Sukumaran s/o ChetTipparambil Gopal v. Kathreena and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945** ## **OP(C) NO. 109 OF 2018** **AGAINST THE ORDER DATED 16/11/2017 IN I.A.NO.3744/2008 IN** ## **O.S.NO.164/1996 OF ADDITIONAL MUNSIFF COURT,IRINJALAKUDA** ## **PETITIONER:** SUKUMARAN S/O CHETTIPARAMBIL GOPALAN,ALATHOOR VILLAGE,MUKUNDAPURAM TALUK. BY ADVS. SMT.S.KARTHIKA SMT.PREETHY KARUNAKARAN ## **RESPONDENTS:** |1|KATHREENA| |---|---| ||W/O MANIKKATHUPARAMBIL FRANCIS,ALATHOOR VILLAGE,MELADOOR| ||DESOM,MUKUNDAPURAM TALUK.| |2|BENNY FRANCIS| ||S/O MANIKKATHUPARAMBIL FRANCIS,ALATHOOR VILLAGE,MELADOOR| ||DESOM,MUKUNDAPURAM TALUK.| |3|SHERLY BABU| ||D/O MANIKKATHUPARAMBIL FRANCIS,ALATHOOR VILLAGE,MELADOOR| ||DESOM,MUKUNDAPURAM TALUK.| |4|SEENA WILSON| ||D/O MANIKKATHUPARAMBIL FRANCIS,ALATHOOR VILLAGE,MELADOOR| ||DESOM,MUKUNDAPURAM TALUK.| |5|SHIBU FRANCIS| ||S/O MANIKKATHUPARAMBIL FRANCIS,ALATHOOR VILLAGE,MELADOOR| ||DESOM,MUKUNDAPURAM TALUK.| |6|ANTHONY| ||S/O.LATE KUNNATH RAPPAI,MELADOOR DESOM,ALATHOOR VILLAGE,| ||MUKUNDAPURAM TALUK.| |7|ROSY| ||D/O.LATE KUNNATH RAPPAI,MELADOOR DESOM,ALATHOOR VILLAGE,| ||MUKUNDAPURAM TALUK.| |8|ITTOOP| ||S/O.LATE KUNNATH RAPPAI,MELADOOR DESOM,ALATHOOR| ||VILLAGE,MUKUNDAPURAM TALUK.| |9|KUNJANNAM| ||D/O.VENNATTUPARAMBIL KUNJIPAILOTH,PARIYARAM| ||VILLAGE,KUTTIKAD DESOM,MUKUNDAPURAM TALUK.| |10|MERY| ||D/O.VENNATTUPARAMBIL KUNJIPAILOTH,PARIYARAM| ||VILLAGE,KUTTIKAD DESOM,MUKUNDAPURAM TALUK.| |11|ROSY| ``` OP(C) NO. 109 OF 2018 ``` ``` 2 ``` ||D/O.VENNATTUPARAMBIL KUNJIPAILOTH,PARIYARAM| |---|---| ||VILLAGE,KUTTIKAD DESOM,MUKUNDAPURAM TALUK.| |12|ELIAMMA| ||D/O VENNATTUPARAMBIL KUNJIPAILOTH,PARIYARAM| ||VILLAGE,KUTTIKAD DESOM,MUKUNDAPURAM TALUK.| |13|JOSE| ||S/O.VITHAYATHIL PAPPU,PARIYARAM VILLAGE,KUTTIKAD| ||DESOM,MUKUNDAPURAM TALUK.| |14|BABY| ||S/O.VITHAYATHIL PAPPU,PARIYARAM VILLAGE,KUTTIKAD| ||DESOM,MUKUNDAPURAM TALUK.| |15|JOHNSON| ||S/O.VITHAYATHIL PAPPU,PARIYARAM VILLAGE,KUTTIKAD| ||DESOM,MUKUNDAPURAM TALUK.| |16|PAULY| ||S/O.VITHAYATHIL PAPPU,PARIYARAM VILLAGE,KUTTIKAD| ||DESOM,MUKUNDAPURAM TALUK.| |17|RAJI| ||D/O.VITHAYATHIL PAPPU,PARIYARAM VILLAGE,KUTTIKAD| ||DESOM,MUKUNDAPURAM TALUK.| |18|SELEENA| ||D/O.VITHAYATHIL PAPPU,PARIYARAM VILLAGE,KUTTIKAD| ||DESOM,MUKUNDAPURAM TALUK.| |19|REJEENA| ||D/O VITHAYATHIL PAPPU,PARIYARAM VILLAGE,KUTTIKAD| ||DESOM,MUKUNDAPURAM TALUK.| |20|CLEETUS| ||S/O THERIYAPARAMBIL SOURI,PARIYARAM VILLAGE,KUTTIKAD| ||DESOM,MUKUNDAPURAM TALUK.| |21|JOSEPH| ||S/O.MANIKKATHUPARAMBIL DEVASSY,PARIYARAM| ||VILLAGE,KUTTIKAD DESOM,MUKUNDAPURAM TALUK.| |22|NALINI SUDHAKARAN VADAKKEDATH VEETTIL| ||PARIYARAM VILLAGE,KUTTIKAD DESOM.| |23|SUBRAN KALATHIL HOUSE| ||PARIYARAM VILLAGE,KUTTIKAD DESOM.| |24|VAIRONY THUPPERY HOUSE| ||PARIYARAM VILLAGE,KUTTIKAD DESOM.| |25|AYYAPPAN THUPPERY HOUSE| ||PARIYARAM VILLAGE,KUTTIKAD DESOM.| |26|NASEER PUTHANVEETTIL| ||PARIYARAM VILLAGE,KUTTIKAD DESOM.| |27|CHANDRAN AMBADAN HOUSE| ||PARIYARAM VILLAGE,KUTTIKAD DESOM.| |28|THANKA VAZHOLITHARA HOUSE| ``` OP(C) NO. 109 OF 2018 ``` ``` 3 ``` - PARIYARAM VILLAGE,KUTTIKAD DESOM. - 29 BABU MOOLAMPARAMBIL HOUSE PARIYARAM VILLAGE,KUTTIKAD DESOM. - 30 MATHAI NELLISSERY HOUSE PARIYARAM VILLAGE,KUTTIKAD DESOM. - 31 BABY PLAKKAL HOUSE PARIYARAM VILLAGE,KUTTIKAD DESOM. - 32 VIJAYAN PERINGADATH HOUSE PARIYARAM VILLAGE,KUTTIKAD DESOM. - 33 OUSEPH PLAKKAL HOUSE PARIYARAM VILLAGE,KUTTIKAD DESOM. - 34 KAISON PALLIPADAN HOUSE PARIYARAM VILLAGE,KUTTIKAD DESOM. - 35 BABU MANIKAITHUPARAMBIL HOUSE PARIYARAM VILLAGE,KUTTIKAD DESOM. - 36 LISY D/O.MANIKIATHUPARAMBIL JOSEPH,PARIYARAM VILLAGE,KUTTIKAD DESOM. - 37 SHIJO S/O.MANIKIATHUPARAMBIL JOSEPH,PARIYARAM VILLAGE,KUTTIKAD DESOM. - 38 PHILOMINA W/O.KANNAMBILLY DEVASSY,PARIYARAM VILLAGE,KUTTIKAD DESOM. - 39 BINDU - D/O.KANNAMBILLY DEVASSY,PARIYARAM VILLAGE,KUTTIKAD DESOM. - 40 BINCY D/O KANNAMBILLY DEVASSY,PARIYARAM VILLAGE,KUTTIKAD DESOM. - 41 POULOSE S/O PLAKKAL ANTHONY,PARIYARAM VILLAGE,KUTTIKAD DESOM. - 42 JOJO S/O.PLAKKAL ANTHONY,PARIYARAM VILLAGE,KUTTIKAD DESOM. - 43 AANI - D/O PLAKKAL ANTHONY,PARIYARAM VILLAGE,KUTTIKAD DESOM. - 44 ROSILY D/O PLAKKAL ANTHONY,PARIYARAM VILLAGE,KUTTIKAD DESOM. - 45 THRESIAMMA D/O.PLAKKAL ANTHONY,PARIYARAM VILLAGE,KUTTIKAD DESOM. - 46 SICILY - D/O.PLAKKAL ANTHONY,PARIYARAM VILLAGE,KUTTIKAD DESOM. - 47 ANEESHA W/O.KALATHIL VEETTIL SUBRAN,ALATHOOR VILLAGE,MUKUNDAPURAM TALUK. ``` OP(C) NO. 109 OF 2018 ``` ``` 4 ``` |48|JINESH| |---|---| ||S/O.KALTHIL VEETTIL SUBRAN,ALATHOOR| ||VILLAGE,MUKUNDAPURAM TALUK.| |49|JILESH| ||S/O.KALTHIL VEETTIL SUBRAN,ALATHOOR| ||VILLAGE,MUKUNDAPURAM TALUK.| |50|SAROJINI| ||W/O.THUPPERI VEETTIL VAIRONY,ALATHOOR| ||VILLAGE,MUKUNDAPURAM TALUK.| |51|VINEETH| ||S/O.THUPPERI VEETTIL VAIRONY,ALATHOOR| ||VILLAGE,MUKUNDAPURAM TALUK.| |52|SARITHA| ||D/O.THUPPERI VEETTIL VAIRONY,ALATHOOR| ||VILLAGE,MUKUNDAPURAM TALUK.| |53|SAVITHA| ||D/O.THUPPERI VEETTIL VAIRONY,ALATHOOR| ||VILLAGE,MUKUNDAPURAM TALUK.| |54|LEELA| ||W/O.AMBADAN CHANDRAN,ALATHOOR VILLAGE,MUKUNDAPURAM| ||TALUK.| |55|VIJEESH| ||W/O.AMBADAN CHANDRAN,ALATHOOR VILLAGE,MUKUNDAPURAM| ||TALUK.| |56|VINESH| ||S/O AMBADAN CHANDRAN,ALATHOOR VILLAGE,MUKUNDAPURAM| ||TALUK.| |57|VINISHA| ||D/O AMBADAN CHANDRAN,ALATHOOR VILLAGE,MUKUNDAPURAM| ||TALUK.| ||BY ADVS.| ||SMT.ANU S NAIR| ||SRI.V.M.KRISHNAKUMAR| THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 13/10/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP(C) NO. 109 OF 2018 ``` ``` 5 ``` ## **CR** ## **JUDGMENT** The main issue involved in the case is pertaining to the application of doctrine of “ _lis pendens”_ engrafted under Section 52 of the Transfer of Property Act and whether it will have any application to a transfer of interest effected during the period of discontinuance of litigation and what would be the legal position when the delay occasioned in that behalf was subsequently condoned. 2. Ext.P2 common order in I.A.No.3170/2009 and 3744/2008 is under challenge by petitioner. He purchased an extent of 1 acre 3 cents of property from one Acharu on 10/04/1980. She is the daughter of one Kuriappan, who claims to be the legal heir of one Rappai. He obtained the property as per document No.371/1957. The actual extent comes to 8 Acres 47 cents. As per the plaint schedule description, it is only a registered holding of 5 Acres 55 cents. A preliminary decree was passed pertaining to the said property. It was challenged before ``` 6 ``` ``` OP(C) NO. 109 OF 2018 ``` the first appellate court as well as this Court by way of a second appeal, in which a decision was rendered on 31/08/1978, by which the suit was dismissed finding that the property is not available for partition. It is after the disposal of the second appeal - S.A.No.278/1974, the property was purchased by the petitioner on 10/04/1980 and it was mutated in his name and improved the property by cultivation and also by constructing a building therein. He had initiated a civil suit - O.S.No.228/2002 for injunction against the alleged attempt of trespass. It is at that time, he came to know about the judgment rendered by the Apex Court, by which the decision rendered by the Division Bench of this Court in the second appeal was set aside. It is submitted that within the time of limitation, nobody has approached the Apex Court challenging the verdict given by the second appellate court. The transfer of title and interest over an extent of 1 acre 3 cents after the disposal of the second appeal according to the petitioner is valid and will not stand vitiated by the application of doctrine of lis pendens as incorporated under Section 52 of the ``` OP(C) NO. 109 OF 2018 ``` ``` 7 ``` Transfer of Property Act. It is inter alia contended that the sale deed executed after the disposal of the second appeal would stand valid and will not stand hit by Section 52 of Transfer of Property Act. Hence, the decree passed by the Apex Court reversing the decision of the second appellate court would not bind on the purchaser, who obtained the property during the interregnum after the expiry of the period of limitation. It is submitted that it is after the disposal of second appeal and also after the expiry of the period of limitation available for challenging the same before the Apex Court, the property was purchased by the present petitioner. If it is so, the transfer of right effected over the property during the interregnum after the expiry of the period of limitation would not come under the purview of Section 52 of the Transfer of Property Act. It is submitted that the plaintiff had approached the Apex Court with a special leave application along with an application for condonation of long delay. Hence, the decision rendered in the SLP reversing the finding of second appellate court and the decree granted thereof though would stand ``` OP(C) NO. 109 OF 2018 ``` ``` 8 ``` merged in the judgment of the Apex Court, it will not have any binding force to a person, who is a subsequent purchaser of the property after the expiry of period of limitation and before the initiation of proceedings for the SLP. The fact that the SLP was allowed by setting aside the decision rendered by the Division Bench of this Court (second appellate court) hence may not have any binding force to the petitioner herein, if the property was purchased during the interregnum after the expiry of the period of limitation and before the initiation of SLP proceedings before the Apex Court. 3. The sum and substance of doctrine of lis pendens is to avoid multiplicity of proceedings and to give finality and effectiveness to the decision rendered by a competent court and to protect the interest of a litigant from being defeated by subsequent transfer, alienation and encumbrances. The very basis of Section 52 of Transfer of Property Act is resting on the principle of “pending lite” and stands for a litigation pending and a deemed pendency during the period of limitation when there is continuity either by way of first appeal or ``` OP(C) NO. 109 OF 2018 ``` ``` 9 ``` second appeal or by SLP etc. In fact, it has got an actual pendency of proceedings and a deemed pendency based on the principle of limitation available to challenge a verdict which was given either at the court of first instance or at the first appellate court or at the second appellate court as the case may be. When there is continuity of proceedings by way of first or second appeal or even in the case of revision and also merger of the decision rendered by inferior court in the decision of superior court, Section 52 of the Transfer of Property Act would stand applicable pertaining to any pendente lite transfer. Necessarily, there is no need to implead the pendente lite transferee to the lite so as to make the verdict binding on them. But the legal position would be different even in the case of merger of the decree of subordinate court in the verdict of the higher or superior court, when there is discontinuance of lite for any period after the expiry of the period of limitation and the transfer of interest during the interregnum would stand not bound by either doctrine of lis pendens or by Section 52 of Transfer of Property Act. Necessarily, such ``` OP(C) NO. 109 OF 2018 ``` ``` 10 ``` transferee during the interregnum should be made as party to further proceedings of the lite, otherwise, the verdict, if any obtained though have the effect of merger will not stand binding on such transferee. In short, the period of limitation given for an appeal or second appeal, when such appeal is preferred within that time will stand deemed to have been initiated within time and will get the sanctity of continuing litigation and pendency for the purpose of Section 52 of the Transfer of Property Act. It is settled by the Apex Court in **Inderchand Jain v. Motilal [(2009) 14 SCC 663]** that an appeal is a continuation of suit and the decision taken by the appellate court relates back unless a contrary intention is shown. Further, a decree passed by the appellate court should be construed to be the decree passed by the court of first instance for all purposes ( **Ramankutty v. Avara [(1994) 2 SCC 642]** ). But the said principle cannot be applied so as to save the laches and failure on the part of litigant in maintaining the legal proceedings live and effective especially for the purpose of Section 52 of Transfer of Property Act and the ``` OP(C) NO. 109 OF 2018 ``` ``` 11 ``` principle of _lis pendens_ . When there is a long lapse of time or long interval rather than what is provided by way of limitation to take up an appeal or second appeal or any other relief within the time of limitation, the principle of continuing/pending litigation cannot be applied to any transfer effected during the interregnum after the expiry of the period of limitation. Necessarily, the transferee, who obtained interest during the interregnum should be made as a party to the further proceedings so as to give rise a binding force on them with respect to the interest which were transferred in their favour during the interregnum, that is to say, after the expiry of the period of limitation available to exhaust the remedy. Section 52 of the Transfer of Property Act is extracted below for reference: ## “ **52. Transfer of property pending suit relating 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 proceedings 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 ``` OP(C) NO. 109 OF 2018 ``` ``` 12 ``` 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.” (emphasis supplied) 4. A conjoint reading of main provision, Section 52 of the Act and its explanation would show the basic principle governing pending litigation and its impact on any transfer of interest over the subject of lite. The said principle can be applied only when a litigation is pending pertaining to the subject matter. The term “pending litigation” stands for an actual existence of a _“lite_ ” between the parties by way of an appeal, second appeal, revision, review etc. or even an application for getting leave of the court or an application to condone the delay, besides the deemed pendency for the period of ``` OP(C) NO. 109 OF 2018 ``` ``` 13 ``` limitation available when the remedy was brought up within the period of limitation. When there is failure in exhausting the remedy by way of appeal or otherwise within the time of limitation, the proceedings which were subsequently initiated with an application to condone the delay cannot be brought under the purview of a deemed pending litigation which is available only to the period of limitation and not thereafter. 5. At this juncture, it is relevant to notice that earlier this Court in **Lity v. Vasu (2013 (1) KLT 699)** had laid down the legal position that rule of lis pendens will not apply to a case where no action was taken either to re-admit the suit or appeal, which was dismissed for default or to challenge the judgment and decree by way of an appeal within the time specified by the Limitation Act. 6. At this juncture, the learned counsel for the petitioner pressed for a remand of the matter so as to adduce evidence to show the actual date of initiation of SLP proceedings before the Apex Court and the date of transfer and its nature. Hence the issue is left open for ``` OP(C) NO. 109 OF 2018 ``` **==> picture [14 x 7] intentionally omitted <==** consideration by the trial court as requested by the learned counsel for the petitioner. The impugned order will stand set aside. The matter is remanded back to the trial court for fresh disposal. The parties shall appear before the trial court on 18/12/2023. The O.P.(C) will stand allowed in part accordingly. Sd/- **P.SOMARAJAN JUDGE** ``` SV ``` ``` OP(C) NO. 109 OF 2018 ``` ``` 15 ``` ## **APPENDIX OF OP(C) 109/2018** PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 18.3.1998 PASSED BY THE HON'BLE SUPREME COURT OF INDIA IN C.A.NO.903 OF 1980 EXHIBIT P2 TRUE COPY OF THE ORDER DATED 16.11.2017 IN I.A.NO.3744/2008 IN O.S.164 OF 1966 BEFORE THE ADDITIONAL MUNSIFF COURT,IRINJALAKUDA. /True copy/ PS to Judge