RAM CHAND Vs. MALLU

JUDGEMENT

(1.) This letters patent appeal is directed against the judgment of the learned Single Judge dated August 30, 1973, in execution second appeal filed by Malu, judgment-debtor-respondent (hereinafter to be called the judgment-debtor), accepting the appeal.

(2.) The facts are quite brief and undisputed. The plaintiff-appellants, 15 in number (hereinafter to be called the decree-holders) filed a suit in 1956 for possession of a vacant piece of land measuring 146 and odd square yards in area situated opposite Harijan Mohalla in the Abadi of Village Gias Pura. Their claim regarding adverse possession was not upheld, but it was held that they had been dispossessed unauthorisedly by the defendant and as such, a decree for joint possession was passed. In first appeal, that judgment and decree was reversed and the suit was dismissed. The regular second appeal filed in the High Court was, however, allowed and the decree of the trial Court was restored on May 12, 1967. In execution proceedings, it was alleged that the judgment-debtor after decision by the High Court in the regular second appeal, had erected a house on the land, in dispute. On the other hand, the case of the judgment-debtor was that he had completed the construction after the decision in the first appeal and before the filing of the regular second appeal. The decree-holders prayed in the executing Court that the executing Court should order demolition of the house erected by the judgment-debtor. It was found by the executing Court that the judgment-debtor had erected the said building after the decision of the regular second appeal and it was ordered that the decree-holders were entitled to the delivery of possession of the site by demolition of the building. The judgment-debtor was allowed a period of 30 days within which he could remove the structure. This order of the executing Court was affirmed by the lower appellate Court. In second appeal, however, the learned Single Judge reversed the order of the Courts below and accepted the appeal. It was held that the decree was for joint possession and could only be executed under sub-rule (2) of rule 35 of Order XXI of Civil Procedure Code, (hereinafter called the Code). It is against that decision that the present letters patent appeal has been filed.

(3.) The learned counsel for the appellants, has strenuously urged that the principle of lis pendens as embodied in Section 52, Transfer of Property Act, is applicable to the facts of the present case as it was during the pendency of the regular second appeal in the suit that the building, in dispute, had been constructed on the vacant site and that in any case, the same had been constructed before the decree passed in favour of the decree-holders had been satisfied. Section 52 of the said Act is reproduced below :-