Jagriti v. The Andaman And Nicobar Administration And Others

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR ] *** WPA/982/2023 Smt. Jagriti Vs.

The Andaman & Nicobar Administration and others Mr. KMB Jayapal ... for the petitioner Mr. V.D.Sivabalan ... for the respondent Nos. 1 & 2 Ms. A.S.Zinu ... for the respondent No.3 June 24, 2024 [AKB] Item No.4 The issue raised in the present application pertains to withholding the registration of the sale deed dated 06.12.2018 by the respondent No.2 herein on the ground that a status quo order in the form of maintaining possession, nature and character of the suit property has been passed in TS No. 46 of 2014, which according to respondent No.2 operates and prohibits in registering the deed.

The fact set out in the case is that respondent No.3 herein filed a suit upon the subject landed property bearing survey No. 290/1 and survey No. 291/1 situated at Garacharma village, Port Blair before the Civil Judge Senior Division, being TS No. 46 of 2014 and the same is sub-judice before the said court wherein the petitioner herein has been impleaded as sole defendant. In the said suit plaintiff filed an application for interim injunction and the trial court passed an order of injunction in the form of status quo with regard to the possession, nature and character of the suit property. It has

also been mentioned that another suit is pending before said Court wherein respondent No.3 herein has entered seeking permission to be added as defendant being Other Suit No. 56 of 2021 (Shri. K.Sakthi vs Smt. Jagriti) which is also pending for adjudication and the said suit relates to specific performance of contract.

Further case of the writ petitioner is that during pendency of the civil suit the writ petitioner has executed one sale deed in respect of self same property in favour of Shri K. Sakthi and had presented the said deed before the office of Sub Registrar, Port Blair for registration. But the respondent No.3 herein filed objection before the Registrar and also served a copy of order of status quo, for which the respondent No. 2 withheld the registration and it has been informed orally to the writ petitioner that in view of the order dated 22nd July, 2014 passed in TS No. 46 of 2014, registration of sale dated 06.12.2018 could not be done.

Mr. KMB Jayapal learned counsel appearing on behalf of the petitioner submits that the property has been recorded in the name of writ petitioner as "Abadi" plot which is evident from the annexure and furthermore she is in possession of the said land. He further submits that the respondent No.2 is totally unjustified in withholding the registration of the said deed because the order of injunction was admittedly passed in the form of status quo maintaining possession and nature and character of the suit property in aforesaid TS No. 46 of 2014 and no injunction has yet been passed prohibiting the

respondent No. 2 in registering the deed or restraining the writ petitioner herein from dealing with and or disposing the subject property to any third party.

Ms. A.S.Zinu, learned counsel appearing on behalf of the respondent No.3 submits that in the event of registering such deed, it will create multiplicity of proceedings. Moreover, the Court had passed an order directing the parties to maintain status quo in respect of possession, nature and character of the suit property and as such, it would not be proper to allow the petitioner to register the deed and once such deed would be registered the respondent No.3 will face several difficulties in cancelling the said deed and it may give birth to several other litigations. She further submits if the prospective subsequent transferee would have preferred this application the object could have been understandable but here, it has been filed by the executor of the deed which shows mala fide intention.

Accordingly, she prayed for dismissal of the said application. Mr. VD Sivabalan, learned counsel appearing on behalf of the respondent Nos. 1 & 2 also submits that since an order of injunction has already been passed by a competent Court of law, the writ petitioner should abide by such order and it would not be lawful to register such deed by the respondent No. 2 while such injunction order is in force.

I have considered submissions made by the parties. It appears from the relevant order dated 22.07.2014, which the respondent No. 3 has heavily relied, that the direction of status quo was passed upon plaintiff and defendant No 1 to 4 as

regards the possession, nature and character of the suit property till the date of hearing of the temporary injunction petition and it is not communicated to this Court whether the temporary injunction petition has already been disposed of or not. Be that as it may, from the order impugned it is palpably clear that no order of injunction restraining the writ petitioner herein from transferring and or alienating the property in question, has been passed. It is also submitted that the deed in question has already been executed by the writ petitioner during pendency of the suit on 06.12.2018.

In the present context since the suit has already been instituted in respect of property in question and when admittedly no injunction order has been passed by the Trial Court restraining the writ petitioner from transferring the suit property, the transfer even if made during pendency of the suit is subject to doctrine of lis pendens.

The doctrine of lis pendens contained in Section 52 of Transfer of Property Act does not completely bar transaction pending in a suit in which the right of that property is in question and therefore the transfer relating to the property in dispute is not void. It simply lays down that if such transfer takes place, the subsequent transferee will be bound by the ultimate decree that may be passed in the suit. Accordingly such registration of deed even if allowed on presentation by the writ petitioner, such transfer is only voidable and that too at the option of the affected party to the proceeding.

In fact an order of prohibitory injunction which grants protection, is not available under Section 52 in the event of a transfer pending a suit. The right of transferee pendent lite is subservient to the decree and he is bound by the decree passed in the suit against the transferor/writ petitioner. The decree can be enforced even against the transferee without notice. The benefit that could be claimed by subsequent transferee under Section 19 (b) of the Specific Relief Act would not be available to a transferee pendent lite. In fact when a suit has already been filed before the proposed transfer, the parties are governed by Section 52 of the Act. A Division Bench of this Court in MA No. 019 of 2019 by order dated July 17, 2019 expressed similar view. As such there is no apparent reason to withhold and/or refuse the registration of the document on the ground that an order of status quo in respect of the possession and/or nature and character of the property in question has already been passed.

In such view of the matter WPA/982/2023 is hereby disposed of with the observation that the respondent No. 2 is absolutely without jurisdiction in refusing and/or withholding registration of the aforesaid deed which has already been executed by the writ petitioner. It is further observed that respondent No.2 is at liberty to register the above mentioned deed in favour of the subsequent transferee by the writ petitioner, if the said deed is otherwise fit for registration and in such event, the order dated 22nd July, 2014 does not create any bar or operate as a bar for registering the said deed.

Accordingly, in the event of next presentation of the aforesaid deed by the writ petitioner if any, for registration, the respondent No. 2 shall register the deed subject to compliance of requisite formalities as required under the law. However, it is also made clear that in the event of presentation and registration of the said deed sought to be registered by the writ petitioner, the subsequent transferee will be bound by the ultimate decree that may be passed in the suit, in terms of Section 52 of the Transfer of Property Act. No order as to costs.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all legal formalities.

(Ajoy Kumar Mukherjee, J.)