M.M. Kumar, J. - (1.) OWING to difference of opinion expressed by two Single Bench decisions of this Court in the cases of Mewa Singh v. Jagir Singh, : AIR 1971 P&H 244 and Dalip Kaur v. Jeeva Ram,, 1996 PLJ 72, this reference has been necessitated and has been placed before us to opine on the following questions of law: - i) Whether the principles of lis pendens would apply in a case where sale has been effected after filing of SLP in the Supreme Court but before leave to appeal has been granted. In other words, whether the principles of Lis pendens would apply in respect of sale deeds executed in favour of the appellant Trust on 04.07.1985,24.10.1985 and 23.12.1985 after RSA 1020 of 1973 was dismissed by this Court on 08.03.1982 and SLP had been Filed in the Supreme Court on 19.07.1982, however, leave to appeal was granted on 13.04.1987? ii) Whether the effect of grant of leave to appeal is to be taken from the date of filing of the SLP i.e. on 19.07.1982 or from the date leave to appeal was granted on 13.04.1987? and iii) Whether in any case, the plea of bona fide purchaser in terms of Section 41 of the Transfer of Property Act, 1882, is available to the appellant in case the land purchased by him is affected by the principles of lis pendens?
(2.) IN order to put the issues in their proper perspective some skeleton facts as recorded in the reference order may first be noticed. The instant appeal is directed against order dated 11.12.2003, passed by the learned Additional District Judge, Kurukshetra, whereby order dated 15.05.1998, passed by the learned Civil Judge (Junior Division). Kurukshetra, has been upheld. As a consequence the appeal of the defendant - appellant has been dismissed. The respondent -decree holders had filed an application under Section 144 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') seeking restitution of property measuring 131 Kanals 10 Marlas on the basis of a decree passed by Hon'ble the Supreme Court on 10.07.1995 in their favour in Civil Appeal No.992 of 1987, which was directed against order dated 08.03.1982 passed by this Court in R.S.A.No. 1020 of 1973. There was one Smt.Mando, who had sold land measuring 131 Kanals 10 Marlas on 19.06.1967 in favour of Sewa Singh, Dalbir Singh and Darbara Singh sons of Kapoor Singh (for brevity, 'the vendees'). Smt.Mando has two daughters, namely, Smt.Subbi and Smt.Giano, who filed two separate suits bearing Civil Suit Nos.250 and 252 of 1968 respectively against the vendees (Sewa Singh, Dalbir Singh and Darbara Singh) for pre -emption of land and for setting aside sale deed dated 19.06.1967, executed by their mother Smt.Mando in their favour. Both the civil suits were consolidated and disposed of by a common judgment and decree dated 20.10.1972, passed by the learned Sub Judge 1st Class, Kamal. Accordingly, a decree for pre -emption was passed in respect of land measuring 131 Kanals 1 Marlas in favour of Smt.Subbi and Smt.Giano upholding their claim for pre -emption and the sale effected by Smt.Mando in favour of the vendees was set aside. Those vendees filed two separate appeals, which were dismissed by the learned District Judge, Karnal, on 10.05.1973. It further led to the filing of two regular second appeals, namely, R.S.A.No.716 of 1993 (filed by Shri Tara Singh, lessee), and R.S.A.No. 1020 of 1973 (filed by Shri Sewa Singh and others, vendees of Smt.Mando). Both the aforementioned appeals were disposed of by this Court on 08.03.1982. R.S.A.No.716 of 1993, filed by Shri Tara Singh, was allowed, whereas R.S.A.No.1020 of 1973, filed by Shri Sewa Singh and others, vendees of Smt.Mando, was dismissed.
(3.) THE controversy starts on 19.07.1982 with the filing of SLP No.9541 of 1982 by the vendees of Smt.Mando against order dated 08.03.1982, passed by this Court in R.S.A.No. 1020 of 1973. The SLP was filed within the prescribed period of Limitation. Alter more than five years the leave to appeal was granted by Hon'ble the Supreme Court on 13.04.1987 with specific order that there would be no stay. Thereafter, the SLP was renumbered as Civil Appeal 992 of 1987. During the pendency of the SLP, the Supreme Court by judgment dated 27.02.1986, passed' in the case of Atam Prakash v. State of Haryana, : (1986)2SCC249, declared the Punjab Preemption Act (1 of 1913) (as amended in 1960) (as applicable in Haryana) as ultra vires of Article 14 of the Constitution, insofar as the right of pre -emption based on consanguinity was concerned. On the basis of the judgment rendered in Atam Prakash case (supra), civil appeal filed by the vendees of Smt.Mando was allowed by Hon'ble the Supreme Court on 10.07.1995 and the decrees for pre -emption passed in favour of Smt.Subbi and Smt.Giano, daughters of Smt.Mando, were set aside. It is significant to notice that in the intervening period when the SLP was pending, both Smt.Subbi and Smt.Giano had executed sale deeds in favour of Yogeshwar Education Trust (defendant -appellant) on 24.10.1985 and 23.12.1985. Besides, sale deeds were also executed in favour of Shri Shashi Kumar son of Shri Dhan Singh and Shri Prithi son of Shri Surta son of Shri Dhan Singh. Even the vendees of Smt.Subbi and Smt.Giano i.e. Shri Shashi Kumar and Shri Prithi further executed sale deeds in favour of Yogeshwar Education Trust (defendant -appellant) on 04.07.1985 and 24.10.1985. It is, however, pertinent to mention that both Smt.Subbi and Smt.Giano had earlier taken possession of the land measuring 131 Kanals 10 Marlas on 12.06.1982 in pursuance of warrants of possession dated 22.05.1982, issued in execution of the pre -emption decree as a consequence of dismissal of R.S. A.No. 1020 of 1973 by this Court on 08.03.1982, which was filed by Shri Sewa Singh and other vendees of Smt.Mando. Shri Tara Singh, who was a lessee of the suit land died in the meantime and his legal heirs gave up their tenancy rights in favour of Smt.Subbi and Smt.Giano. In this manner, both Smt.Subbi and Smt.Giano had taken possession of the land measuring 131 Kanals 10 Marlas and also executed sale deeds in favour of the defendant -appellant trust and other. As noticed above, the vendees of Smt.Subbi and Smt.Giano (Shri Shashi Kumar and Shri Prithi) also executed sale deeds in favour of the defendant -appellant trust.;