Antara Majumdar vs Vimla Choudhary & Ors.

Amit Bansal, J.

The present appeal has been filed under Section 96 of the Code of Civil Procedure, 1908 (‘CPC’) against the order dated 27^th February, 2018 and the judgment and decree dated 8^th May, 2018 passed by the Additional District Judge, Tis Hazari Courts (‘Trial Court’) in CS No. 18346/2016 titled ‘Vimla Chaudhary & Ors. v. Gopal Krishan & Ors.’ (‘impugned judgment’).

By way of the order dated 27^th February, 2018, the Trial Court closed the evidence of the defendants. By way of the impugned judgment dated 8^th May, 2018, the Trial Court made absolute and final the preliminary decrees dated 9^th February, 2011 (‘first preliminary decree’) and 7^th April, 2018 (‘second preliminary decree’), whereunder the plaintiffs no. 1 to 4 (respondents no. 1 to 4) and the defendants no. 1 to 3 (respondents no. 5 to 7) were each held entitled to a 1/7^th share in the property bearing no. A-132, Pocket-I, Paschim Puri, Delhi (‘suit property’).

The appellant before this Court was the defendant no.4 before the Trial Court. The respondents no.1 to 4 before this Court were the plaintiffs no. 1 to 4 before the Trial Court. The respondent no. 5, 6 and 7 were the defendants no. 1, 3 and 2 respectively.

The case set up by the respondents no. 1 to 4 (plaintiffs) before the Trial Court was as under.

The respondents no.1 to 7 are the descendants of Late Sh. Sukh Dayal Sharma and Late Smt. Kaushlya Devi.

The suit property was purchased on 7^th October, 1978 in the name of Late Smt. Kaushlya Devi, from one Sh. Suja Lal on the basis of the following documents:

The funds for the purchase of the property, as well as the construction raised upon the suit property were partly arranged by the respondent no.1 (plaintiff no.1).

Sh. Sukh Dayal Sharma expired in the year 1996 and Smt. Kaushlya Devi expired on 13^th March, 2004, both intestate.

After the demise of Smt. Kaushlya Devi, a family arrangement/mutual agreement dated 25^th March, 2004 came to be executed between the respondent no.1 (plaintiff no.1) and the respondent no.5 (defendant no.1), which recorded that the cost of construction of the suit property had been borne by the respondent no.1 (plaintiff no.1) to the tune of Rs. 2,85,000/-, which was to be reimbursed to her by the other legal heirs in proportion to their respective shares, and that the suit property would thereafter be equally divided amongst all the legal heirs of Late Sh. Sukh Dayal Sharma and Late Smt. Kaushlya Devi.

Apprehending the alienation of the suit property by the respondent no.5 (defendant no.1), the respondents no.1 to 4 (plaintiffs) instituted a suit seeking partition of the suit property, possession of the suit property and the refund of amounts spent by the respondent no.1 (plaintiff no.1) towards the construction of the suit property.

The respondents no. 5 to 7 (defendants no. 1 to 3) filed a joint written statement contesting the suit, inter alia, on the ground that the respondent no.5 (defendant no.1) was the owner of the suit property and the construction thereupon, by way of a sale by Late Sh. Sukh Dayal in his favour.

In response, a replication was filed on behalf of the respondents no.1 to 4 (plaintiffs), denying the assertions in the written statement.

By way of order dated 1^st September, 2005 under Order XXXIX Rules 1 and 2 CPC, the Trial Court restrained the respondent no.5 (defendant no.1) from alienating or transferring the suit property. The said interim order was extended from time to time, and remained in operation thereafter.

Vide order dated 21^st February, 2006, the Trial Court framed the following issues:

The respondents no.1 to 4 (plaintiffs) examined four witnesses and concluded their evidence on 28^th April, 2007.

The respondents no.6 and 7 (defendants no.3 and 2) examined one witness and concluded their evidence on 16^th March, 2009.

During the pendency of the suit proceedings, a joint application was filed under Order XXIII Rule 3 CPC by the respondents no.1 to 4 (plaintiffs) and the respondents no. 6 and 7 (defendants no. 3 and 2), i.e., by all the parties except the respondent no.5 (defendant no.1), wherein the respondents no. 6 and 7(defendants no. 3 and 2) admitted that all the parties had a right in the suit property and prayed that the same be partitioned into seven equal shares. They further stated that they had no objection to paying their respective share of the expenses incurred by the respondent no. 1 (plaintiff no.1).

In view of the above compromise arrived at between the respondents no.1 to 4 (plaintiffs) and the respondent no. 6 and 7 (defendants no.2 and 3), the Trial Court issued directions to the respondent no. 5 to appear in person. However, the respondent no.5 (defendant no. 1) did not enter appearance in person nor did he lead any evidence. Accordingly, the matter was listed for orders, with liberty to the respondent no.5 (defendant no.1) to make final arguments, if any.

Vide the first preliminary decree dated 9^th February, 2011, the Trial Court directed the respondents no. 5 to 7 (defendants no.1 to 3) to pay a sum of Rs. 42,857/- each to the respondent no.1 (plaintiff no.1) towards their respective 1/7th share in the cost of construction. A preliminary decree of partition was also passed holding that the respondents no. 1 to 7 (plaintiffs no.1 to 4 and defendants no. 1 to 3) were each entitled to a 1/7^th share in the suit property. The Trial Court also observed that the respondent no.5 (defendant no.1) had not made out a case for declaration as the absolute and sole owner of the suit property, inasmuch as no evidence was led by him, despite contesting the suit on the ground that he was the actual owner of the suit property by way of sale of the suit property in his favour by his father.

After the passing of the first preliminary decree, the parties attempted a settlement. A joint relinquishment/release deed dated 3^rd August, 2011 and a compromise deed-cum-Memorandum of Understanding dated 5^th August, 2011 were placed on the record of the Trial Court as Exh.C-1 and Exh.C-2. However, the respondent no. 5 (defendant no.1) did not appear before the Trial Court to have his statement recorded, on account of which a court notice was issued to him on 18^th August, 2011.

A Conveyance Deed came to be executed and registered on 11^th May, 2012 by the Delhi Development Authority in favour of the respondent no. 5 (defendant no.1), whereby the leasehold rights in the suit property were converted into freehold rights in his name.

Subsequently, on 22^nd May, 2012, the respondent no.5 (defendant no.1) executed a registered sale deed in favour of the appellant (defendant no.4) in respect of the suit property for a consideration of Rs. 13,40,000/-.

On 13^th August, 2012, the appellant (defendant no.4) entered appearance before the Trial Court and informed the Court that she had purchased the suit property from the respondent no.5 (defendant no.1).

In 2014, the appellant (defendant no.4) filed an application seeking impleadment under Order I Rule 10(2) read with Section 151 CPC, which was allowed vide order dated 21^st September, 2015. On the same date, it was brought to the notice of the Trial Court that several proceedings relating to the suit property were pending in different courts. The Trial Court observed that it would be appropriate that the suits be clubbed for the purpose of trial before the same court, for which counsel for the parties sought time to move an appropriate application before this Court. Three Transfer Petitions came to be filed before this Court in relation to the proceedings concerning the suit property.

On 28^th November, 2017, the Trial Court observed that the transfer proceedings had failed and put up the matter for final arguments.

Vide order dated 5^th February, 2018, the Trial Court framed the following additional issue:

By the impugned order dated 27^th February, 2018, the Trial Court recorded that none had appeared on behalf of the appellant (defendant no.4) and accordingly forfeited the right of the defendants, particularly of the appellant (defendant no.4), to lead evidence. Recording the submission of counsel for the respondents no.1 to 4 (plaintiffs) that the said parties did not wish to lead evidence, the plaintiffs’ evidence was also closed.

Vide the second preliminary decree dated 7^th April, 2018, the Trial Court decreed the suit in terms of the first preliminary decree. The additional issue framed, as reproduced in Para 26 hereinabove, was decided against the appellant (defendant no.4) on the ground that the appellant (defendant no.4) did not lead any evidence and had failed to prove that she was a bona fide purchaser of the suit property.

By way of the impugned judgment and decree dated 8^th May, 2018, the Trial Court made absolute and final the first and second preliminary decrees. The Trial Court noted that the suit property was incapable of division by metes and bounds on account of the nature of the structure, and that only the proceeds thereof could be distributed amongst the shareholders. A joint statement of the parties present was recorded separately to that effect.

Aggrieved by the order dated 27^th February, 2018 and the impugned judgment and decree dated 8^th May, 2018, the appellant (defendant no.4) preferred the present appeal.

Notice in the present appeal was issued vide order dated 19^th September, 2019 on which date this Court directed that status quo qua the title of the subject property shall be maintained. The said interim order has been extended from time to time and continues to be in force.

On 30^th July, 2026, this Court appointed Ms. Nidhi Mohan Parashar, Advocate as Amicus Curiae to assist the Court.

On 25^th September, 2026, submissions of the parties concluded, a note of submissions on behalf of the Amicus Curiae was taken on record and the judgment was reserved.

To be noted, during the pendency of the appeal, the respondent no. 3 (plaintiff no.3) and the respondent no.5 (defendant no.1) have expired, however the appellant did not take any steps to bring their LRs on record.

Mr. B.K. Mishra, counsel appearing on behalf of the appellant (defendant no.4) submits that the impugned order and decree are based on conjectures and surmises.

The appellant (defendant no.4) was never afforded a real and effective opportunity to lead evidence on the issue of her being a bona fide purchaser, and the said issue was never considered on merits.

The non-appearance of the appellant (defendant no.4) on 27^th February, 2018 and 7^th April, 2018 was bona fide and attributable to the wrong noting of the date of hearing.

The Trial Court forfeited the right of the appellant (defendant no.4) to lead evidence on 27^th February, 2018 without issuing any notice to her. Hence, the impugned order is in breach of the principles of natural justice.

The Trial Court ought to have appreciated that a Transfer Petition was pending before this Court, and awaited the outcome of the same before proceeding to decree the suit. The respondents no.1 to 4 (plaintiffs) misled the Trial Court by not disclosing the pendency of the Transfer Petition before this Court.

Mr. Vijay Datt Gahtori, counsel appearing on behalf of the respondents no. 1, 2 and 4 (plaintiffs) submits that the purchase of the suit property by the appellant (defendant no.4) is squarely hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 (‘TPA’). The suit property was the subject matter of a pending partition suit, wherein an interim order restraining the defendant no. 1 from disposing of the suit property had been passed. Hence, the sale effected by the defendant no.1 in favour of the appellant was in the teeth of the said interim order and the preliminary decree dated 9^th February, 2011.

The appellant (defendant no.4) purchased the suit property in collusion with the respondent no.5 (defendant no. 1), with full knowledge that the same was the subject matter of a pending suit, evidenced by the nominal consideration of Rs. 13,40,000/- paid.

In any case, the first preliminary decree dated 9^th February, 2011 remains unchallenged and has attained finality. The appellant (defendant no.4) entered appearance before the Trial Court on 13^th August, 2012 and was impleaded on 21^st September, 2015. However, no application was made for the setting aside of the first preliminary decree. Reliance in this regard is placed upon Venkata Reddy & Ors. v. Pethi Reddy, AIR 1963 SC 992.

The Trial Court adjourned the suit on multiple occasions, however, none appeared for the appellant (defendant no.4) on various dates.

The submission of the appellant (defendant no.4) with respect to the pendency of the Transfer Petitions is misconceived, inasmuch as the respondents had raised no objection to the clubbing of the suits. TR.P.(C.) 64/2016 was dismissed on 1st September, 2017 and TR.P.(C.) 170/2017 was rejected on 3rd November, 2017, both prior to the impugned order dated 27^th February, 2018.

Without prejudice to the above submissions, the present appeal is liable to be dismissed on account of the fact that despite multiple orders providing opportunity for the same, no application has been filed by the appellant to bring on record the legal representatives of the deceased respondent no.3 (plaintiff no.3) and the respondent no.5 (defendant no. 1). Consequently, the appeal stands abated qua the said respondents.

Mr. Akhil Gupta, counsel appearing on behalf of the respondents no. 6 and 7 (defendants no. 3 and 2), adopts the submissions made on behalf of the respondents no. 1,2 and 4 (plaintiffs no.1,2 and 4).

Ms. Nidhi Mohan Parashar, Amicus Curiae, submits that while the appellant (defendant no.4) has been proceeded ex-parte in the impugned judgment and decree, the appellant has to make out ‘sufficient cause’ for non-appearance. In terms of G.P. Shrivastava v. R.K Raizada & Ors, (2000) 3 SCC 54, discretion may be exercised in favour of a party that approached the courts immediately. In this regard, the Amicus Curiae highlights the conduct of the appellant (defendant no.4) before this Court, including inter alia the delay of 40 days in refiling of the appeal, the repeated adjournments sought by the appellant (defendant no.4), and the failure of the appellant (defendant no.4) to implead the LRs of the deceased respondent no. 3 (plaintiff no.3) and the deceased respondent no.5 (defendant no.1).

She further submits that a transferee pendente lite is bound by the decree, even when the subsequent purchaser may be a bona fide purchaser without notice of the decree. Reference in this regard may be made to Shingara Singh v. Daljit Singh and Anr, 2024 INSC 770 and Balwant Singh v. Buta Ram and Ors, 2009 SCC Online P&H 6642. In the present case, the conveyance deed dated 22^nd May, 2012, was executed in favour of the appellant (defendant no.4) after the first preliminary decree dated 9^th February, 2011, was passed, which has not been challenged in the present appeal.

I have heard the counsel for the parties and perused the record of the appeal.

It is the case of the appellant (defendant no.4) that a registered sale deed was executed in her favour on 22^nd May, 2012 by the respondent no.5 (defendant no.1) for a sum of Rs.13,40,000/-. Immediately thereafter, on 13^th August, 2012, the appellant (defendant no.4) entered appearance in the suit before the Trial Court claiming that she was a purchaser of the suit property. The statement of the appellant (defendant no.4) and the respondent no.5 (defendant no.1) to this effect was also recorded before the Trial Court.

Subsequently, the appellant (defendant no.4) filed an application under Order I Rule 10 CPC, seeking impleadment as a party in the suit, which was allowed by the Trial Court on 21^st September, 2015. The appellant (defendant no.4) informed the Court that she had filed another suit for injunction relating to the suit property, which was pending before the Civil Court.

On various dates thereafter, the respondent no.5 (defendant no.1) and the appellant (defendant no.4) sought time for the transfer of the cases to one court. However, vide order dated 28^th November, 2017, the Trial Court recorded that the transfer of the cases to one court had failed and therefore, the matter was put for final arguments. Pertinently, this order was passed in the presence of the advocate of the appellant (defendant no.4). Thereafter, the matter was put up for hearing on various dates, however, the appellant (defendant no.4) failed to appear on the said dates.

In the order passed on 5^th February, 2018, the Trial Court noted that the appellant (defendant no.4) had filed her written statement and framed an additional issue, i.e., “Whether defendant no.4 is a bonafide purchaser? OPD4.”.

On 27^th February, 2018, Trial Court closed the right of the appellant (defendant no.4) to lead evidence due to non-appearance and put the matter for final arguments on 7^th April, 2018. On 7^th April, 2018, the Trial Court passed a preliminary decree to the effect that the plaintiffs and the defendants no.1 to 3 (respondents no.1 to 7 herein) shall be entitled to 1/7^th share in the suit property. It was also recorded that the appellant (defendant no.4) had failed to prove that she is a bona fide purchaser.

Ultimately, on 8^th May, 2018, the Trial Court passed the final decree. Once again, there was no appearance on behalf of the appellant (defendant no.4).

It is well settled that an ex-parte decree cannot be set aside unless sufficient cause is shown by the relevant party for the said non-appearance. Reference in this regard may be made to G.P. Shrivastava v. R.K Raizada & Ors, (2000) 3 SCC 54. The relevant extract from the said judgment is set out below:

The appellant (defendant no.4) failed to provide sufficient cause for her non-appearance on various dates with effect from 9^th January, 2018. i.e., 9^th January, 2018, 29^th January, 2018, 5^th February, 2018, 27^th February, 2018, 7^th April, 2018 and 8^th May, 2018. It is a matter of record that the appellant (defendant no.4) did not file an application under Order 9 Rule 13 CPC for setting aside of the ex-parte decree.

A perusal of the proceedings before the Trial Court, as summarized above, shows that ample opportunity was given by the Trial Court to the appellant to get the other suits transferred and consolidated with the present suit. It was on 28^th November, 2017 that the Trial Court noted that the consolidation and transfer has failed.

Pertinently, the Transfer Petitions, TR.P.(C) 64/2016 and TR.P.(C) were dismissed vide orders dated 1^st September, 2017 and 3^rd November, 2017 respectively, prior to the second preliminary decree which was passed on 7^th April, 2018. Insofar as the third Transfer Petition, i.e., TR.P.(C.) 6/2018 is concerned, the pendency of the same was not brought to the attention of the Trial Court by the appellant (defendant no.4), as she stopped appearing before the Trial Court. In fact, this Court, vide order dated 20^th April, 2018 in TR.P.(C.) 6/2018, noted that the appellant had neither filed the process fee nor taken steps to serve the respondents therein. Subsequently, the said petition was dismissed as infructuous on 22^nd May 2018 in view of the impugned judgment and decree.

In these circumstances, this Court does not find any merit in the submission of the appellant (defendant no.4) that the Trial Court should have awaited the outcome of the Transfer Petition before proceeding to decree the present suit.

It is a settled proposition of law that a transferee pendente lite is bound by the decree already passed. Once, it is established that a sale is executed during the pendency of a suit, doctrine of lis pendens in terms of Section 52 TPA would apply and it would not matter if the purchaser is a bona fide purchaser or not. Reference in this regard may be made to Shingara Singh v. Daljit Singh and Anr, 2024 INSC 770 and Balwant Singh v. Buta Ram and Ors, 2009 SCC Online P&H 6642.

The relevant observations of the Supreme Court in Shingara Singh v. Daljit Singh and Anr, 2024 INSC 770 are set out below:

Admittedly, in the present case, the preliminary decree in the suit had already been passed on 9^th February, 2011 and the sale deed in favour of the appellant was executed after the said date. Therefore, the doctrine of lis pendens would apply and title in favour of the appellant would be subservient to the preliminary decree, which declared the share of each of the respondents no.1 to 4 (plaintiffs) and the respondents no. 5 to 7 (defendants no.1 to 3) as 1/7^th each.

Despite becoming a party in the present suit on 21^st September, 2015, the appellant (defendant no.4) has not challenged the preliminary decree dated 9^th February, 2011, nor has she challenged the second preliminary decree dated 7^th April, 2018..

The Supreme Court in Venkata Reddy & Ors. v. Pethi Reddy, 1962 SCC OnLine SC 320 has held that a preliminary decree passed in a partition suit is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. The relevant observations from the said judgment are set out below:

In view of the discussion above, the appellant (defendant no.4) has failed to make out a case for interference with the impugned order dated 27^th February, 2018 and the impugned judgment and decree dated 8^th May, 2018.

Accordingly, the appeal is dismissed.

Pending applications stand disposed of.