- (1.) R. K. Mahajan, J. This is a judg ment against the decree passed by Sri S. L. Tripathi District Judge, Jaunpur in Civil Appeal No. 95 of 1981, Sri Raja Ram defendant-appellant v. Smt. Shanti Devi plaintiff-respondent, by virtue of which the appeal was dismissed. It was ordered that the plaintiff- respondent shall deposit the balance of the sale consideration (Rs. 3, 000) by 13-8-1982. Thereafter the defen dant-appellant shall execute the sale deed with respect to that plot in her favour within another one month i. e. till 13-9-1982. In default the sale deed shall be executed in favour of the plaintiff-respon dent by the Court below on behalf of the defendant-appellant. He shall deliver pos session over the plot in question to the plaintiff- respondent within 15 days of the execution of the sale deed and in default delivery over that plot shall be given to the plaintiff-respondent through Court.
(2.) THE substantial question of law involved in the appeal is whether the Lower Appellate Court was right in dis missing the application for impleadment of appellants 2 and 3 in the appeal who claimed to be transferees pendent elite on the basis of an agreement in point of time prior to the agreement which was sought to be specifically enforced in the suit giving to this second appeal. One of the points for consideration in this connection would be that in case the appellants No. 2 and 3 had succeeded in establishing that the agree ment in pursuance of which the sale-deed was executed in their favour by appellant No. 1 was in point of time prior to the agreement in favour of the respondent could the suit for specific performance of the latter agreement best ill decreed. The short facts to understand the controversy are detailed as under: Plaintiff-respondent Smt. Shanti Devi filed a suit against Sri Raja Ram for specific performance of agreement of sale dated 17-4-1974 which was unregistered. According to this the sale consideration was to be Rs. 8, 000. It was to be executed by 31-8-1976. It was with respect to plot No. 21, area. 30 decimal, situated in village Pakari, Parg, Mungra of district Jaunpur. Defendant-appellant raised a plea that Smt. Shanti Devi obtained his signatures on a few stamp papers by administering some tablets in a cup of tea. The Lower Court decreed the suit. It appears that the respondent-appellant Kamal Kumar and Amarnath filed an application to the effect that there is a sale deed of the land in suit executed by Sri Raja Ram and as such they should be brought on the record. The Lower Appellate Court was of the view that the sale deed has come into existence during the pendency of appeal and as such it is not binding on the respondent plain-tiff. The Lower Appellate Court was of the view that the first agreement in point of time i. e. , 1974 has been proved and the Lower Court finding is based on well reasoned appreciation of evidence. Feel ing aggrieved with the above the appeal was filed. Mr. R. N. Singh has submitted that opportunity should have been given by the lower Appellate Court to the appellants to prove their case. He further submits that without affording any opportunity, they have been prejudiced any they could not prove their case. Sri S. N. Srivastava Coun sel for the respondent submitted that the decree was passed by lower Court on 16-2-1979 and the sale-deed was executed during the pendency of the appeal. It is further submitted that there is no whisper about the sale deed in favour of appellant Nos. 2 and 3 in the written statement filed by defendant-appellant Raja Ram and principle outspending as contained under Section 52 of the Transfer Property Act is attracted.
(3.) AFTER hearing learned Counsel for the parties, I am of the view that the second appeal lacks force for the following reasonings. The sale-deed was executed during the pendency of the appeal in col lusion with original vendor who wanted to frustrate the right of respondent Smt. Shanti Devi. This is not permissible under law when a concluded contract is existing between Smt. Shanti Devi and Sri Raja Ram. I fail to understand how it would help the appellant Nos. 2 and 3 in giving oppor tunity when they did not file suit for specific performance of contract, if there was any oral agreement or understanding earlier. If there was none then sale ex ecuted in favour of Smt. Shanti Devi is subject to the right under Section 52 of Transfer Property Act. The second sale if any would be subject to the rights of the parties in the suit. Ruling has been quoted by the learned Counsel for the respondent AIR 1978 All 318, Smt. Ram Peary and others, Appellants v. Gauri and others, respondents. It was observed that it may be that the subsequent transferee is entirely ignorant of any right on the part of the contractor and also of the pendency, of the suit filed against the vendor by such con tractor, yet as the transfer is made to him by the vendor after the institution of the suit of the contractor and, while it is pending, the subsequent purchaser cannot set up against the contractor any right from which his vendor set up against the con tractor any right from which his vendor is excluded by the lecree. The effect of the doctrine of lispendens is not to annual the conveyance but only to render it subser vient to the rights of the parties in the litigation. The conveyance in favour of the subsequent purchaser thus yields to the adjudication of the rights obtained by the contractor, in the consequence of a decree obtained against the vendor in a suit for specific performance of the contract. The subsequent transferee, even though he has obtained the transfer without notice of the original contract cannot set up against the plaintiff-contractor any right, for it would defeat the rule of Us pendens which is founded upon public policy. Therefore, Section 52 is not subject to Section 19 (b) of the Specific Relief Act, AIR 1967 SC 1440 and 1948ia 165-relied on. So in view of this discussion and principle laid down in the ruling I do not see any force in substantial question of law and it is answered accordingly. There is no need to allow the production of such type of evidence as this argument is not re quired for just decision of the case.;