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Judgment
Rule. Rule made returnable forthwith.
Heard finally with the consent of learned Counsel for the respective parties.
The Petition challenges order passed by the 2nd Joint Civil Judge Senior Division Washim in R.C.S. No. 277 of 2000 passed below Exhibit 448.
The facts which are more or less undisputed can best be described as under:
A suit for partition came to be filed by the respondents herein, bearing R.C.S. No. 277 of 2000, claiming partition of certain properties as described therein. In the application under Order 39 Rule 1 and 2 of Code of Civil Procedure, a temporary injunction restraining alienation of the subject property in question was sought for, which was rejected on 23.09.2023. The matter came up to this Court in Writ Petition No. 5460 of 2023, in which this order was passed :
“ Heard for some time.
2.The suit under question has been filed in the year 2000. The petitioners - original defendant nos. 6 to 8 appear to be owners of 50% of suit land. They have purchased this portion of land vide registered sale deeds dated 18-12-1967 and 3-3-1969. They intend to sell the undivided share belonging to them. The Trial Courtrejected the application on the count that injunction is operating in favour of the plaintiffs -respondent nos. 1 to 12.
3.Learned Senior Counsel submits that the petitioners are at fag end of their life and wish to have fruits of the property by selling the same. Accordingly, the order granting injunction and order refusing permission to sell the undivided share have been challenged.
4.At this stage, learned counsel for respondent no. 12 submits that better option would be to direct the Trial Courtto decide the suit within three months.
5.Considering the above, let the Trial Courtmake an endevour to dispose of the suit within six months from today, failing which, the Trial Courtshall consider the request, if made by the petitioners to alienate the property in terms of Section 52 of the Transfer of Property Act, 1882 and for that purpose, the order of injunction passed against the petitioners shall stand vacated without further reference to this Court. The application so filed shall, however, be considered on its own merits.
6.The parties to the suit shall cooperate with the Trial Courtto decide the suit within six months.
7.With the above direction and liberty, the petition is disposed of.”
It is therefore clear that this Court directed the Trial Court to make an endeavor to dispose of the suit within six months from the date of the order, failing which the Trial Court shall consider the request, if made by the petitioners, to alienate the property in terms of Section 52 of the Transfer of Property Act. In view of the liberty granted by this Court, an application was made at Exhibit 448 seeking permission to transfer the property. The said application was made by defendant Nos. 6 and 7 and their younger brother Mr. Raman Nandlal Chhaparwal. Permission was sought to sell the land admeasuring 2 Hectares 2 R from Gut No. 364 of Washim 3, Taluka and District Washim, to the purchasers as named in the application. It is also averred in the application that the prospective or intending purchasers would not be put in the possession of the property since the shares are not demarcated as yet. The said application was strongly opposed by the respondents herein by filing a reply, which is at Exhibit 454 (Annexure S). The said application, however, came to be rejected by the Trial Court vide its order dated 16.04.2025, which is impugned in the present petition.
I have heard Mr. Kaptan, learned Senior Advocate along with Mr. Mohta, learned Counsel for the petitioners and Mr. Deshpande, appearing for the respondent No.4.
The learned Senior Counsel by taking me through the narration of facts, has submitted that no prejudice of whatsoever nature would have been caused to the present respondents since admittedly the suit claims half share in the property, which would be admeasuring 15 Acres at the most. By taking me through the impugned order, it is the submission of the learned Senior Advocate for the petitioners that the Trial Court has only considered the pendency of the suit from the year 2000 and has in fact not considered the matter in light of the provisions of Section 52 of the Transfer of Property Act.
He places reliance on judgments reported in 2024 SCC OnLine All 4236, Sanjay Kumar Tripathi and another Vs. Suryakali Tripathi. In the said judgment, in paragraph No. 10, the Hon’ble Allahabad High Court has stated that it is a settled position of law that the defendants' transferee would not be entitled to possession or to seek possession over any portion of the suit property and would become the owner of the share or the area of the land transferred, which such transferee can, like the defendant or any other co-sharer, seek partition or through a suit instituted for the purpose.
Furthermore, the learned Senior Counsel also places reliance on a judgment of the Hon’ble Apex Court reported in (2009) 7 SCC 444, Ramdas vs. Sitabai and others, and more particularly paragraph No. 16 thereof, which is reproduced as under for the sake of brevity:
“16.It is settled law under the Transfer of Property Act, 1882 that a purchaser cannot have a better title than what his vender had. The possession which is claimed by Defendant 3 Ramdas (the appellant herein) in respect of the entire land bearing Gat No. 19 area admeasuring 2.56 H of Mouza Padoli was also illegal and without proper sanction of law. So long as the property is joint and not partitioned, Defendant 3 Ramdas (the appellant herein) is not entitled to get possession of the said land. Even otherwise, the appellant herein having purchased the land from Defendant 1 Sudam could be entitled to be declared at the most to the extent of half-share of the said piece of land having stepped into the shoes of his vendor and could not have asked for and claimed ownership and possession over the entire land of Gat No. 19 admeasuring 2.56 H.”
Furthermore, in the same reported judgment, the Hon’ble Apex Court in paragraph No. 19 has reported as under:
“19.In view of the aforesaid position there could be no dispute with regard to the fact that an undivided share of co-sharer may be a subject-matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the court.”
The learned Senior Counsel has also placed reliance on a judgment reported in (2006) 13 SCC 608, Sanjay Verma Vs. Manik Roy and others, and more particularly paragraph No. 10 thereof, which takes into consideration the effect of Section 52 of the Transfer of Property Act and records that a transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the Transfer of Property Act, being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The section only postulates a condition that the alienation will in no manner affect the right of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court.
He also places reliance on a judgment of the Hon’ble Apex Court in (2010) 14 SCC 370, T.G. Ashok Kumar vs. Govindammal and another, in which, in paragraph 16 thereof, more or less the same principles have been enunciated.
Taking cue from these judgments, it is the submission of the learned Senior Counsel for the petitioners that the purport and ambit of Section 52 would take care of the alienations, if any. He therefore submits that the order records a findings which are out and out perverse and cannot be sustained. He therefore prays for allowing the petition by exercising powers under Article 227 of the Constitution of India.
Per contra, Mr. Deshpande, learned Counsel for respondent No.4, submits that the order of the Trial Court is just and proper and it has taken into consideration the long pendency of the suit and the right stage at which the suit is at present. By pointing out paragraph No. 15 of the impugned order, Mr. Deshpande points out that the evidence in the matter has already commenced and the Trial Court was right in rejecting the application seeking permission to sell, as it would unnecessarily give rise to multiplicity of litigation, which could well be avoided.
Rival considerations fall for my consideration.
Having gone through the record of the matter, and more particularly the prayer clause in the plaint, what is claimed is only a half share in the property. As has been rightly pointed out by the learned Senior Counsel, in paragraph No. 4 of the plaint, the plaintiffs have in fact admitted that they have the ownership of the present applicants regarding a particular share in the property.
Be that as it may, only because the suit pends from 2000, i.e. more than 25 years from now, would not amount to put fetters on the ownership rights of the parties. True it is that Section 52 would take care of the situation. Section 52 of the Transfer of Property Act is brought on the statute book to take care of such contingencies when the alienation is done with the express permission of the Court. Bare perusal of the application seeking permission would reveal that not only the names of purchasers were stated in the application, but it was emphatically stated that they would be not put in possession of the shares since the shares are not demarcated as yet and are subject to the result of the pending suit. Therefore, in my considered opinion, the order which does not take into consideration the true scope and ambit of Section 52 records a perverse finding, which is liable to be interfered with.
In that view of the matter, the writ petition is allowed.
The order dated 16.04.2025 is set aside, and the application at Exhibit 448 is allowed.
It is, however, made clear that the purchasers would file an affidavit before the Trial Court that they would be bound by the decree passed, if any, in the suit and would not resist or obstruct the execution of the decree if it is put into execution.
The Writ Petition is allowed and disposed of in the above terms. No order as to costs.