The Judgment of the Court was delivered by
Dr. Vineet Kothari, J.:— This application has been filed by one Sumesh son of Mani Ram by caste Ganchi claiming himself to be the power of attorney holder of applicant Laxmi Narayan son of Girdhari Lal Sharma aged about 80 years resident of Kudi Bhagtasani Housing Board, Jodhpur represented by learned counsel Mr. M.C Bhoot. In the said application, it has been claimed that final bid in respect of auction of property belonging to Puri Brothers situated at Sojati Gate may be confirmed with the condition that prospective purchaser will get only the legal possession of the land measuring 17×15 ft. and the possession of said applicant over the said portion of the land may not be disturbed, on which he says that he is in possession of a cabin located at the said property.
2. It may be stated that this litigation has a chequered history and a partition suit is pending since 1965 in which the preliminary decree for partition passed by the trial Court came up before this Court in four writ petitions in which detailed order was passed on 23.5.2008 directing the auction of the properties belonging to said Puri Brothers and the said detailed order of this Court came to be challenged by the one of the parties before the Hon'ble Supreme Court namely SLP (Civil) No. 24344/2008, which came to be dismissed by the Hon'ble Supreme Court on 20.10.2008
3. Thereafter, two of the properties of the said family were auctioned by a high powered Auction Committee and the sale thereof were confirmed by this Court and the auction proceeds were disbursed in the various stake holders of the said family and the vacant possession of the said properties were handed over to the auction purchasers.
4. In the previous auction proceedings also some objections were raised and one such applicant as is before this Court now, another applicant had also approached this Court by way of similar application claiming to be tenant over the portion of that property and raised objection against his dispossession. Overruling the said objection, the Court directed delivery of vacant possession to the auction purchaser with police aid, if necessary, to the high powered committee constituted by this Court and thus those auction were successfully carried out.
5. Now the vacant plot of land measuring 10532 sq. ft. situated at prime location of Jodhpur City near Sojati Gate, property at item No. 11, was put to auction under the directions of this Court by the same High Powered Committee comprising of two retired District Judges and one person from the Insurance Sector. Said auction was carried out after duly publishing the advertisement and the sale in favour of highest bidder at Rs. 7.85 crores was confirmed by this Court on 21.1.2010 The said auction was also confirmed after overruling the objection of one Rameshwar Lal Rathi, who also participated in the said auction proceedings and sought to offer marginally higher price to unsettle the said highest bid, however, his objections were overruled and the sale in favour of the highest auction bidder was confirmed by this Court on 21.1.2010 and the auction proceeds were directed to be disbursed in the various stake holders of the said Puri family after meeting the incidental expenses. In this background the present application filed by one Sumesh Gandhi claiming himself to be the Power of Attorney Holder of one Laxmi Narayan came up before this court and arguments were heard of the counsels.
6. Mr. M.C Bhoot, learned counsel appearing for the said applicant submitted that the said applicant Laxmi Narayan was a tenant of a cabin (Temporary Structure) put up on the front portion of the land on Main Sojati Gate Road and, therefore, with the said auction his tenancy rights maybe protected and he may not be dispossessed from the said land. Along with the said I.A No. 1028/2010, learned counsel has produced Annex. 1. A copy of the letter dated 31.7.1979 from Shanker Puri Goswami, Receiver of Lal Puri Khumanpuri's HUF Properties to one Laxmi Narayan, a Booking Clerk, C/o Minerva Cinema, Jodhpur in which said Receiver appears to have written to said Laxmi Narayan that, “I have learnt that you are occupying some portion in this property situated near Haji Abdulla Building, on Sojati Gate Nala, Station Road, Jodhpur on a monthly rent.” and, therefore, said person Laxmi Narayan was called upon to make payment of rent to said Receiver. Annex. 2, another letter dated 26.4.1980 of the same Receiver appears to be a notice to said Laxmi Narayan to the effect that he should deposit the regular rent which was not deposited for the month of January and February, 1980 upto April, 1980. As stated by learned counsel that the rent for the said premises @ Rs. 15/- per month was deposited under Section 19A of the Rent Control Act in the trial Court. Annexs. 4 and 5 are purported to be the receipts of deposit of said rent in the Court. Learned counsel also produced a photograph of the said cabin bearing the Board ‘Borana Musical Centre’ as Annex. 7 and the photo copy of the General Power of Attorney executed by Laxmi Narayan in favour of Sumesh.
7. Learned counsel Mr. M.C Bhoot, therefore, submitted that the applicant was a tenant and his rights are deserved to be protected.
8. The said submissions are vehemently opposed by Mr. G.R Singhvi, Mr. Manoj Bhandari, Mr. Sajjan Singh and Mr. Parmendra Puri. These counsels have vehemently submitted that there is no tenancy created in favour of the said applicant Laxmi Narayan much less in favour of so called power of attorney holder Mr. Sumesh. They urged that said power of attorney older is a mere encroachee and since this Court had directed auction to take place and auction having been finalized in favour of the highest bidder and sale has been confirmed, the said property was to be handed over to he auction purchaser free from all encumbrances and vacant possession is to be handed over to him and the encroachment in question deserves to be removed, if necessary with police aid and auction bidder should be permitted to protect his property by raising boundary wall on the said property.
9. They have submitted that even assuming for the arguments sake while denying that any tenancy was created in favour of said Laxmi Narayan in respect of said cabin, which in fact measured only 10×10 ft. and not 17×15 ft. as claimed, such tenancy was hit by lis pendense under Sec. 52 of the Transfer Property Act and was, therefore, void and the said applicant, therefore, was not entitled to any protection whatsoever. They relied upon certain judgments of Hon'ble Supreme Court, which would be discussed hereinafter.
10. Mr. G.R Singhvi, learned counsel also relied upon Section 30 of the Hindu Succession Act to submit that no right could be created by any of the co-parceners of the Joint Hindu Family in favour of any third party intra vivos during the pendency of litigation. He also relied was decision of Supreme Court in this regard.
11. Having heard the learned counsels, this Court is of the view that the applicant Laxmi Narayan through so called power of attorney holder Mr. Sumesh Ganchi cannot be said to be tenant of the said cabin or portion of land of the auctioned land belonging to Puri Brothers, which has been auctioned and sold under the orders of the Court at Rs. 7.85 crores and said sale having been confirmed on 21.1.2010 upon deposit of entire auction price by the auction purchaser, the said is not entitled to any relief from this Court and his status is that of mere encroachee over the said portion of land.
12. Said applicant Sumesh Ganchi claims to be power of attorney holder though no original power of attorney was produced in this court and merely a photo copy of one alleged power of attorney executed by Laxmi Narayan aged 80 years in his favour has been produced in this Court. Laxmi Narayan, a booking clerk in nearby Minerva Cinema, himself has not come before this Court. In his affidavit dated 4.2.2010 filed after the arguments were over on 4.2.2010 and order was reserved and was summoned from office only today, he says, taking a different stand, that Sumesh is my servant. No such stand was taken earlier. The said affidavit is wholly unreliable. Annex. 1 letter dated 31.7.1979 also cannot confer any tenancy rights over the said applicant Laxmi Narayan. The said letter purported to have been written by Receiver of the property merely demanding rent because it has come to the notice of Receiver that a cabin exists there. No rent note or any other document has been placed on record by the said applicant which could show the creation of any tenancy right in favour of said applicant. No rent receipt issued by any of the family members has been produced by the said applicant, therefore, when this tenancy commenced or was initially created is not at all established. Neither the creation of tenancy nor the continuous payment of rent in respect of said property to Receiver is established, Annex. 4 and 5 alleged rent receipts in the name of Laxmi Narayan do not establish that rent is in respect of this very cabin or something else. The said evidence in the form No. 19A, Annex. 4 and 5 is sketchy and not clear and cannot be said to be any credible evidence for establishing any tenancy rights in favour of said applicant in respect of said cabin. The photograph produced by the applicant is in the name of ‘Borana Musical Centre’. What is the relationship of Laxmi Narayan with ‘Borana Musical Centre’ is not known. No document in favour of said Sumesh Ganchi by any member of the Puri family is on record. How Laxmi Narayan has passed on any tenancy rights to Sumesh Ganchi is not known. Why said Sumesh Ganchi is now approaching this Court directly without having done anything over all this past period, is not known and rather it raises serious doubt on his bona fides. Thus, so called shreds or pieces of evidence produced with the said application do not establish anything, worth the name in favour of said applicant much less any tenancy rights in his favour. The applicant is, therefore, held to be merely an encroachee over the said land, who deserves to be removed from said plot of land immediately with police aid, if necessary.
13. Even if for arguments sake it was to be assumed for a moment that the applicant was given some tenancy, though there is nothing on record to establish that, even then such transaction would be void and hit by the principle of lis pendens under Sec. 52 of the Transfer of Property Act. The partition suit is question is pending since 1965 and the said applicant himself claims that he has become tenant in the said property since 1978-1979. The said suit is still pending, therefore, apparently principle of lis pendens applies in the present case.
14. The legal position in this regard is settled by various decisions of Supreme Court and the decisions cited at the bar which are discussed below for ready reference.
15. In Venkatrao Anantdeo Joshi v. Sau. Malatibai - (2003) 1 SCC 722 : AIR 2003 SC 267 the Hon'ble Supreme Court in para 7 and 8 of the judgment held as under:
“7. At the time of hearing of this appeal, learned counsel for the appellants submitted that the plea of tenancy raised by Baburao is on the face of it, bogus so as to defeat the rights of the appellants which are crystalised at the time of passing of the preliminary decree. Presuming that pending the suit for partition, even if batai patra is executed, it would not confer any rights on Baburao as it is hit by principles of lis pendens. In any case, as the preliminary decree becomes final, it was not open for Baburao to raise such contention at the time of passing of final decree for partition.
8. With regard to lis pendens, learned counsel for the appellants rightly referred to the judgment and decree passed in Regular Civil Suit No. 51 of 1973 and contended that presuming that the so-called batai patra was at all executed by Anantdeo, it was not open to him to execute the same pending disposal of he suit filed by appellant No. 1 for partition of the property……”
16. In a recent decision again the Hon'ble Supreme Court in Guruswamy Nadar v. P. Lakshmi Ammal - (2008) 5 SCC 796 : 2008 (3) RLW 2363 (SC) quoting with approval the Full Bench decision of Allahabad High Court held that the principle of lis pendens is based on sound public policy in order to discourage the subject property to subsequent sale to third person, such kind of transaction is to be checked otherwise litigation will never come to an end. In para 12 and 13 the Apex Court held as under:
“12. The Full Bench of Allahabad High Court further referred to the work of Story on Enquiry IIIrd Edition, (Para 406) which expounded the doctrine of lis pendens in the terms as follows:
“6……………… Ordinarily, it is true that the judgment of a Court binds only the parties and their privies in representations or estate. But he who purchases during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action. Where there is a real and fair purchase without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim pendente lite, nihil innovetur; the effect of which is not to annual the conveyance but only to refer it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them.”
13. Normally, as a public policy once a suit has been filed pertaining to any subject matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.”
17. The Division Bench of Kerala High Court in Rappel Augusthi v. Gopalan Ramakrishna Panicker - AIR 1970 Kerala 188 succinctly explaining the principle of lis pendens held that even a lease is hit by the rule of lis pendens if created during the pendency of a partition suit. In para No. 4, the Division Bench observed as under:
“The lease in favour of the appellant is on the face of it hit by the rule of lis pendens. The defendant to the appellant cannot in any way, adversely affect the right of the party to whom the property was allotted by the final decree in partition to get physical possession of the property because at the commencement of the suit he was entitled to get it. Otherwise it would be impossible to bring any suit to a successful end. The appellant may have had no notice of the pendency of the suit. But the question of notice is immaterial as the rule of lis pendens is based on expediency and not notice. The point hardly admits of elaboration. As against the other parties to the suit the lease is invalid and that being the legal position can they not in execution of the decree ignore it? There is nothing in Act I of 1964 which gives validity to transactions which are invalid under Section 52 of the Transfer of Property Act.”
18. In a previous judgment, the Full Bench of Kerala High Court in Varkey Paily of Parayamthadathil Mutholapuram Kara, Piravom Pakuthv v. Kurian Augusthy of Vattappallil Mutholapuram Kara Elanji - AIR 1967 Kerala 247 dealing with the provisions of Kerala Compensation for Tenants Improvements Act, 1958 held that the purpose of said Act is not to prevent the eviction of ‘quondam tenant’ in wrongful possession but to make a provision of payment of compensation for improvement made by the tenant to the property in a manner consistent with the purpose for which it is let. To quote the relevant portion, the Full Bench held as under:
“Section 4(1) of the Act cannot be interpreted to mean that the right to compensation for improvements made by a tenant springs from the eviction. The right to compensation accrues when the improvement is made and the same, if not already paid, is payable on eviction. The tenant is entitled to be in possession not until compensation is paid, but until eviction in execution of a decree or order of Court. The procedure provided by Sec. 5 ensures that the Court will not evict the tenant until the compensation due to him is paid into Court for payment to him. But, it is clear that the improvements must have been made while the person concerned was a tenant within the meaning of the Act (Whether by definition or by a person of sub-sec. (2) of Sec. 4), not after he had ceased to be a tenant and that the words “on eviction” do not mean that compensation is to be paid for improvements made after his ceasing to be a tenant.
Therefore, a person to whom no compensation is due under sub-sec. (1) at the time of the determination of his (contractual) tenancy is not entitled to remain in possession under that sub-section and does not if he continues in possession, hold as a tenant under sub-sec. (2). Any improvements made by him after the determination will not be improvements made by a tenant and therefore not entitled to any compensation under sub-sec. (1). The purpose of the Act is not to prevent the eviction of quondam tenants in wrongful possession but to make provision for payment of compensation for improvements made by tenants to the property in a manner consistent with the purpose for which it is let.
19. In the decision of Apex court in Pavitri Devi v. Darbari Singh - (1993) 4 SCC 392 relied upon by Mr. G.R Singhvi with regard to Section 30 of the Hindu Succession Act, 1956, the Court held as under:
“A testamentary deposition would mean disposition of the property which would take effect after the death, instead of eo instanti on the execution of the document. A testamentary disposition is generally effected by a will or by a codicil which means an instrument made in relation to a will extending, altering or adding to its disposition and is to be deemed to form part of the will.
Having made demand for partition and laid the suit in that behalf claiming a speciic share in the Mitakshara coparcenary, the mala Hindu stood divided in status from other members of the coparcenary, though partition by metes and bounds had not taken place, on the date of his death; he as a dividing member of the joint family. By operation of Section 30 he was entitled to dispose of his undivided share and the interest in the coparcenary by testamentary disposition.
But a disposition intra vivos by gift of coparcenary property except either with the consent of other coparceners or between coparceners or in exceptional circumstances is void. Since he gift operates eo instanti during the lifetime of the donor, it is not a testamentary succession under Section 30 of the Act. Section 30, therefore, brought about change in law of testamentary disposition of a Hindu coparcener of his interest in coparcenary property governed by Mitakshara school of Hindu Law worked out in accordance with Section 55 read with Schedule III of Indian Succession Act or any other law in force to the above extent. Therefore, the appellant donee acquires no interest by devolution under the gift to represent the interest of the deceased plaintiff under Order 22 Rule 10 of CPC.
Learned counsel submitted that likewise by intra vivos disposition, tena-ncy right also could not be created in favour of applicant and it would be void.
20. The said case law is, however, of little help as it is not a case of disposition of property or disposal of property or a case of gift or a testamentary disposition, which was discussed by the Hon'ble Supreme Court with reference to Section 30 of the Act in the said judgment.
21. However, the principle of lis pendens in Section 52 of the Transfer of Property Act is squarely applicable to the facts of present case and, therefore, the judgments cited above in that regard would govern the case, if at all tenan-cy can be said to have been created in favour of the applicant, which again, it is reiterated, is not found to have been established in the present case.
22. Moreover, since this Court had already directed that the property auctioned by the Auction Committee will be handed over free from all encumbrances to the auction purchaser and vacant possession will be handed over to the auction purchaser and said order has been upheld by Hon'ble Supreme Court and the sale in favour of the highest bidder has already been confirmed by this Court on 21.1.2010, such application of the present applicant Mr. Sumesh Ganchi cannot be entertained at all. The said auction was held with full public notice and the process of auction was going on for last over one year and in respect of this property itself, twice the auction committee advertised the said auction and after following the due procedure tried to fetch the maximum price for the same, the said auction was finalized. At no point of time prior to this the applicant chose to approach an court or froum. Now when the auction has been finalized, he suddenly chose to wake up and create hurdle and nuisance for the auction purchaser without any semblance of right in his favour.
23. The said application, therefore, is found to be wholly misconceived and devoid of merit and same is, therefore, dismissed.
24. Though in the opinion of this Court, such an application amounts to abuse of process of the Court and the Court would have imposed exemplary cost on the applicant, however, taking a lenient view of the matter, the cost is made easy.
25. The Auction Committee shall now proceed to implement the orders of this Court already passed to hand over the vacant possession to the auction purchaser, who shall be free to construct a boundary wall around the said plot of land for preventing any such further encroachment over the said plot and the Auction Committee shall also disburse the auction proceeds in the various stake holders as already directed.
26. The application is accordingly dismissed.
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