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TMI Blog1982 (12) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... tgagee rights in the disputed property were attached in execution of the decree obtained by Gordhanlal and others and were sold at an auction sale. Gordhanlal. Pannalal and Shankarlal decree-holders purchased the mortgagee rights of Moolchand in the aforesaid property and a sale certificate was issued in favour of the auction-purchasers. On November 27, 1943, Gordhanlal and others, who had purchased the mortgagee rights in the disputed property were put into possession of the said property. Pannalal and Shankerlal, auction purchasers, subsequently sold the mortgagee rights by an oral sale on November 19, 1945 to Sohanlal who is the son of Chhaganlal. A sale-deed in respect of the aforesaid transfer was subsequently executed on April 6, 1950, and the same was duly registered and thereby the mortgagee rights in the disputed property were transferred to Sohanlal. After the death of Sohanlal, his sons Damodar and Naresh Chandra, sold the entire property in dispute to Hiralal on August 21, 1957 by executing a sale deed in his favour. Sayar Bai appellant is the widow of Hira Lal. 3. One fact which requires specific mention here is that Shri Kishan mortgagor filed a suit on May 31, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d case it has been held that unless there were exceptional circumstances the Court should ordinarily allow the assignee or the transferee to take part in the further proceedings in the suit and allow him to take up the further prosecution of the case in his hands, if he so likes, in order to protect his newly acquired interest in the property, which was the subject matter of the suit, but it has not been held in Bhagwatilal's case that if the Court refuses to allow an application filed under Order 22, Rule to C.P.C. by the assignee or transferee pendente lite, to become a party defendant in the suit, then such a transferee or assignee shall not be bound by the decree passed in the suit or that the provisions of Section 52 of the T. P. Act would not be applicable to such a transferee. It would have been more appropriate for the trial Court to allow Sohanlal to take part in the further proceedings in the suit, when he desired to become a party defendant after purchasing the mortgagee rights in the suit property. But Sohanlal does not appear to have pursued the matter further when his application for being added as a party defendant in the suit was rejected and he apparently felt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was observed by their Lordships of the Supreme Court in the aforesaid case that if there was a valid charge or mortgage on a property, the same does not vanish because the property becomes the subject matter of a subsequent suit. In that case a valid charge subsisted on the basis of a loan on the land, which became subject matter of a subsequent suit for partition, by virtue of the provisions of the Land Improvement Loans Act. In this context their Lordships of the Supreme Court observed as under (at p. 574) :-- The liability of the land to be sold under Section 7(c) of the Act was a preexisting charge and that subsisted as from the date of the loan. This was not affected by the institution of the suit for partition. This charge could be enforced by the State notwithstanding the pendency of the partition suit. No decree in the partition suit could have affected the charge. Therefore, if the State has sold only the property in respect of which loan was taken, the purchaser-defendant No. 12 is not prejudiced by the principle of lis pendens. 6. A copy of the judgment of the Mahendra Sabha is oh the record and it shows that Shankerlal and Pannalal merely obtained a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the decision of the Madras High Court in Natesa Thevar v. Narayanswami Padayachi, AIR 1952 Mad 844, in support of the aforesaid contention. It was held in that case that the sale of both the mortgagee's and mortgagor's interest, in execution of the decree against the mortgagee and the dispossession of the mortgagee from the mortgaged properties in consequence thereof could be adverse to the mortgagor also, if the mortgagor has knowledge of the hostile acts or of adverse possession. It was observed by their Lordships that Article 144 of the Limitation Act was applicable to cases where the mortgaged properties were sold as absolute properties of the mortgagee, without any limitation on the interests thus sold and subsequently the vendee enjoyed the properties in his own right and to the knowledge of the mortgagor , beyond the prescribed period. It was argued by the learned counsel that Hiralal had filed an application for making constructions before the Municipal Council, Udaipur on the basis of the sale effected in his favour and in those proceedings Sri Kishan filed objections on the ground that the properly belonged to him and not to Hiralal. It was argued by learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sold by the mortgagee in the mortgaged property and if the transferee conies into possession or continues to remain in possession of the mortgaged property as the full owner thereof to the knowledge of the mortgagor, then the period of limitation for filing a suit for redemption or possession would be reduced from 60 years to 12 years, as the transferee would become owner of the property by adverse possession on the expiry of 12 years. But the aforesaid principle laid down by their Lordships of the Supreme Court has no application to the facts of the present case, because of the fact that a suit for possession by redemption had already been filed by Shrikishan in the year 1941, to which Hiralal's vendors, Damodar and Rameshchandra were parties. 9. Similarly, a reference was also made by the learned counsel for the appellant to the decision of their Lordships of the Supreme Court in Rajendra Singh v. Santa Singh AIR 1973 SC 2587. In that case, a decree for possession was passed in favour of the plaintiff earlier but thereafter the defendants had illegally and forcibly obtained possession of the disputed property and continued to remain in possession thereof for a period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in respect of the property in dispute. Section 52 of the Transfer of Property Act is not intended to strike at the running of the period of limitation in case of taking of illegal or forcible possession of the property, which is the subject matter of litigation by a stranger because such possession does not confer any immediate right on the trespasser. It is only after the expiry of the period provided in the Limitation Act that the right of the trespasser could ripen into that of an owner, during which period the original or lawful owner has ample opportunity to institute a suit for obtaining redress against the wrongdoer or trespasser. As a matter of fact, the doctrine of lis pendens is intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of the Court, when a dispute in respect of any right or interest, in immovable property is pending. A party to the litigation cannot by private dealings remove the subject matter of litigation from the ambit of the court's power to decide a pending dispute or to frustrate the decree that may be passed in the suit. It could be effective against such third parties who are dealing with parties to the pendin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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