mallaiah could have claimed only to the extent of the share of his vendor and not the entire land, i.e. only to the extent of 14/104th share of defendant No.1.
20. With respect to effect of suit for permanent injunction based upon title, effect of negativing title has been considered by this Court. In Sajjadanashin Sayed Md. B.E. Edr. (D) by LRs. v. Musa Dadabhai Ummer & Ors. (2000) 3 SCC 350, it has been held : "24. Before parting with this point, we would like to refer to two more rulings. In Sulochana Amma v. Narayanan Nair (1994) 2 SCC 14 this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the Madras High Court, in Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari AIR 1965 Madras 355 held (see para 8 therein) that the previous suit was only for injunction relating to the crops. Maybe, the question of title was decided, though not raised in the plaint.
In the latter suit on title, the finding in the earlier suit on title would not be res judicata as the earlier suit was concerned only with a possessory right. These two decisions, in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. In the first case decided by this Court, it is to be assumed that the tests above-referred to were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied.
As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735, p. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. It is stated: "Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title."
25. We have gone into the above aspects in some detail so that when a question arises before the Courts as to whether an issue was earlier decided only incidentally or collaterally, the Courts could deal with the question as a matter of legal principle rather than on vague grounds. Point 1 is decided accordingly."
(emphasis added by us)
In Commissioner of Endowments & Ors. v. Vittal Rao & Ors. (2005) 4 SCC 120, it has been held thus : "28. In support of his submission, the learned counsel for Respondent 1 contended that as long as an issue arises substantially in a litigation irrespective of the fact whether or not a formal issue has been framed or a formal relief has been claimed, a finding on the said issue would operate as res judicata, strongly relied on the decision of this Court in Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer (supra). Paras 18 and 19 of the said judgment read : (SCC pp.359-60)
"18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says: a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter 'directly and substantially' in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was 'directly and substantially in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case.
The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Isher Singh v. Sarwan Singh AIR 1965 SC 948 and Syed Mohd. Salie Labbai v. Mohd. Hanifa (1976) 4 SCC 780). We are of the view that the above summary in Mulla is a correct statement of the law.
19. We have here to advert to another principle of caution referred to by Mulla (p. 105): 'It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision.' "
(emphasis in original and supplied)
29. In the light of what is stated above, in the case on hand, in our view, it was necessary for the Court in the earlier round of litigation to decide the nature and scope of gift deed Ext. A-1. Accordingly, the courts decided that the gift made in favour of ancestors of Respondent 1 of the land was absolute and it was not an endowment for a public or charitable purpose. On the facts of the case, it is clear that though an issue was not formally framed, the issue was material and essential for the decision of the case in the earlier proceeding. Hence, the bar of res judicata applies to the facts of the present case."
21. Reliance has been placed by learned senior counsel for the respondents on a decision in Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs. & Ors. (2008) 4 SCC 594 wherein the Court had summarized the conclusions thus: :
"21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar v. Alagammal (2005) 6 SCC 202. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
22. It was submitted on behalf of respondents that the findings in O.S. No.294/1993 do not operate as res judicata as it was left ultimately to raise the objections in the final decree proceedings. We are unable to accept the aforesaid submission as there was clear inability to grant injunction and the submission of the plaintiffs that they were having title on entire land on the basis of sale deed dated 23.11.1959, had been negatived. It was found that Bala Mallaiah could have purchased only the share of his vendor Hamid Ali and not the entire disputed property and the purchase was affected by lis pendens.
We are of the considered opinion that the finding with respect to purchase being made during lis pendens had attained finality and was not open to question in the present proceedings. Besides, the validity of the sale deed to the extent of the share of the vendor which was sought to be re-agitated in the final decree proceedings, was also not open to be raised in view of clear findings recorded in the suit of 1993. Though we have held so, however nothing turns on the aforesaid finding as to res judicata as we propose to examine both aspects on merits afresh, in view of the conclusions which we propose to record hereinafter.
(ii) In re : Whether the sale deed dated 23.11.1959 executed by defendant No.1 in favour of Bala Mallaiah is hit by doctrine of lis pendens?
23. In the instant case, a suit for partition was filed in the year 1935. On abolition of Darul Qaza Court in 1951 the case was transferred to the High Court. On abolition of original jurisdiction of the High Court, file was sent to the city civil court. It appears that when the file from Custodian did not reach the city civil court, hence order dated 8.1.1955 was passed to the following effect : 8.1.1955 - "This file summoned by the Custodian is not yet received. As the plaintiff too is absent and the file not yet received the case be closed. It may be revived only on the receipt of the file and the application of the plaintiff."
It is apparent from the aforesaid order that it was clearly an order of keeping the case sine die to be taken up only on receipt of the file on being informed by filing an application by the plaintiff. The file was not before the court. Thus, there was no question of dismissal of the case in default nor was it so dismissed by the court. However the plaintiff laboured under wrong impression, as such filed application under Order 9 Rule 9 CPC and prayed for restoration of the suit. An order was passed on 1.12.1955 by the city civil court, restoring the suit on the basis of payment of Rs.50 as costs to be paid on or before 15.12.1955. Costs could not be deposited by the plaintiff by 15.12.1955. The prayer was made to accept the costs on 16.12.1955 by extending time under section 148 CPC.
However, the city civil court dismissed the said application. The order was questioned in the High Court in appeal filed by the plaintiff in which the Division Bench of the High Court vide order dated 5.2.1962 had held that the suit in fact was not dismissed for default on 8.1.1955 by the trial court. It was an order adjourning the suit with a direction to be revived only on the file being received from the Custodian. Therefore, there was no necessity for the plaintiff to file an application under Order 9 Rule 9 CPC. The High Court had set aside the order dated 8.1.1955 and also held that there was no jurisdiction with the city civil court to pass an order on 1.12.1955 to impose and pay costs of Rs.50.
The following order was passed in the year 1962 by the Division Bench of the High Court :
"It is clear from the order dated 8-1-55, that the suit was not dismissed for default. Virtually, it is an order adjourning the suit with a direction that it may be revived only on the receipt of the file from the Custodian. Therefore there was no necessity for the plaintiff to file the application under Or. 9, Rule 9, CPC, praying that the suit be restored to its original number after setting aside the order dated 8-1-55. The plaintiff could have merely asked the court to take up the suit and to proceed with the trial.
The learned Judge has no jurisdiction to direct the plaintiff by his order dated 1-12-55 to pay day costs viz., Rs.50/- to the defendants on or before 15-12-55 as a condition precedent. This order is clearly illegal and has to be set aside. In the result, the appeal is allowed, and the order dated 1-12-55 directing the plaintiff to pay the defendants Rs.50/- on or before 15-12-55 as a condition precedent to restraining the suit is set aside. As a consequence, the order dated 7-1-56 is vacated. Since this is a suit of 1951 which has been pending for a long time, the lower court will dispose of the same as expeditiously as possible. The contesting respondents shall pay the costs of the appellant."
24. A preliminary objection has been raised on behalf of the respondents as to very applicability of doctrine of lis pendens to Mohammedan law based upon provisions contained in section 2 of T.P. Act. Section 2 is extracted hereunder :
"2. Repeal of Acts.--Saving of certain enactments, incidents, rights, liabilities, etc. --- In the territories to which this Act extends for the time being the enactments specified in the Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect---
(a) the provisions of any enactment not hereby expressly repealed;
(b) any terms or incidents of any contract or constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force;
(c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability; or
(d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction, and nothing in the second Chapter of this Act shall be deemed to affect any rule of Muhammadan law."
No doubt about it that section 2 of T.P. Act protects rule of Mohammedan law by excluding the provisions of Chapter II containing sections 5 to 53A thereof. In our opinion, exclusion is conditional upon existence of rule of Mohammedan law in that regard, that is to say if principle/rule of Mohammedan law provides as to transfers lis pendens, the same would prevail and nothing in section 52 of T.P. Act shall be deemed to affect any such rule. However, we have not been shown any such rule of Mohammedan law containing provision as to lis pendens and thus, in the absence whereof the provisions of section 52 T.P. Act would be attracted. The submission as to non-applicability of section 52 of T.P. Act to Mohammedan law is hereby rejected.
25. It was submitted on behalf of the respondents that the sale deed had been executed after dismissal of the suit on 16.12.1955 in terms of the order dated 1.12.1955 as such doctrine of lis pendens was not attracted. Thus, it was submitted that between 15.12.1955 and 23.1.1962 no suit was pending. Reliance has been placed on a decision in Bhutnath Das & Ors. v. Sahadeb Chandra Panja AIR 1962 Cal. 485 :
"4. ... The real question, therefore, is whether in a case like this where an order has been made for the payment of certain money within a certain time for the purpose of getting specific performance and at the same time an order has also been made that if the money is not paid the suit will stand dismissed, the court retains jurisdiction. Though not without hesitation, I have reached the conclusion that in such a case it will be unrealistic and unjust to say that the court retains jurisdiction. Whether the court has retained jurisdiction or not will, in my view, depend very much on the substance of the directions given..... Where..... the court makes also an order that if the amount is not deposited within the time specified the suit will stand dismissed, I find it difficult to agree that the court retains any jurisdiction whatsoever.
6. .....the trial court lost jurisdiction in the suit as soon as it made the order directing the payment within a certain time and further directing that on failure of the deposit being made within the time limited the case should stand dismissed."
26. The decision of this Court in Vareed Jacob v. Sosamma Geevarghese & Ors. (2004) 6 SCC 378 has been relied upon in which it has been laid down thus : "18. In the case of Saranatha Ayyangar v. Muthiah Moopanar AIR 1934 Mad 49 it has been held that on restoration of the suit dismissed for default all interlocutory matters shall stand restored, unless the order of restoration says to the contrary. That as a matter of general rule on restoration of the suit dismissed for default, all interlocutory orders shall stand revived unless during the interregnum between the dismissal of the suit and restoration, there is any alienation in favour of a third party. Even the dissenting judgment of S.B. Sinha, J. had on this point noted:
62. It is also of some importance that there exists a view that an order of dismissal of a suit does not render an order of attachment void ab initio as a sale of property under order of attachment would be invalid even after the date of such sale and the order of attachment is withdrawn.
63. A converse case may arise when the property is sold after the suit is dismissed for default and before the same is restored. Is it possible to take a view that upon restoration of suit the sale of property under attachment before judgment becomes invalid? The answer to the said question must be rendered in the negative. By taking recourse to the interpretation of the provisions of the statute, the court cannot say that although such a sale shall be valid but the order of attachment shall revive. Such a conclusion by reason of a judge-made law may be an illogical one."
27. It was submitted on behalf of the appellants that the sale was subject to the doctrine of lis pendens under section 52 of the T.P. Act. It was further submitted that the said provision is clear and unambiguous and the statutory explanation to the provision makes it clear that the pendency of the suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in the court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a decree or an order and complete satisfaction of order or discharge of such order or decree has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof.
Thus, the transfer if any made in contravention of Section 52 renders it subservient to the rights of the parties in litigation so that the rights would eventually be determined in a suit. Thomson Press (India) Ltd. v. Nanak Builders and Investors Pvt. Ltd. & Ors. (2013) 5 SCC 397, has been relied on in which this Court has laid down thus : "26. It would also be worth discussing some of the relevant laws in order to appreciate the case on hand. Section 52 of the Transfer of Property Act speaks about the doctrine of lis pendens. Section 52 reads as under:
"52. 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 to 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 the 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."
It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.
27. Discussing the principles of lis pendens, the Privy Council in Gouri Dutt Maharaj v. Sk. Sukur Mohammed AIR 1948 PC 147 observed as under: (IA p. 170) "... The broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceedings. To apply any such test is to misconceive the object of the enactment and, in the view of the Board, the learned Subordinate Judge was in error in this respect in laying stress, as he did, on the fact that the agreement of 8-6-1932, had not been registered."
28. In Kedar Nath Lal v. Ganesh Ram AIR 1970 SC 1717, this Court referred the earlier decision in Samarendra Nath Sinha v. Krishna Kumar Nag AIR 1967 SC 1440 and observed: (Kedar Nath Lal case (supra), SCC p. 792, para 17) "17. ... '16. ... The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him.
This principle is well illustrated in Radhamadhub Holder v. Monohur Mookerji (1887-88) 15 IA 97 where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations. (See Nilakant Banerji v. Suresh Chunder Mullick (1884-85) 12 IA 171 and Moti Lal v. Karrab-ul-Din (1896-97) 24 IA 170)' (Samarendra Nath case (supra), AIR p. 1445, para 16)"
29. The aforesaid Section 52 of the Transfer of Property Act again came up for consideration before this Court in Rajender Singh v. Santa Singh AIR 1973 SC 2537 and Their Lordships with approval of the principles laid down in Jayaram Mudaliar v. Ayyaswami (1972) 2 SCC 200 reiterated: (Rajender Singh case (supra), SCC p. 711, para 15)
"15. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject-matter of litigation from the ambit of the court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject-matter of a litigation, to the power and jurisdiction of the court so as to prevent the object of a pending action from being defeated."
" 28. Reliance has been placed on A. Nawab John v. V.N. Subramaniyam (2012) 7 SCC 738, laying down thus : "18. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court.
"12. ... The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court." (Sanjay Verma v. Manik Roy (2006) 13 SCC 608, SCC p. 612, para 12.)"
" 29. Reliance has been placed on Sanjay Verma v. Manik Roy and Ors., (2006) 13 SCC 608, in which this Court laid down : "10. Bibi Zubaida Khatoon case (2004) 1 SCC 191 on which learned counsel for the respondents had placed reliance in fact goes against the stand of the respondents. Though a casual reading of para 9 supports the stand taken by the respondents, it is to be noted that the factual position was entirely different. In fact a cross-suit had been filed in the suit in that case. The respondents being transferees pendente lite without leave of the court cannot as of right seek impleadment in the suit which was in the instant case pending for a very long time.
In fact in para 10 of the judgment this Court has held that there is absolutely no rule that the transferee pendente lite without leave of the court should in all cases contest the pending suit. In Sarvinder Singh v. Dalip Singh (1996) 5 SCC 539 it was observed in para 6 as follows: (SCC pp. 541-42, para 6) "6. Section 52 of the Transfer of Property Act envisages that: 'During the pendency in any court having authority within the limits of India ... of any suit or proceeding which is not collusive and in which any right to 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 the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.'
It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the court. Admittedly, the authority or order of the court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit."
12. The principles specified in Section 52 of the TP Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the TP Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation.
The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject- matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court."
30. It was also submitted on behalf of the appellants that the expression in section 52 of the T.P. Act "suit or proceedings" is also applicable to the applications. An application seeking extension of time is also a proceeding within the meaning of the said provision and appeal filed is also continuation of the suit or proceedings but comes within the meaning of the proceedings. The legislative intent behind the amendment of section 52 was not only to cover the suit but also to cover appeals and proceedings and same would include all applications/appeals under the CPC. An application under Order 9 Rule 9 would also be covered within the meaning of the expression suit or other proceedings to which the doctrine of lis pendens would apply.
It was also submitted that section 52 prior to amendment prohibited transfer made during the "active prosecution" of a suit. Section 52 of the Transfer of Property Act , embodies the rule of lis pendens, which prior to its amendment only prohibited a transfer made during the "active prosecution" of a suit or a proceeding in which any right to immoveable property was directly and specifically in question. The expression "active prosecution", which existed in the section before its amendment in 1929, led to much uncertainty in the application of the rule, and caused a divergence of judicial opinion. It was felt that the standard of diligence, which would constitute "active prosecution", could not be defined with precision.
To remove this uncertainty, the law was amended in 1929, and the Amending Act XX of 1929 substituted the word "pendency" for the phrase "active prosecution"; and there can now be no difficulty in deciding whether the transfer was made during the pendency of a suit or proceeding. In Parmeshari Din v. Ram Charan & Ors. AIR 1937 PC 260, it was held : "2. It is clear that the question of the active prosecution of a suit is one of fact, but it was not suggested in either of the Courts in India that the plaintiffs had not actively prosecuted the suit, and were consequently debarred from availing themselves of the rule of lis pendens.
The learned Judges of the Court of Appeal had, therefore, no opportunity to express their opinion on this point; and their Lordships cannot entertain an objection, which depends upon a question of fact not dealt with below. Upon the record before them, there is no indication of any delay or remissness in the prosecution of the suit, for which the plaintiffs can be held responsible. Their Lordships, therefore, agree with the High Court that the transfer relied upon by the appellant cannot prejudice the rights of the decree-holders, and that he cannot resist the decree obtained by them."
The abovesaid principle of law settled in the year 1937 by the Privy Council is still valid as discerned from the latest judgment of this Court rendered in the case of Kirpal Kaur v. Jitender Pal Singh & Ors. (2015) 9 SCC 356 :
"21. The execution of the alleged gift deed by the deceased first defendant in favour of the second defendant is also hit by Section 52 of the Transfer of Property Act, 1882, as the said deed was executed during the pendency of the proceedings and before the expiry of the period of limitation for filing SLP. Further, during the pendency of these proceedings, the second defendant, who has claimed to be the alleged beneficiary of the suit Schedule "B" property on the basis of alleged gift deed should have sought leave of this Court as the donee and brought the aforesaid fact of execution of the alleged gift deed in respect of "B" schedule property by the deceased first defendant, which property has been devolved in his favour, to the notice of this Court as provided under Order 22 Rule 10 of the CPC and defended his right as required under the law as laid down by this Court in a catena of cases.
x x x x x
26. The legality of the alleged gift deed executed in favour of the second defendant by the deceased first defendant in respect of the Schedule 'B' property has been further examined by us and the same is hit by Section 52 of the Transfer of Property Act, 1882, in the light of the decision of this Court in the case of Jagan Singh v. Dhanwanti (2012) 2 SCC 628, wherein this Court has laid down the legal principle that under Section 52 of the Transfer of Property Act, 1882, the 'lis' continues so long as a final decree or order has not been obtained from the Court and a complete satisfaction thereof has not been rendered to the aggrieved party contesting the civil suit. It has been further held by this Court that it would be plainly impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail."
wherein the factum of the alleged gift deed was not made known to the Court. This has been extrapolated in the case of Jagan Singh (dead) through LRs. v. Dhanwanti & Anr. (2012) 2 SCC 628 thus : "32. The broad principle underlying Section 52 of the TP Act is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. Even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed, as held in Krishanaji Pandharinath v. Anusayabai AIR (1959) Bom 475. In that matter the respondent (original plaintiff) had filed a suit for maintenance against her husband and claimed a charge on his house.
The suit was dismissed on 15.7.1952 under Order 9 Rule 2, of the Code of Civil Procedure 1908, for non-payment of process fee. The husband sold the house immediately on 17.7.1952. The respondent applied for restoration on 29.7.1952, and the suit was restored leading to a decree for maintenance and a charge was declared on the house. The plaintiff impleaded the appellant to the darkhast as purchaser. The Appellant resisted the same by contending that the sale was affected when the suit was dismissed. Rejecting the contention the High Court held in para 4 as follows:
"..In Section 52 of the Transfer of Property Act , as it stood before it was amended by Act 20 of 1929, the expression 'active prosecution of any suit or proceeding' was used. That expression has now been omitted, and the Explanation makes it abundantly clear that the 'lis' continues so long as a final decree or order has not been obtained and complete satisfaction thereof has not been rendered. At p. 228 in Sir Dinshah Mulla's "Transfer of Property Act", 4th Edn., after referring to several authorities, the law is stated thus: "Even after the dismissal of a suit a purchaser is subject to 'lis pendens', if an appeal is afterwards filed."
If after the dismissal of a suit and before an appeal is presented, the 'lis' continues so as to prevent the defendant from transferring the property to the prejudice of the plaintiff, I fail to see any reason for holding that between the date of dismissal of the suit under Order 9 Rule 2 of the Civil Procedure Code and the date of its restoration, the 'lis' does not continue."
33. It is relevant to note that even when Section 52 of TP Act was not so amended, a Division Bench of Allahabad High Court had following to say in Moti Chand v. British India Corpn. Ltd. AIR (1932) All 210: '10, ....The provision of law which has been relied upon by the appellants is contained in Section 52, TP Act. The active prosecution in this section must be deemed to continue so long as the suit is pending in appeal, since the proceedings in the appellate court are merely continuation of those in the suit ...'(see Gobind Chunder Roy v. Guru Churn Kurmokar ILR 1988 15 Cal. 94)."
34. If such a view is not taken, 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 Explanation to this section lays down that the pendency of a suit or a proceeding shall be deemed to continue until the suit or a proceeding is disposed of by 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.
35. In the present case, it would be canvassed on behalf of the respondent and the applicant that the sale has taken place in favour of the applicant at a time when there was no stay operating against such sale, and in fact when the second appeal had not been filed. We would however, prefer to follow the dicta in Krishanaji Pandharinath AIR 1959 Bom 475 to cover the present situation under the principle of lis pendens since the sale was executed at a time when the second appeal had not been filed but which came to be filed afterwards within the period of limitation. The doctrine of lis pendens is founded in public policy and equity, and if it has to be read meaningfully such a sale as in the present case until the period of limitation for second appeal is over will have to be held as covered under Section 52 of the TP Act."
31. The doctrine of lis pendens would be applicable even to the proceedings in the nature of an appeal as has been emphasized in the case of Krishanaji Pandharinath v. Anusayabai AIR 1959 Bom 475 thus : "3. It is true that in this case the sale effected by Sidram was after the dismissal of the suit filed by Anusayabai and before the suit was restored, but the alienation being before, the final decree or order was passed and complete satisfaction or discharge of the decree was obtained, it must be regarded as pendente lite.
In s. 52 of the Transfer of Property Act , as it stood before it was amended by Act XX of 1929, the expression "active prosecution of any suit or proceeding" was used. That expression has now been omitted, and the Explanation makes it abundantly clear that the lis continues so long as a final decree or order has not been obtained and complete satisfaction thereof has not been rendered. At page 228 in Sir Dinshah Mulla's "Transfer of Property Act", 4th edn., after referring to sever
