Uma Pati Sood v. Rakesh Katyal & Ors.

1. Present appeal has been filed challenging the preliminary decree dated 23rd March, 2021 passed by the learnedSingle Judge in CS (OS) 2021:DHC:1407-DB 116/2020. Appellant also prays that the said suit for partition, filed by respondent no.1,be dismissed.

2. Learned counsel for the appellant states that the learned Single Judge failed to appreciatethe fact that respondentNo. 1, vide the alleged sale deed dated 26th December, 2018, acquired 1/4th share in the suit property while CS No. 1053/2018 was pending before the ADJ, Dwarka Courts.He submits that since thesaid suit was disposed of in terms of a consent order dated 07th March, 2019, whereby the respondent No. 2 agreed to complete the construction as per the collaboration agreement, the rights of respondent no. 1, with respect to the suit property, are subservient to theconsent order dated 07th March,2019. He submits that the Rule of Priority is applicable in the present case wherein the same property, interestswere transferred to differentpersons, i.e. respondents No. 2 and 3 and M/s. Jolly BrothersBuildwell Pvt. Ltd.wholater on sold their interests to respondent No. 1, in such a manner that use or enjoyment by one transferee is against theinterest of the other.

3. He contends that since respondent no.2, who was a signatory to the sale deed dated 26th December,2018, was a party to the suit before the ADJ, the logical sequitur would be that even respondent no.1 was aware of the pendency of thesuit and yet,the respondents continued with the alleged sale to complicate the matter and usurp the appellant’s property. He furthersubmits that the Apex Court in ‘Rajender Singh and Ors. v. Santa Singh and Ors.’ MANU/SC/0342/1973: AIR 1973 SC 2537 has held that Alieneesacquiring anyimmovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they maynot have been impleaded in it. The whole object of the doctrineof lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable propertywhich are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pendingaction from being defeated.

4. Having heard learned counselfor the appellant, this Court finds that respondent no. 1 had purchased his share in suit property from M/s.Jolly Brothers Buildwell Pvt. Ltd. Neither respondent no. 1 nor M/s.Jolly Brothers Buildwell Pvt. Ltd. was initially made parties to the suit filed by the appellant before the District Court. Even the subsequent application filed by the appellant for impleadment was never allowed. Further, respondent no. 1 and M/s. Jolly Brothers Buildwell Pvt. Ltd. were not parties to the Collaboration Agreement or Compromise Decree between the respondent no. 2 and the appellant. Consequently, duly signed compromise decree between the appellant and respondent no. 1 binds the respondent no.1 and appellant only.

5. In fact, respondent no. 2 is not the predecessor-in-interest of respondent no.1. Respondent no.2 had signed the respondent no. 1’s sale deed as a witness only. Accordingly, respondent no. 1 is not an alienee or successor-in-interest of respondent no.2. Consequently, the doctrineof lis pendense, Rule of Priority and judgment of the Supreme Court in ‘Rajender Singh and Ors. v. Santa Singh and Ors. (supra) have no application to thepresent case.

6. In any event, the appellant’s halfshare in thesuit property has not been touched or trampledupon while passing the impugned decree of partition. Consequently,the appeal andapplication being bereft of merits are dismissed.

7. The order be uploaded on the websiteforthwith.Copy of the order be also forwarded to the learned counsel through e-mail. MANMOHAN,J ASHA MENON, J APRIL 19, 2021 rn