As far as the second substantial question of law raised before this Court is concerned I need not enter in that controversy as the defendant No. 4- the corporation had virtually waived the objection of notice before the filing of the suit under section 487 of the B.P.M.C. Act as is reflected in the discussion of the learned trial Court at the time of answering issue No. 7. The trial Court has negatived the issue of maintainability of the suit in the absence of notice under section 487 having been preceded as the learned Advocate for the defendant No. 4 did not dispute the position that it was only a formal party and no relief of any nature was sought against the defendant No. 4 corporation. The trial Court has, therefore, held that the suit was not bad for want of such a notice under section 487 of the said Act. Even at the stage of appeal the learned Advocate for the defendant No. 4 Corporation had clearly waived and conceded the point.
6. Besides, no act or omission of the defendant no. 4-corporation was being challenged by the plaintiff in the suit, and therefore, no notice under section 487 of the Act was necessary. It was impleaded as a formal party in the sense that the suit plot originally belonged to the defendant No. 4 Corporation and it had transferred or allotted by sale deed dated 28-9-1975 to the father of defendant Nos. 1 and 2 and the husband of the defendant No. 3. For the sake of convenience section 487(a) reproduced below:---
"No suit shall be instituted against the corporation or against the Commissioner, or the Transport Manager, or against any Municipal Officer or servant in respect of any act done or purported to be done in pursuance of execution or intended execution of this act or in respect of any alleged neglect or default in the execution of this Act.........."
It is clear from the section no suit can be instituted against the corporation or against the Commissioner or the Transport Manager or against any Municipal Officer or servant in respect of any act done or purported to be done or in respect of alleged neglect or default in execution of this Act. Without prior notice having been given. In the present case the plaintiff was not aggrieved by any act or omission or include on the part of the corporation. The plaintiff had no grievance against the defendant No. 4 corporation and was not seeking any relief against it, and therefore, in my opinion it was not necessary as condition precedent to issue a notice under the said provision before filing of the suit for the reliefs which he was seeking against the other defendants.
IN THE HIGH COURT OF BOMBAY
Second Appeal No. 213 of 1985
Decided On: 01.02.2002
Godabai Mahadu Shinde,
Vs.
Narayan Tollaplpa Shinde,
Vs.
Narayan Tollaplpa Shinde,
Hon'ble Judges/Coram:
R.J. Kochar, J.
R.J. Kochar, J.
Citation: 2002(3) BOM CR 454
1. The appellant is the original defendant No. 5 in the suit and she was aggrieved by the judgment and order dated 31-7-1980 passed by the trial Court. She preferred a civil appeal against the said judgment and order of the trial Court before the District Court at Solapur. The Appeal Court by its order dated 4-8-1984 had dismissed the said appeal. The appellant is before this Court with the above second appeal against the concurrent findings recorded by both the courts below. The second appeal is being contested only between the defendant No. 5, who is the appellant and the original plaintiff, who is the respondent No. 1. No other parties are contesting the appeal. At this stage itself I may state that the trial Court had proceeded ex parte against the defendant Nos. 1 and 2 as they did not appear to contest the suit. The defendant No. 3 alone had contested the suit at the trial stage along with defendant Nos. 4 and 5. Even before the Appeal Court the defendant Nos. 1 and 2 again did not contest and the appeal was contested by the plaintiff and the defendant No. 3 and the defendant No. 4.
2. During the pendency of the second appeal the appellant had expired and her legal heirs have been brought on record. Similarly the respondent No. 1 the original plaintiff had also expired and his legal heirs have also been brought on record. By an order dated 14-11-1996 passed by Additional Registrar the appeal came to be dismissed against the respondent Nos. 2 and 3 the original defendant Nos. 1 and 2 for non-prosecution.
3. For the sake of convenience the parties would be referred to as they were described in the original suit before the trial Court.
4. This second appeal was admitted on 6-8-1995 and the order passed at that time reads as under.
"Admitted as the substantial questions of law are:
(1) appellant being a purchaser for value without notice;
(2) and validity of defendant 4 being sued without notice proceeding the suit."
5. As far as the second substantial question of law raised before this Court is concerned I need not enter in that controversy as the defendant No. 4- the corporation had virtually waived the objection of notice before the filing of the suit under section 487 of the B.P.M.C. Act as is reflected in the discussion of the learned trial Court at the time of answering issue No. 7. The trial Court has negatived the issue of maintainability of the suit in the absence of notice under section 487 having been preceded as the learned Advocate for the defendant No. 4 did not dispute the position that it was only a formal party and no relief of any nature was sought against the defendant No. 4 corporation. The trial Court has, therefore, held that the suit was not bad for want of such a notice under section 487 of the said Act. Even at the stage of appeal the learned Advocate for the defendant No. 4 Corporation had clearly waived and conceded the point.
6. Besides, no act or omission of the defendant no. 4-corporation was being challenged by the plaintiff in the suit, and therefore, no notice under section 487 of the Act was necessary. It was impleaded as a formal party in the sense that the suit plot originally belonged to the defendant No. 4 Corporation and it had transferred or allotted by sale deed dated 28-9-1975 to the father of defendant Nos. 1 and 2 and the husband of the defendant No. 3. For the sake of convenience section 487(a) reproduced below:---
"No suit shall be instituted against the corporation or against the Commissioner, or the Transport Manager, or against any Municipal Officer or servant in respect of any act done or purported to be done in pursuance of execution or intended execution of this act or in respect of any alleged neglect or default in the execution of this Act.........."
It is clear from the section no suit can be instituted against the corporation or against the Commissioner or the Transport Manager or against any Municipal Officer or servant in respect of any act done or purported to be done or in respect of alleged neglect or default in execution of this Act. Without prior notice having been given. In the present case the plaintiff was not aggrieved by any act or omission or include on the part of the corporation. The plaintiff had no grievance against the defendant No. 4 corporation and was not seeking any relief against it, and therefore, in my opinion it was not necessary as condition precedent to issue a notice under the said provision before filing of the suit for the reliefs which he was seeking against the other defendants. What the plaintiff had prayed for was the specific performance of the contract or the specific performance of the agreement of registered sale deed entered into between the plaintiff and the defendants 3 and defendant Nos. 1 and 3 respectfully. There were two agreements entered into between the parties, one was dated 18-1-1972 and the second was 10-4-1972. According to the plaintiff, the defendant No. 3 had not performed her part of the agreement for sale of the suit plot to the plaintiff while the plaintiff was ready and willing to perform his part of the contract. The plaintiff had additional and serious grievance against the defendant No. 3 as the defendant No. 3 had entered into another agreement with the defendant No. 5 during the pendency of the suit and had again sold to the defendant No. 5 the same suit plot which was earlier agreed to be sold to the plaintiff under the aforesaid two agreements. It is therefore crystal clear that the entire suit is between the plaintiff and the defendant Nos. 1, 2, 3 and 5. According to me, therefore, both the courts have rightly held that suit was not bad for want of prior notice to the defendant No. 4 corporation as the entire lis was between the plaintiff and the other defendants and not with the corporation. I have therefore, answered the second substantial question of law as above.
7. Now we turn to the first substantial question of law for which the second appeal was admitted. The said substantial question of law has been formulated in ground No. 22 as under:
22. The lower courts therefore, ought to have held that the defendant No. 5 had no knowledge of the plaintiff's right and that therefore the defendant No. 5 was bona fide purchaser of the suit plot without and notice of plaintiff's right.
It was the case of the plaintiff before the trial Court that the defendants No. 1, 2 and 3 have agreed to sell the suit property for consideration of Rs. 1600/- to the plaintiff and they had received an earnest money of Rs. 600/- from the plaintiff. This agreement was entered into between the parties on 10-1-1972. According to the plaintiff, the said agreement was registered on 1-1-1972 but the defendants did not remain present at the time of execution of the said agreement. The plaintiff has further pleaded that the plaintiff and the defendant No. 3 had entered into another agreement of sale on 10-4-1972 which was registered on 12-3-1973 before Sub-Registrar, Solapur but the defendant Nos. 1 to 3 did not remain present and they did not perform their part of the contract. The plaintiff filed the present suit against the defendant Nos. 1, 2 and 3 for specific performance of the said agreements. It appears that during the pendency of the suit he came to know that defendant Nos. 1 to 3 had sold the suit property to defendant No. 5 who was their near relative, he impleaded the said subsequent purchaser of the suit property as defendant No. 5. The plaintiff has therefore, prayed for specific performance of the agreements from the defendant Nos. 1, 2 and 3 and have also prayed for alternatively refund of the earnest money, interest by way of damages with future interest and costs.
8. As I have already observed the defendant Nos. 1, 2 and 3 were proceeded ex parte as they were not interested. The defendants 3, 4 and 5 filed their written statement to contest the suit. The defendant No. 3 denied the claim of the plaintiff and pleaded that it was wholly the loan transaction and that she was an illiterate old lady her signature was obtained by the plaintiff without explaining anything to her. It was also alleged by her that she had signed the agreement dated 18-4-1972 under threat and force. She had also stated that the defendant No. 4 the corporation had not transferred the suit property in the name of her deceased husband as he had not paid all the installments towards the purchase price of the said suit land, and therefore, plaintiff had no legal right to get sale deed executed in respect of the said suit plot for which the said defendants had no perfect title. The suit was mainly contested by the defendant No. 5. According to her, the defendant No. 4- the Corporation had executed on 5-9-1973 a sale deed in favour of the defendant Nos. 1 and 2 as the legal heirs of the deceased and they became the owners of the suit plot on 5-10-1973 and that the defendant No. 3 had never acquired the ownership of the suit property. According to the defendant No. 5 she took possession of the suit property as a lessee in the year 1971 and thereafter she had executed an agreement of sale on 13-3-1972 with the defendant Nos. 1 and 3. She had given a public notice in the local newspaper on 25-7-1972 in respect of the agreement of sale and about the possession of the suit property by the defendant No. 5. According to the defendant No. 5 plaintiff did not take any action pursuant to the said notice. The said sale deed was a registered document, and therefore, it was a constructive notice. It was also pleaded by the defendant No. 5 that she was impleaded by amendment in the suit on 13-4-1978, and therefore, the suit was barred by limitation. According to her, she had no prior notice about the sale transaction between the plaintiff and the defendant Nos. 1 to 3 and that she had no notice of the pendency of the suit. She was therefore a bona fide purchaser of the suit property for valuable consideration without notice. According to her, therefore the suit for specific performance was not tenable and that the defendant No. 5 was not liable for the amount if any which was given by the plaintiff to the defendant Nos. 1 to 3.
9. On the basis of the pleadings of the parties the learned trial Court framed as many as 15 issues and answered the same after recording evidence of the parties. The plaintiff had adduced his own evidence, oral and documentary, while the defendant Nos. 1 and 2 did not appear and did not contest the suit. The defendant Nos. 3, 4 and 5 had contested the suit. The defendant No. 3 however, did not enter into witness box in support of her contention. The defendant No. 5 examined herself in support of her defence.
10. The trial Court has positively come to a conclusion of the fact that the defendant No. 3 did not prove that the agreements of sale were the money lending transaction and were nominally got executed by way of security. The learned trial Judge has held against the defendant No. 3 on this issue as there was nothing on record adduced by the defendant No. 3 to show that the two agreements of sale were only money lending transactions and were not for sale of the suit land. The trial Court also negatived the contention of the defendant No. 3 that the agreement dated 18-1-1972 was got executed from her by fraud and misrepresentation. The defendant No. 3 having made this serious allegation ought to have atleast entered in the witness box to substantiate the said serious allegation of fraud, coercion and misrepresentation on the part of the plaintiff. The trial Court also held against the defendant No. 3 that the agreement dated 10-4-1972 was got executed under coercion by the plaintiff from her and her son. The trial Court has answered the issue in favour of the plaintiff that the defendant Nos. 1 and 2 and 3 had agreed to sale the suit plot for Rs. 1600/- and by receiving a sum of total Rs. 800/- executed the sale deeds on 18-1-1972 and 10-4-1972. The trial Court has further accepted the plea of the plaintiff that he had proved that he was ready and willing to perform his part of the contract and he had deposited the balance amount in the trial Court. The learned Judge also negatived the contention that the suit was bad for want of notice under section 487 under B.M.C. Act against the defendant No. 4 and that the suit agreements were not hit for want of prior permission of defendant No. 4. The trial Court further held that the plaintiff was entitled to specific performance of the suit contracts and possession of the suit plot. The alternative prayer of the plaintiff however did not survive as the trial Court had ordered specific performance of the contract in favour of the plaintiff. The trial Court had accordingly decreed the suit. As far as the contentions of defendant No. 5 are concerned the trial Court has held that her contention that she was a bona fide purchaser for a value without notice of the agreements of sale dated 18-1-1972 and 10-4-1972 the trial Court was not tenable as the sale dated 16-10-1973 executed by the defendant Nos. 1 and 2 in favour of the defendant No. 5 was during the pendency of the suit and on the basis of the doctrine of lis pendent binding on the defendant No. 5. The contention of the defendant No. 5 that the suit was barred by limitation was also negatived. The trial Court had held that the defendant Nos. 1, 2 and 3 had imperfect title at the time of execution of the agreements of sale dated 18-1-1972 and 10-4-1972. The trial Court however, further held that subsequently in view of the agreement of sale dated 28-9-1973 the sale of the suit plot to the defendant Nos. 1 to 3, the earlier imperfect title had became a lawful and perfect title. The learned Judge has held that by operation of section 43 of the Transfer of Property Act, the plaintiff was entitled to specific performance of the suit agreement by virtue of the provisions of section 43 of the Act and section 18 of the Specific Relief Act. The learned trial Court therefore considering the entire evidence on record has found as a matter of fact that the plaintiff was entitled to get his suit decreed and he accordingly decreed the suit with costs. The learned Judge has also directed the defendant Nos. 1, 2 and 3 to apply for necessary permission for sale in favour of the plaintiff to defendant No. 4 Corporation and that the Corporation should accord such permission and thereafter the defendant Nos. 1, 2 and 3 should execute a sale deed in favour of the plaintiff after receipt of the permission from the defendant No. 4. On such permission and after such sale deed the defendant No. 5 was directed to hand over the possession of the property to the plaintiff. The plaintiff was held to be entitled to the future mesne profits as provided under Order XX, Rule 12(1)(c) of the Code of Civil Procedure.
11. The defendant No. 5 carried the matter in appeal before the District Court challenging the judgment and order of the trial Court on various grounds. The learned lower Appellate Court considered the pleadings of the parties before the trial Court and also considered the evidence on record and the contentions of the parties. The learned Appellate Court framed as many as seven points for determination on the basis of the record. The learned Appellate Court answered all the points and recorded its reasons therefore .The learned Appellate Court held affirmatively that the plaintiff had proved that the defendant Nos. 1 to 3 had agreed to sell the suit property to him and that the two agreements of sale were executed on 18-1-1972 and 10-4-1972 between them. The Appellate Court also held that on the aforesaid dates the defendant Nos. 1, 2 and 3 had imperfect title to the suit property. The Appellate Court did not accept the contention of the defendant No. 5 that she was bona fide purchaser for value without notice of the agreements of sale dated 18-1-1972 and 19-4-1972. The Appellate Court has also held that the subsequent purchase of the suit property by the defendant No. 5 under the agreement dated 16-10-1973 cannot be effected on the principle of lis pendens. On the point of limitation as well as on the point of maintainability of the suit the Appellate Court agreed with the findings of the trial Court. Finally also the Appellate Court concurred the findings and conclusions recorded by the trial Court in every respect with a slight modification that the defendant No. 5 should join in the conveyance so as to pass on the title which was with the defendant No. 5 to the prior transferee i.e. the plaintiff.
12. I have considered the entire pleadings, evidence and judgments of both the lower courts closely. I am not able to find any error of law or any error of fact in the findings recorded by both the Courts below. From the judgments of both the courts below it is very clear that both the Courts have scrutinised and examined the facts on record minutely and have given cogent and sufficient reasons for the conclusions and findings recorded by both of them concurrently. The facts which emerged from the record are very clear. The plaintiff and the defendant Nos. 1 to 3 had entered into two agreements of sale of the suit plot. The plaintiff had made part payment as agreed in the agreements but the defendants 1 to 3 failed to perform their part of the contract with the plaintiff where after the plaintiff was compelled to issue a notice and to file the present suit for a direction to them to perform their part of the contract. The dishonesty of the defendants 1 to 3 is clear from record that knowing very well that they had entered into the said two agreements of sale of the very same plot to the plaintiff they again entered into a third agreement with the defendant No. 5 for the sale of the suit plot for a price. The defendants very well knew that the plaintiff had filed a suit against them for specific performance of the said agreements. During the pendency of the suit the said defendants had entered into an agreement with the defendant No. 5 for sale of the suit plot to him, which they knew that they had already sold the same to the plaintiff under the registered agreement. Both the Courts therefore have rightly concluded that the plaintiff and the defendant Nos. 1 to 3 had entered into an agreement for sale and that the defendant Nos. 1 to 3 had failed to perform their part of the agreement. It is further significant to note that the plaintiff was not only ready and willing to perform his part of the agreement even before filing of the suit which he had indicated in the notice which was refused to be received by the said defendants. The plaintiff had deposited the balance amount of the payment as part of his agreement in the Court. This conduct on the part of the plaintiff clearly proves that he was always ready and willing to perform his part of the agreement and he had already deposited the balance amount under the registered sale deed for sale of the suit plot by the defendant Nos. 1 to 3 to the plaintiff. During the pendency of the suit it was not at all legal and proper for the defendant Nos. 1 to 3 to have entered into an agreement of sale of the same suit plot to the defendant No. 5. The trial Court as well as the Appellate Court have negatived the contention of the defendant No. 5 in respect of being a bona fide purchaser for value without notice of the agreements of sale following the legal position established by the case law under section 52 of the Transfer of Property Act. Both the Courts have held that it was not necessary that transferee should have notice of the suit. The principle of lis pendence is obviously based not on a doctrine of notice but on expediency and equity. Accordingly, both the courts have held that the defendant No. 5 being the transferee of the suit plot pendent lite is a representative in interest of the party from whom he got the transfer and that such transferee is not entitled to raise any claim against the decree or order that might ultimately would be passed in the action. In these circumstances it has been rightly held by both the courts that the question of defendant No. 5 being a bona fide purchaser for value without notice of the agreements of sale dated 18-1-1972 and 10-4-1972 did not arise. It was not for the defendant No. 5, the transferee of the suit plot, but it was for the defendants 1, 2 and 3 not to have entered into the agreement of sale of the very same plot with the defendant No. 5. It was the equitable doctrine that neither party to a suit can alienate the property in the suit pending the suit so as to defeat the rights of the other party. In addition to above both the Courts have factually disbelieved the version of the defendant No. 5 that she was unaware of the sale transaction of the same suit plot between the plaintiff and the defendant Nos. 1 to 3 as the defendant No. 3 and the defendant No. 5 both were closely related to each other and both were residing on the very same suit plot. Even on this count both the courts have disbelieved the version of the defendant No. 5 that she was not knowing and had no notice of the sale transaction between the plaintiff and the defendant Nos. 1, 2 and 3. Even the plaintiff was residing nearby and therefore, both the courts have concluded that it was not believable that the plaintiff would not have informed to defendant No. 5 that he had purchased the suit plot from the defendants Nos. 1 to 3. Both the courts have therefore imputed constructive knowledge on the defendant No. 5. Both the courts below have considered minutely the reasonable preponderance of probabilities and have held against the defendant No. 5.
13. In the aforesaid circumstances I do not find any illegality, perversity or infirmity in the concurrent findings recorded by both the courts below. The substantial question of law raised by the defendant No. 5 as the appellant in this appeal have been rightly and squarely answered by both the courts below and I do not find anything wrong with the said conclusions. There is absolutely no merit and substance in the second appeal and therefore the same is dismissed with costs.
14. It needs no clarification that since I am dismissing the second appeal in its entirety the order passed by the lower Appellate Court is confirmed.
Certified copy is expedited.
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