Alienation Of Property During Pendency Of Suit Null & Void; Subsequent Purchaser Not A Necessary Or Proper Party: Rajasthan High Court

Justice Sameer Jain, observed,

"The provisions of Section 52 of the Transfer of Property Act and the judgments cited at bar by learned counsel for the respondents, in loud voice, have held that alienation having been made in favour of any party during pendency of the suit, was hit by doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 and hence, the said transaction is nullity, illegal and void and the Hon'ble Apex Court has further held that in the said situation, the application filed by the subsequent purchaser for impleading as necessary and proper party is not tenable."

Essentially, as per the petitioner, he along with proforma-respondents purchased a land from one Rajani Upadhaya and was never informed about pendency of suit for cancellation of sale deed which was executed in favour of the latter.

He alleged that, as per his search, on the date of purchase i.e. 28/09/2018, there was no stay operational and no injunction operating against transfer of the said land and it was on 13/02/2019, he came to know about it. Thereafter, he immediately filed an application under Order 1 Rule 10 CPC, which was rejected on 10.10.2019. Hence, he filed this petition under Article 227 of the Constitution.

The court observed that Section 52 of the Transfer of Property Act has a direct application as the sale deed executed by the petitioner, categorically reflects noting of the Sub-Registrar that on the subject property, a dispute is pending before ADJ (First), Hindaun City under the provisions of Section 39.

The court added that, therefore, the claim of the petitioner that it was on 01/02/2019 that for the first time, he was aware about any pendency of the litigation and stay order, is not tenable.

The court also observed that it is an admitted fact on record that respondent no.4 in the sub-judice matter has marked his presence on 11/01/2018 and still the fact of subject property being in dispute and sub-judice was not reflected in the sale deed.

The court opined that Section 52 of the Transfer of Property Act as well as cases relied by respondents i.e. Bibi Zubaida Khatoon v. Nabi Hassan Saheb (2004), Sarvinder Singh Vs. Dalip Singh (1996) and in Gurmit Singh Bhatia v. Kiran Kant Robinson (2020), the Apex Court have held that alienation having been made in favour of any party during pendency of the suit, was hit by doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 and hence, the said transaction is nullity, illegal and void. The court added that the Apex Court further held that in said situation, the application filed by the subsequent purchaser for impleading as necessary and proper party is not tenable.

After observing the sale deed dated 28.09.2018, wherein a note of pendency of the dispute on the subject matter was reflected, the court rejected the claim of the petitioner that he is a bonafide purchaser and recorded Khatedar and the sale deed is registered and was in knowledge of the matter being sub-judice on 01.02.2019 for the first time.

While dismissing the petition, the court further ruled,

"In the light of the said discussions and perusal of the impugned order dated 10/10/2018, which is a speaking order, this Court is not inclined to interfere under Article 227 of the Constitution of India which can only be invoked when there is an error apparent on record, gross illegality has been committed by the learned Trial Court."

Case Title: Yogesh Goyanka v. Govind and Ors.