D.C. BANSAL Vs. PUSHPA DEVI
HIGH COURT OF UTTARAKHAND
Smt. Pushpa Devi and Ors.
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Alok Singh, J. -
(1.) UNDISPUTEDLY , plaintiff petitioner filed a suit for specific performance against the original defendants respondents No. 1 to 5 stating therein that defendants agreed to sell land in question in favour of the plaintiff and have executed an agreement to sell in favour of the plaintiff petitioner which was also got registered. Petitioner plaintiff moved an application under Order 39 Rule 1 and 2 of the C.P.C. before the Trial Court seeking ad interim injunction restraining the defendant not to change nature of the property by raising construction thereon and not to create third party interest during the pendency of the suit. Ad interim injunction application, so moved by the plaintiff, was rejected by the learned Trial Court vide order dated 07.04.2011. Feeling aggrieved, plaintiff petitioner preferred appeal from order No. 135 of 2011 before this Court. Appeal, so preferred by the plaintiff petitioner, was allowed by the Coordinate Bench of this Court, vide judgment dated 30.12.2011, directing the defendants respondents Nos. 1 to 5 herein not to create any third party interest on the property in dispute till disposal of the suit.
(2.) IT seems during the pendency of the appeal, defendant Nos. 1 to 5 created third party interest in favour of other respondents. Other respondents thereafter started raising construction on the property in question, therefore, plaintiff moved another application under Section 151 C.P.C. before the learned Trial Court restraining the subsequent purchaser not to raise any construction on the property in dispute till the disposal of the suit. Learned Trial Court observed that any construction made by the subsequent purchaser shall be subject to the final decision in a suit for specific performance and further observed that subsequent purchasers are bonafide purchasers. Aggrieved by the said order, plaintiff petitioner has preferred this petition under Article 227 of the Constitution of India. Learned counsel for the petitioner vehemently argued that learned Trial Court was wrong in observing that subsequent purchasers are bonafide purchasers. He further submitted that in case constructions are raised, a plea can be taken by the subsequent purchasers (defendants) under Section 20(4) of the Specific Relief Act pleading the hardships. Therefore, defendants should not be permitted to raise construction and to change the nature of the property in dispute. It goes without saying that during the pendency of civil suit for specific performance or involving the question of title, no transfer can be made without permission of the Court in view of principle of lis pendens and any transfer made during the pendency of the suit shall be hit by principle of lis pendens and subsequent purchaser shall be bound by the judgment passed in a suit. As far as the observation of the Trial Court that subsequent purchasers are bonafide purchasers, same is prima -facie opinion of the Trial Court. It is still open to the plaintiff to argue before the Trial Court that transferee, during the pendency of civil suit, cannot be treated as bonafide transferee in view of settled principle of law that transfer made is hit by principle of lis pendens. If such a plea is raised, learned Trial Court should decide the same in accordance with law without being prejudiced by the observation made in the order impugned herein. It also goes without saying that any construction made during the pendency of the suit shall always be subject to the final outcome of the suit and in case suit for specific performance is decreed defendants shall be at liberty to remove malwa from the spot. In view of the above clarification, no interference is called for in the impugned order. Therefore, present petition stands disposed of accordingly.;
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