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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 2467 OF 2005

Jagan Singh (Dead) Through LRS. ...   Appellant

Versus

Dhanwanti & Anr. ...         Respondents

J U D G  E M E N T

H.L. Gokhale J.   

This appeal under Article 136 of the Constitution of India raises the  

question as to whether a bhumidhar having a right to transfer his land under U.P.  

Zamindari  Abolition  and Land Reforms Act,  1951 (the  U.P.  Act  for  short),  while  

bequeathing his bhumidhari right in favour of a beneficiary can impose a restriction  

on the right of the legatee to make it a life estate, and if he does so whether the  

interest  of  the  holder  of  a  life  estate  shall  continue to  remain  so  restricted,  or  

whether  such  a  legatee  can  claim  his  interest  to  be  unrestricted  to  affect  the  

bequest in favour of other beneficiaries. The second question is with respect to the  

application  of  doctrine  of  ‘lis  pendens’  in  the facts  of  the present  case.   These  

questions have arisen in the present appeal which seeks to challenge the judgment  

and order dated 18.11.2004 passed by a learned Single Judge of Allahabad High  

Court  dismissing the Second Appeal No.982 of 2004 filed by the appellant herein

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(original plaintiff).  By dismissing this Second Appeal, the learned Single Judge has  

confirmed the judgment and order dated 28.7.2004 passed by the Additional District  

Judge, Bijnaur in Civil Appeal No.97 of 2002 whereby the learned Additional District  

Judge has dismissed the said appeal of the appellant herein against the judgment  

and order dated 13.2.2002 passed by the Civil  Judge, Junior Division, Najibabad  

which dismissed the Original Suit No.121 of 1994 filed by the appellant.      

Facts leading to this present appeal are as follows:-

2. One Umrao Singh S/o Jiraj Singh, R/o village Sarkara Khed in Tehsil  

Najibabad, District Bijnaur, U.P. owned certain parcels of bhumidhari lands which  

are covered under the provisions of the above U.P. Act.   He executed a will  on  

30.12.1985 concerning these lands.  He stated in the will that he had no issues, and  

had a younger brother by name Jagan Singh (the appellant herein) who was looking  

after  him.  The will  further  stated that  during the testator’s  life  the testator  will  

remain owner in possession of the said property with all the rights.  However after  

his  death,  barring  a  plot  bearing  No.140-8-10-19,  Jagan Singh will  become the  

exclusive owner of all his movable and immovable properties.  As far as this plot No.  

140-8-10-19 is concerned, Umrao Singh stated in his will as follows:-

“My wife Dhanwanti R/o village Sarkara Khera will be the owner   of my share of plot No. 140-8-10-19 but the restriction would be that  she would not have any right to transfer the said property that would  pass on to her, but this restriction will not apply to Jagan Singh.”

3. It is the case of the appellant that he has been cultivating this plot No.  

140-8-10-19, and further that he and the above referred Dhanwanti (the    first  

respondent herein) each took half share of the crop therefrom.  It was also his case

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that Dhanwanti was not the lawfully married wife of Umrao Singh, and after the  

death of Umrao Singh she had planned to dispose of the above plot of land in favour  

of  one  Ghasita  Ram  S/o  Ram  Chander  Singh  (the  respondent  No.2  herein).  

According to the appellant, she did not have such right, and therefore he filed the  

above suit for permanent injunction to restrain her from disposing of this particular  

parcel of land either to this Ghasita Ram or otherwise.

4. The respondent No.1 defended the suit, and contended that she was a  

lawfully married wife of Umrao Singh. She submitted that the will was a forged one,  

and  that  the  defendant  No.2  had no  connection  with  this  parcel  of  land.   The  

defendant No.2 contended in his written statement that he had been wrongfully  

joined in the suit, and that the respondent No.1 herself continued in possession of  

the land.

5. The learned Civil  Judge who tried the suit,  framed the issue as to  

whether the appellant was entitled to prohibit the respondent No.1 from selling half  

share of the disputed land as claimed by him.  The learned Judge held that the will  

was a duly executed one, and also noted that it had been registered.  He however  

held that the respondent No.1 will have the benefit of the provision of Section 14 (1)  

of the Hindu Succession Act, 1956, and in view thereof the property possessed by  

the respondent No.1 will have to be held as her wholly owned property, and that  

she  was  not  a  restricted  owner.   The  learned  Judge  declined  to  accept  the  

submission on behalf of the appellant that the right of the respondent No.1 in the  

land was only on account of the will made by deceased Umrao Singh.  He declined

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to accept that her right was restricted under Section 14 (2) of the Hindu Succession  

Act, 1956, and dismissed the suit.

6. The appellant carried the matter in appeal, but the learned Additional  

District Judge also dismissed the appeal.  Thereafter, when the appellant filed the  

Second Appeal to the High Court, the High Court dismissed the same by holding that  

no substantial  question of law arose in the matter. The learned Judge held that  

under section 152 of the U.P. Act a bhumidhar had a right to transfer his property,  

and such right was subject only to the restrictions contained in the Act as provided  

in section 152 (1) itself.  The learned High Court Judge referred to Section 169 (2)  

of the U.P. Act, and observed that the said Sub-section which restricted the right of  

a female bhumidhar to bequeath her holding by will  has now been deleted. The  

learned Judge went on to hold that the right to transfer cannot be restricted either  

by contract or by a will of a tenure holder, and that the restriction contained in the  

will that the legatee would not have a right to transfer the property was repugnant  

to the incidents of a bhumidhari tenure under the U.P. Act.

7.  The present  appeal  raises principally  two questions of law.  Firstly,  

whether section 169 of the U.P. Act prohibits a bhumidhar with transferable rights  

from imposing a restriction on the rights of a legatee by limiting the bequest to the  

life time of the legatee.  Secondly, whether such a restricted bequest is permissible  

in  view of section 14 (2) of  the Hindu Succession Act,  1956.   This  Court  while  

admitting this Civil Appeal on 4.4.2005 passed the following order:-

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“Leave granted. Until further orders, status quo as it exists today shall be   

maintained.  Let the original record be requisitioned.”

Consideration of the rival submission

8. The learned counsel for the appellant submitted that the Courts below  

had completely misdirected themselves.  He pointed out that the present bequest by  

Umrao Singh would be clearly covered under Sub-section (1) of Section 169 of the  

U.P. Act, read with Section 14 (2) of Hindu Succession Act, 1956, and that the right  

of a bhumidhar to deal with his own property had not been taken away in any way.  

Besides, this provision had already been interpreted in the judgments of this Court.  

The counsel for the respondents on the other hand submitted that all the courts  

below had taken a consistent view in this matter, and this Court should not interfere  

therein.   

Whether  the  bequest  in  favour  of  respondent  No.1  created  a  

restricted estate?

9. For deciding the issue raised in this appeal, we may refer to Section  

169 of the U.P. Act which reads as follows:-

“169.  Bequest  by  a  bhumidhar  –  (1)  A  [bhumidhar  with  transferable rights] may by will bequeath his holding or any part thereof,   except as provided in [sub-section(2-A)].

(2) [***]

[(2-A) In relation to a [bhumidhar with transferable rights] belonging to a  Scheduled Caste or Scheduled Tribe,  the provisions of  [sections 157-A   and 157-B] shall apply to the making of bequests as they apply to transfer   during lifetime.]

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(3)  Every  Will  made  under  provision  of  sub-section  (1)  shall,   notwithstanding anything contained in any law, custom or usage, [be in  writing, attested by two persons and registered].

(*** deleted by U.P. Act 30 of 1975.)

If we read this Section, it is very clear that Sub-section (1) permits a  

bhumidhar to bequeath his holding or any part thereof by making a will. Sub-section  

(3) however requires that this has to be done in writing, and the will  has to be  

attested by two persons and it has to be registered.  The only restrictions on this  

right are those provided under Sub-section (2), which in turn refers to sections 157-

A and 157-B of the said Act.  Section 157-A provides that in relation to a bhumidhar  

belonging to a Scheduled Caste, such land cannot be transferred to a person not  

belonging to a Scheduled Caste except with the prior approval of the collector.  The  

other restriction is under section 157-B viz. that the land belonging to a Scheduled  

Tribe cannot be transferred except to a person belonging to a Scheduled Tribe.  

10. (i)   In the present case the facts are very clear.  Umrao Singh was owner of the  

concerned land.  He made a will, it was duly attested by two persons, and it was  

registered as required by section 169 (3) of the U.P. Act.  Under that will he created  

a restricted interest in favour of respondent No.1 in plot No. 140-8-10-19.  This  

cannot be said to be impermissible under section 169 (1) of the U.P. Act.  It is  

nobody’s case that section 169 (2) thereof applied to the present case.  

(ii)  Section 14 of the Hindu Succession Act, 1956 undoubtedly declares in Sub-

section (1) thereof that a property of a female hindu is her absolute property, but it  

creates an exception in Sub-section (2) which provides that Sub-section (1) will not  

apply to any property which is given away by instruments such as by way of a gift

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or under a will.  In the present case Umrao Singh had made a will, and under that  

he  had  created  a  restricted  estate  in  favour  of  respondent  No.1  which  was  

permissible under this section 14 (2).

Section 14 of the Hindu Succession Act, 1956 reads as follows:-

“14. Property of a female Hindu to be her absolute  property.-  (1)  Any  property  possessed  by  a  female  Hindu,  whether   acquired before or after the commencement of this Act, shall be held by  her as full owner thereof and not as a limited owner.

Explanation  –  In  this  sub-section,  ‘property’  includes  both  movable  and  immovable  property  acquired  by  a  female  Hindu  by   inheritance or devise, or at a partition, or in lieu of maintenance of arrears   of maintenance, or by gift from any person, whether a relative or not,   before, at or after her marriage, or by her own skill or exertion, or by   purchase or by prescription, or in any other manner whatsoever, and also  any  such  property  held  by  her  as  stridhana  immediately  before  the   commencement of this Act.”

(2)  Nothing  contained  in  sub-section  (1)  shall  apply  to  any  property acquired by way of gift or under a will or any other instrument or   under a decree or order of a civil  court or under an award where the  terms of the gift, will or other instrument or the decree, order or award   prescribe a restricted estate in such property.”

11. The  issue  raised  in  this  Civil  Appeal  is  no-longer  res-intigra.   In  

Navneet Lal Vs Gokul and others reported in 1976 (1) SCC 630, a bench of  

three judges of this court was concerned with an almost identical situation, wherein  

a life estate was created by the testator in favour of his wife.  After going through  

the will, this Court held that it was permissible for the testator to create a limited  

estate in favour of his wife by making a will.  Later, in Amar Singh Vs. Assistant  

Director of Consolidation reported in  1988 (4) SCC 143, this Court in terms  

held in paragraph 5 as follows:-

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“The right of a bhumidhar with transferable rights to bequeath  his  holding  or  any part  thereof  by a  will  is  expressly  recognised  by  Section 169 (1) of the Act”.

12. In Amar Singh (supra) this Court explained an earlier judgment Ramji  

Dixit Vs. Bhirgunath reported in AIR 1968 SC 1058.  In that matter after the  

death of the owner, the land had devolved upon his wife as a Hindu widow’s estate.  

A  dispute  arose  about  the  alienations  effected  by  her,  and  it  was  held  that  

undoubtedly she had the right to alienate.  But as can be seen, in that matter the  

estate had devolved by inheritance, and not by will.  That is why in para 8 of Amar  

Singh (Supra) this Court specifically observed that the facts in  Ramji Dixit were  

quite distinguishable.   Besides,  as held by this  Court  in  Mst.  Karmi Vs.  Amru  

reported  in  AIR 1971 SC 745,  a  widow who succeeds to  the property  of  her  

deceased husband on the strength of his will,  cannot claim any right other than  

those  conferred  by  the  will.   Thus  life  estate  given to  her  under  a  will  cannot  

become an absolute estate under the provisions of Section 14 (2)  of  the Hindu  

Succession Act, 1956.

13. The  learned  Single  Judge  of  the  High  Court  held  the  transfer  by  

respondent No.1 was not invalid since sub-section (2) of Section 169 of the U.P. Act  

had been deleted,  which has  been so done by U.P.  Act  No.  30 of  1975.   This  

erstwhile sub-section (2) read as follows:-

“(2) No bhumidhar entitled to any holding or part in the right of a   [widow, widow of a male lineal descendant in the male line of descent,   mother,  daughter,  father’s  mother,  son’s  daughter,  sister  or  half-sister   being the daughter of the same father as the deceased], may bequeath   by will such holding or part.”

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As can be seen, the purport behind this sub-section is to prohibit a  

bhumidhar entitled to any holding in the right of a female Hindu from bequeathing  

such holding by a will. The learned Judge clearly erred in reading this sub-section  

(2), and the effect of its deletion.  He ignored that the present case was one falling  

under sub-section (1) of Section 169 and not under sub-section (2) since in the  

present matter the appellant was asserting his right with respect to the land which  

he received by way of the will of Umrao Singh.  Respondent No.1 was entitled to a  

share in the land on account of that will  only, and not on the basis of her own  

independent right.  The will giving her a share had restricted it to her life time which  

Umrao Singh was entitled to do under Section 169 (1) of the U.P. Act, and the same  

would remain restricted in view of Section 14 (2) of Hindu Succession Act, 1956. .  

The learned Judge had relied on section 152 (1) of the U.P. Act, but that section  

also cannot be read to take away the right of a bhumidhar to bequeath his holding  

by a will because section 152 (1) states as follows:-

“152.  Bhumidhari  interest  when  transferable-  (1)  The  interest  of  a  bhumidhar  with  transferable  rights  shall  subject  to  the   conditions hereinafter contained, be transferable.”

The present case is one of a bhumidhar bequeathing his land by a will, and  

as held in Amar Singh (supra) the same was clearly permissible. The bequest made  

under section 169 (1) in favour of a female Hindu, if it is a restricted one, shall  

remain a restricted one under sub-section (2) of section 14 of Hindu Succession Act,  

since the same will be governed by the terms of the will.  The learned Single Judge  

of  the  High  Court  thus  clearly  erred  in  holding  that  the  bequest  in  favour  of  

Respondent No. 1 was not a restricted one.  In view of what is stated above, the

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Courts  below  erred  in  dismissing  the  suit  filed  by  the  appellant.   In  the  

circumstances,  the  judgments  rendered  by  the  High  Court  as  well  as  by  the  

Additional District Judge and by the Civil Judge are clearly erroneous in law and on  

facts.

The question of applicability of doctrine of ‘lis pendes’

14. However,  there are some subsequent developments which we must  

note. On 15.02.2010, one Smt. Poonam Rajput filed Interim Applications Nos. 3 and  

4 of 2010 in this Civil Appeal.  In I.A No. 3 she has applied for being impleaded as  

respondent, and in I.A No. 4 she sought exemption from filing the official translation  

of the annexures to I.A No. 3 of 2010. By its order dated 10.8.2010, this Court  

directed that both these I.A. Nos. 3 & 4 to be listed alongwith the main appeal.  We  

have heard the learned senior counsel for the applicant in support of the I.A.s and  

the counsel for the appellant in reply thereto.  In I.A No. 3 the applicant has claimed  

that the respondent No. 1 Dhanwanti has executed a registered sale deed in her  

favour on 27.9.2004, and her name had been directed to be mutated in the revenue  

records vide order dated 4.11.2004, and recorded in the Khatauni on 13.5.2005.  

She  has  submitted  that  this  sale  had  taken place  at  a  time when the  suit  No.  

121/1994 and the First Appeal No. 97/2002 filed by the appellant herein had been  

dismissed on 28.7.2004.   She claims to  be a bonafide purchaser  of  the land in  

dispute for a good price of Rs. 3,35,000/-.   

15. (i)      The applicant further stated that in view of this sale, the appellant herein  

filed another suit  No.  731/2004 on 8.10.2004 in the Court  of  Civil  Judge (S.D.)

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Bijnaur,  against  respondent  No.  1  herein,  wherein  he  joined  the  applicant  as  

defendant No. 2.  The appellant had prayed for cancellation of the said sale deed  

dated 27.9.2004.  He had sought a permanent injunction restraining the defendants  

from taking possession of the disputed land.

(ii) It  is further  stated that  in this  I.A No. 3,  that respondent  No. 1 and the  

applicant  opposed the suit,  and prayed for  its  dismissal  by filing a  joint  written  

statement on 28.11.2004 wherein it was contended that the respondent No. 1 was  

the owner of half share of the disputed land, and she had been cultivating the same.  

It was also submitted that the first suit having been dismissed, a second suit for the  

same subject matter was not maintainable.

(iii)  It is pointed out that on 12.5.2005 the appellant filed an application in this  

suit No. 731/2004, and placed it on record that he had filed SLP (C) No. 6131/2005  

(which  is  numbered  as  Civil  Appeal  No.  2467/2005 after  the  leave  having been  

granted i.e. the present appeal) against the judgment of the Allahabad High Court  

arising  out  of  the  first  suit.   He  placed  it  on  record  that  the  Civil  Appeal  was  

admitted on 4.4.2005, and that this court had directed maintenance of status quo in  

respect of the disputed land.  The appellant had therefore prayed that the second  

suit filed by himself be stayed till the decision on the SLP by this Court, so that the  

multiplicity of the proceedings can be avoided.  

(iv) It was thereafter pointed out that the respondent No. 1 and applicant had  

opposed that application for stay of the second suit by their reply dated 22.8.2005.

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Amongst other it was contended by them that certified copy of the order of this  

Court had not been filed.   

(v) It  is  further  stated in  this  I.A No. 3 of  2010 that  this  suit  No. 731/2004  

remained pending for some time, and it came to be dismissed for non-prosecution  

on 27.1.2010.  

16.  This I.A. No. 3 of 2010 has been opposed by the legal representatives  

of the appellant who have come on record consequent upon his death.  They have  

stated  in  their  reply  that  they  had  no  knowledge  about  this  second  suit  No.  

731/2004 which was filed by the appellant, their predecessor in interest.  In any  

case they contend that the transfer made by the respondent No. 1 in favour of the  

applicant  was  ‘pendente lite’,  and therefore  will  have to  be  subject  to  the final  

decision of  the Civil  Appeal.   Inasmuch as a plea based on the principle  of  ‘lis  

pendens’ has been raised, we may now examine the applicability thereof to the facts  

of the present case.

17. The facts which have come on the record through I.A. No.3 and 4 of  

2010 and the reply thereto disclose that the respondent No. 1 had entered into the  

agreement of sale of the land in dispute with applicant Smt. Poonam Rajput on  

27.9.2004  when  suit  No.  121/1994  and  Civil  Appeal  No.  97/2002  filed  by  the  

appellant had already been dismissed by orders dated 13.12.2002 and 28.7.2004  

respectively.  It is however necessary to note that this sale is within the period of  

limitation when the second appeal could have been filed. The appellant however  

chose first to file the second suit on 8.10.2004 for cancellation of the sale deed,

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wherein he joined the aforesaid Smt. Poonam Rajput as respondent No. 2. (In the  

meanwhile he obtained the certified copy of the judgment and order in the First  

Appeal on 5.8.2004.)  Thereafter, he filed the Second Appeal on 1.11.2004 which  

was filed within the period of limitation.  This appeal was dismissed on 18.11.2004  

at the admission stage, though after hearing both the parties. The appellant then  

filed the present Special Leave Petition.  Special Leave was granted in the present  

matter, and an order of status quo came to be passed on the SLP on 4.4.2005.  

The original appellant has however not disclosed either in the Second Appeal or in  

the  SLP  that  he  had  filed  the  second  suit  for  setting  aside  the  sale  deed.  

Consequently, it did not come on record at that stage that the applicant claims to  

have purchased the land even before filing of the Second Appeal at a time when  

there was no order of stay in favour of the appellant.  It is also material to note that  

thereafter the appellant herein had applied on 12.5.2005 for stay of his own second  

suit by pointing out about the pendency of the present proceedings and the order of  

status quo having been passed therein.  This second suit came to be dismissed for  

non-prosecution on 27.1.2010.  It is contended by the legal representatives of the  

appellant  in their  reply to  I.A No. 3/2010,  that  they were not  aware about  this  

second  Suit  No.  731/2004  filed  by  their  predecessor  in  title,  and  that  is  how,  

according to them the suit came to be dismissed for default.

18. Section 52 of the Transfer of Property Act, 1882 (T.P. Act in short)  

which lays down the principle of ‘lis-pendens’ reads as follow:-

“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

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beyond  such  limits  by  the  Central  Government….  Or  any  suit  or   proceeding which is not collusive and in which any right or immovable   property is directly and specifically in question, the property cannot be  transferred or otherwise dealt 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 purpose 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 off by a final decree or order and complete   satisfaction or discharge or 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.

19. The broad principle underlying section 52 of the T.P. Act is to maintain  

the  status  quo  unaffected  by  the  act  of  any  party  to  the  litigation  pending  its  

determination.   Even after  the  dismissal  of  a  suit,  a  purchaser  is  subject  to  lis  

pendens, if an appeal is afterwards filed, as held in Krishanaji Pandharinath Vs.  

Anusayabai  AIR (1959)  Bom 475.   In  that  matter  the  respondent  (original  

plaintiff) had filed a suit for maintenance against her husband and claimed a charge  

on his house.  The suit was dismissed on 15.7.1952 under order IX, Rule 2, of Code  

of Civil  Procedure 1908, for non-payment of process fee.  The husband sold the  

house  immediately  on  17.7.1952.  The  respondent  applied  for  restoration  on  

29.7.1952, and the suit was restored leading to a decree for maintenance and a  

charge was declared on the house.  The plaintiff  impleaded the appellant  to the  

darkhast as purchaser.  The appellant resisted the same by contending that the sale  

was affected when the suit was dismissed.  Rejecting the contention the High Court  

held in para 4 as follows:-

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“…….In section 52 of the Transfer of Property Act,   as it stood before it was amended by Act XX of 1929, the expression  "active  prosecution  of  any  suit  or  proceeding"  was  used.  That   expression  has  now  been  omitted,  and  the  Explanation  makes  it   abundantly  clear  that  the 'lis'  continues so long as a final  decree or   order has not been obtained and complete satisfaction there of has not  been rendered. At page 228 in Sir Dinshah Mulla's "Transfer of Property   Act", 4th Edition, after referring to several authorities, the law is stated   thus:  

"Even after the dismissal of a suit a purchaser is subject to 'lis pendens',   if an appeal is afterwards filed."  

If after the dismissal of a suit and before an appeal is presented, the 'lis'   continues so as to prevent the defendant from transferring the property   to the prejudice of the plaintiff, I fail to see any reason for holding that   between the date of dismissal of the suit under Order IX Rule 2, of the   Civil Procedure Code and the date of its restoration, the 'lis' does not   continue.  

20. It is relevant to note that even when Section 52 of T.P. Act was not so  

amended, a division bench of Allahabad High Court had following to say in  Moti  

Chand Vs. British India Corporation AIR (1932) Allahabad 210:-

“The  provision  of  law  which  has  been  relied  upon  by  the  appellants is contained in S. 52, T.P. Act.  The active prosecution in   this  section  must  be  deemed  to  continue  so  long  as  the  suit  is  pending in appeal, since the proceedings in the appellate Court are  merely continuation of those in the suit: see the case of  Gobind  Chunder Roy v. Guru Chur Kurmokar 1888 15 Cal. 94.”

21. If such a view is not taken, it would plainly be impossible that any  

action or suit could be brought to a successful termination if alienations pendente  

lite were permitted to prevail.  The explanation to this section lays down that the  

pendency of a suit or a proceeding shall be deemed to continue until the suit or a  

proceeding is disposed of by 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

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thereof by any law for the time being in force.  In the present case, it would be  

canvassed on behalf of the respondent and the applicant that the sale has taken  

place in favour of the applicant at a time when there was no stay operating against  

such sale,  and in  fact  when the second appeal  had not  been filed.   We would  

however, prefer to follow the dicta in Krishanaji Pandharinath (supra) to cover the  

present situation under the principle of lis-pendens since the sale was executed at a  

time  when  the  second  appeal  had  not  been  filed  but  which  came  to  be  filed  

afterwards within the period of limitation.  The doctrine of lis-pendens is founded in  

public policy and equity, and if it has to be read meaningfully such a sale as in the  

present case until the period of limitation for second appeal is over will have to be  

held as covered under section 52 of the T.P. Act.

22. In the circumstances, we hold as follows:-

(i) The judgment and order dated 13.2.2002 rendered by the Civil Judge, Junior  

Division,  Najibabad  in  the  suit  No.  121/1994,  the  judgment  and  order  dated  

28.7.2004 passed by the Additional Distt. Judge, Bijnaur in Civil Appeal No. 97 of  

2002, and the one dated 18.11.2004 by a learned Single Judge of Allahabad High  

Court in Second Appeal No. 982 of 2004 will have to be held as not laying down the  

correct law and will therefore have to be set aside.   The appellant had sought a  

permanent  injunction  against  the  respondent  No.  1  from selling  the  concerned  

parcel of land either to the respondent No. 2 or otherwise.  That sale had not taken  

place.  The relief in Suit No. 121/1994 will therefore have to be moulded to grant  

only a declaration that the respondent No. 1 had no right to sell the disputed parcel  

of land.  

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(ii) The applicant Smt. Poonam Rajput has claimed that the said parcel of land  

has been sold to her by the first respondent subsequently on 27.9.2004. The second  

suit filed by the appellant bearing Suit No. 731 of 2004 in the Court of Civil Judge,  

Senior Division, Bijnaur sought to set-aside the sale in favour of the applicant.  It  

has  come  to  be  dismissed  for  default  though  the  legal  representatives  of  the  

appellant contend that it was so dismissed since they were not aware about that  

suit.  However, although we have dealt with the applicability of the principle of lis  

pendens to the present matter, the order concerning the second sale passed in the  

second suit is not under challenge before us.  It will be for the legal representatives  

of the appellant to apply to that court for appropriate orders, and it will be for that  

court to decide their application in accordance with law after hearing all the parties  

including the applicant.   

(iii) Since, the learned senior counsel for the applicant has been heard in support  

of the I.A. No.3 and 4 of 2010 no separate order is necessary thereon.  The same  

are disposed of accordingly.

23. Hence, we pass the following order:-  

(a) The impugned judgment and order dated 13.2.2002 rendered by the  

Civil  Judge, Junior Division, Najibabad, U.P. in the Suit No. 121/1994, and those  

arising in the appeals therefrom rendered by the Additional District Judge, Bijnaur  

and the High Court of Allahabad are held to be bad in law and are hereby set aside.

(b) There  shall  be  a  declaration in  favour  of  the  appellant  that  the  

respondent No. 1 had no right to sell the disputed parcel of land.  Suit No. 121/1994

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filed by the appellant in the Court of Civil Judge, Junior Division, Najibabad, U.P.  

shall stand decreed to that extent.

24. The Civil Appeal and I.A. Nos. 3 and 4 of 2010 stand disposed of as  

above.  The parties will bear their own costs.

…………..……………………..J.  ( P. Sathasivam  )

        ……………………… …………..J.  ( H.L. Gokhale  )

New Delhi  

Dated:  January  19, 2012