- (1.) The following substantial questions of law arise for consideration in the second appeal:- i) Whether the plaintiffs are entitled to succeed on the only plea that the 1st defendant's purchase was affected by lis pendens by a transaction brought about during the pendency of the suit/appeal against the 1st defendant's vendor and the result of decision of the Civil Suit No.305 of 1968 in favour of the plaintiffs would conclude title in their favour ii) Whether the decision in Civil Appeal No.110 of 1969 is collusive and consequently, the decree passed will not bind the 1st defendant iii) Whether the plaintiffs have proved title against the 2nd defendant-Tulsa Ram independently of the decree in Civil Appeal No.110 of 1969
(2.) The suit was filed by the plaintiffs for declaration and for possession on a plea that the plaintiffs had already filed a suit in Civil Suit No.305 of 1968 and during the pendency of the suit, the defendant in the suit, who is the 2nd defendant herein, had sold the property on 17.02.1969. The sale was lis pendens and by virtue of a decree which the plaintiffs obtained at the appellate Court on 26.11.1969 against the 2nd defendant, the defendant's purchase must be affected by the decision declaring the plaintiffs' title to property. The defence was that the suit instituted by the plaintiffs against the 2nd defendant had been dismissed and though the property was purchased by the 1st defendant during the pendency of suit, the trial Court actually dismissed the suit and in appeal, the reversal of the decision came through on admission of the 2nd defendant herein that the decree could be passed in favour of the plaintiffs. The defence was, therefore, that the earlier decree which the plaintiffs secured against the 2nd defendant was the result of fraud and collusion by a person who had already transferred the property in favour of the 1st defendant and, therefore, the doctrine will not apply. The two courts dismissed the suit finding that at the time when the 2nd defendant suffered a statement in court, he had already transferred the property to the 1st defendant herein and the decision was collusive and hence, not binding.
(3.) In the second appeal filed by the plaintiffs, the counsel would rely on 3 judgments of this Court, viz., Jati Ram Saini Versus Prithi alias Sansi and others, 1996 113 PunLR 745; Sukhdev Singh and others Versus Mohan Singh and others, 2011 164 PunLR 95; and Gurdwara Shahid Baba Sangat Singh through its President Versus Smt. Surinder Kaur and others, 2008 149 PunLR 817, all of which have held that the question of bona fides of purchase of the property during the pendency of suit cannot defeat the doctrine of lis pendens and Section 41 of the Transfer of Property Act does not apply. I have no difficulty in holding that the purchaser pending suit takes a risk of the purchase being affected by the ultimate decision that was taken in the suit during which the purchase was made, but the decision which can bind a subsequent purchaser must be a decision which is valid in the eye of law. Section 52 of the Transfer of Property Act itself must be read in the context of whether a judgment was valid or not. Sections 40 to 44 of the Indian Evidence Act refer to the judgments of the courts of justice when relevant. Section 44 deals specifically with a situation when fraud or collusion in obtaining a judgment or incompetency of a court could be still a matter of proof. The Section reads thus:- "44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.-Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40,41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.";