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Judgment
L. Narasimha Reddy, J.—The 1st respondent filed O.S. No. 12 of 2000, in the Court of Senior Civil Judge, Nagarkurnool, for the relief of declaration of title and perpetual injunction, in respect of the suit schedule property. He also filed I.A.Nos. 117 and 3246 of 2000, for grant of temporary injunction, against two sets of respondents. Two more applications, being I.A.Nos. 368 of 2000 and 301 of 2001, are filed, for the relief of restitution of the suit schedule property to its original position. The enquiry into all the four applications is said to be still pending.
In respect of a portion of the suit schedule property, the petitioner, who is the Defendant No,3 in the suit, obtained permission from the Gram Panchayat, the 2nd respondent herein (Defendant No. 4 in the suit), to construct a building. The 1st respondent filed I.A. No. 196 of 2004, with a prayer to stay the proceedings, in which the permission was accorded to the petitioner, by the 2nd respondent. The application was filed by invoking Section 151 CPC, and Section 52 of the Transfer of Property Act (for short ''the Act''). Petitioner resisted the application, both on questions of fact and law. Through its order dated 8-9-2004, the Trial Court allowed the I.A. Hence, this CRP.
Learned Counsel for the petitioner Sri A. Sudershan Reddy, submits that I.A. No. 196 of 2004 was not maintainable, particularly, when applications filed by the 1st respondent under Order 39 Rule 1 CPC, are pending. He contends that Section 52 of the Act is a substantive provision, and the principle laid down in it can operate only after disposal of the suit, and it cannot be invoked in an interlocutory application.
Sri V. Hanumanth Rao, learned Counsel for the 1st respondent, submits that the operation of Section 52 of the Act is not confined to transfers pendente lite alone, and that it prohibits the suit schedule property from being "otherwise dealt with". According to him, undertaking construction, over the suit schedule property, during the pendency of the suit, comes within the fold of ''otherwise dealing with the property'', and thereby, the prohibition contained u/s 52 of the Act, operates. He has relied upon various judgments rendered by different High Courts, and the Supreme Court, in support of his contention.
O.S. No. 12 of 2000 is filed for the relief of declaration of title and perpetual injunction. The 1st respondent filed applications for the relief of temporary injunction, under Order 39 Rule 1 CPC, against all the defendants, in that suit. The applications are still pending. In addition, he filed two applications, for the relief of restoration of the suit schedule property, to its original position. The context, in which, they are filed and the purport thereof, is not the subject-matter of this CRP.
Even while the four applications filed by him are pending, the 1st respondent filed I.A. No. 196 of 2004, alleging that the petitioner herein obtained permission from the 2nd respondent, for construction of a building, and sought for stay of further proceedings, in pursuance of the permission accorded to the petitioner. Indirectly, he sought for the relief of temporary injunction against the petitioner. The 1st respondent did not plead that the grant of permission, in favour of the petitioner, is in contravention of any statutory provisions. In the words of the 1st respondent.
By the operation of Section 52 of the Transfer of Property Act, the Respondents 3 and 4 (petitioner and 2nd respondent herein), being parties to the suit proceedings, stand restrained from dealing with the suit property, in any manner".
The petitioner resisted the application, referred to the pendency of the applications for the relief of temporary injunction etc., and the circumstances under which, he approached the Gram Panchayat, the 2nd respondent, for obtaining permission. The Trial Court did not record any finding, either as to the possession over the suit schedule property, or the contravention of the provisions of the Panchayat Raj Act. All the same, it allowed the I.A., as prayed for.
The 1st respondent invoked Section 151 CPC and Section 52 of the Act, while filing the application. The nature of relief claimed in the I.A., is similar to the one, that can be prayed for, under Order 39 Rule 1 CPC. Section 151 CPC., could not have been invoked, where an application fits into a specific provision of CPC. Section 52 of the Act deals with the substantive rights of parties to a suit or proceedings. It protects the interests of the parties, in relation to an immovable property, vis-a-vis the transfers affected during the pendency of the proceedings. It can be invoked as a source of substantive right, only if a right is claimed by a party to the suit, or a person, claiming through him, on the basis of a transfer effected during the pendency of the suit. The question of Section 52, being invoked in an interlocutory application, is almost unknown to a civil law.
Ignoring these procedural aspects, for a while, it needs to be seen as to whether the situation is governed by Section 52 of the Act, at all. Though the provision is well-known to the legal fraternity, it becomes necessary to extract the same, to have a better idea about it, in the context of the plea raised by the parties. It reads as under:
Section 52. Transfer of property pending suit realating thereto :--During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
Petitioner contends that no transfer, as such, has taken place, during the pendency of the suit, and that there is no occasion for invoking Section 52 of the Act. On behalf of the respondents it is contended that, the attempt to make a construction, on the portion of the suit schedule property, comes within the fold of "otherwise dealing with the property", which is also prohibited by Section 52 of the Act.
It is rather difficult to accept, so wide a proposition advanced on behalf of the 1st respondent. The expression "otherwise dealt with", occurring in Section 52 of the Act, has to be understood and read in the context of, what is specifically prohibited, namely, "transfer of property", While prohibition of transfer, as such, is illustrative, the expression "otherwise dealt with" is required to take in its fold, the transactions, which are akin or similar to "transfer". By no stretch of imagination, it can be inferred that the property, which is an item of suit schedule, cannot be "dealt with" in any manner, whatever. If that be so, mere filing of a suit would take care of a situation, and it should bring about a grinding halt, to all the activities over the suit schedule property, be it, construction, cultivation, or any other kind of activity. In such an event, there would not be any necessity for a plaintiff to file an application under Order 39 Rule 1 CPC, at all; nor does he need to plead and prove prima facie case or balance of convenience. Mere filing of a suit would be sufficient to prevent the defendants, in a suit, from undertaking any activity, irrespective of the nature of the property or the entitlement of the plaintiff, over it. Such construction would not only be unacceptable, but would also lead to disastrous consequences, if accepted.
The expression "otherwise dealt with" was interpreted in several judgments rendered by the Supreme Court as well as High Courts. In Julam Missir and Others Vs. Pradip Missir and Others, , it was held that the expression ''transferred" occurring in Section 52 of the Act, refers to the categories of transfers, dealt with by the Transfer of Property Act, namely, sales, mortgages, leases, exchanges, gifts, and the expression "otherwise dealt with" takes in its fold the proceedings of different categories, such as, releases, surrenders, and involuntary transfers made through the intervention of Courts. In certain other decisions, the plea that the expression "otherwise dealt with" takes in its fold the acts of "adoption" (Narain Singh v. Iman Din AIR 1934 Lah 978), or "admission before Sub-Registrar" (Raft Uddin v. Brijmohan 21 IC 602) and "appointment of trustees" (Matinuzzaman Khan v. Hunter AIR 1939 Oud 161), were repelled. Involuntary transfers, such as those by operation of law, or through process of execution, were held to be outside the fold of the said expression.
Counsel for the respondents relied upon the judgment of the Allahabad High Court in Mohd. Ismail Vs. Ashiq Husain, . In that case, a suit for possession of an immovable property was filed. During the pendency of the suit, the defendants raised certain constructions. The suit was decreed and the decree became final. When execution was taken, an objection was raised by the judgment-debtor, that there was no decree for removal of the structures. It was on that context, that the Allahabad High Court drew analogy from Section 52 of the Act, and held that the judgment-debtor cannot take advantageof his own acts, which he performed during the pendency of the suit. In fact, there was no necessity to invoke the principle underlying Section 52, because there was no transfer, or any other related activity. The Court observed as under:
The words "otherwise dealt with" are general and can also include the raising of constructions wrongfully".
With due respect to the learned Judge, it is too difficult to give such a broad interpretation to the said expression, without taking into account, the main activity prohibited u/s 52 of the Act, namely ''the transfer''.
Gouri Datta Maharaj v. Sukur Mohammed AIR (35) 1948 PC 147, case did not relate to a situation, similar to the one obtaining in the instant case. The Privy Council was dealing with the validity of a mortgage, which was brought about, during the pendency of a suit, in relation to an immovable property. It does not relate to a relief claimed during the pendency of the suit, in the form of a prohibition, to proceed with the construction over a property.
Narain Singh v. Imam Din AIR 1934 Lah 978, is almost similar to the one in Mohd. Ismail v. Ashiq Hussain (supra). Here again, an issue was raised during the execution proceedings, in relation to a construction, during the pendency of a suit. A learned Judge of the Lahore High Court observed as under:
The principle of Section 52, T.P. Act, is clearly applicable to the facts of the present case. It cannot be contemplated that a defendant would be at liberty to erect buildings on a piece of land which forms the subject-matter of the litigation and thus compel the plaintiff to file another suit for the removal of the obstructions which came into existence after the suit had been filed."
The observations made in relation to the judgment in Mohd. Ismail v. Ashiq Hussain
(supra), hold good, in respect of this case also.
Reliance is placed upon the judgment in Kedar Nath Lal and Another Vs. Ganesh Ram and Others, . In that case, the application of principle of lis pendens was sought to be thwarted, on the ground that the property in question was attached in earlier suit, and the purchase was in pursuance of the said attachment. The Supreme Court repelled the contention and observed as under:
....If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition. This result is not avoided by reason of the earlier attachment. Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property. On the other hand, Section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation. Therefore the attachment was ineffective against the doctrine...."
Such a situation does not exist in the present case.
Another decision relied upon by the petitioner is the one in Dhan Singh and Others Vs. Smt. Sushilabai Laxminarayan Gujar and Others, . Delivery of possession of land by the judgment-debtors, in a suit, in favour of their transferees'' during the pendency of the suit, was held to be falling within the ambit of "otherwise dealing", occurring in Section 52 of the Act.
The Trial Court did not record any finding, as to the possession, in the instant case, nor the suit had ended in a decree. The learned Counsel has relied upon certain other decisions, which are on similar lines, and therefore, it is not felt necessary, to refer to the same.
For the foregoing reasons, it is held that Section 52 of the Transfer of Property Act does not govern the activities of the parties, in relation to the subject-matter of a suit, except transfers; nor can it be invoked to prevent the parties from dealing with such property, as long as such acts do not constitute transfers. Hence, the CRP is allowed, and the order under revision is set aside. There shall be no order as to costs.
Before parting with the case, the Court acknowledges the able assistance extended by the Counsel for the parties and in particular, the study undertaken by the learned Counsel for the 1st respondent.