# Badruddin And Ors v. Ram Surat & Ors - **Citation:** (2016) 5 ILRA 519 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-18 - **Bench:** Pramod Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badruddin-and-ors-v-ram-surat-ors-43865 - **Pages:** 6 ## Headnote defendants no. 1 and 2 was wrongly recorded in revenue records. For rectifying said error, case under Section 229-B of U.P.Z.A. & L.R. Act was filed in revenue court, which was decided in favour of plaintiffs. Against the judgment of trial court of .S.D.M, the first appeal was preferred before the court of Additional Commissioner, Varanasi, which was dismissed. Second Appeal No. 58/1988-89 is pending before the Board of Revenue, in which said court had passed order dated 5.10.1989, by which parties were directed to maintain status quo. In spite of said interim order, defendants no. 1 and 2 had executed sale-deed of disputed property in favour of defendant no. 3. This sale-deed is liable to be cancelled on the grounds that (a) the defendants are not owner and bhumidhar of disputed property and had no right to execute sale-deed, (b) in view of stay order dated 5.10.1989 of revenue court, defendants no. 1 and 2 could not execute sale-deed, (c) the sale-deed in question is without consideration and was executed for harassing the plaintiff, (d) the property was not surveyed, and (e) there are other grounds of cancellation. In original suit, plaintiffs sought relief firstly of cancellation of sale-deed dated 29.11.1995 executed by defendants no. 1 and 2 in favour of defendant no.-3 and for the relief of permanent injunction restraining the defendants from interfering in possession of plaintiff. In present matter, interim or stay order was passed by Board of Revenue. It is immaterial as to whether defendant-respondents had its knowledge or not, but the transfer made by defendants no. 1 and 2 in favour of defendant no.-3 will be subject to decree of the court passing such order. In present matter, Board of Revenue had, after passing the interim order, had decided the matter in favour of defendant-respondents and declared them owner and bhumidhar of disputed property. Therefore on the basis of any earlier interim order, the rights of defendant-respondents cannot be denied, especially when same court had finally decided the rights in favour of respondents.The findings of lower courts are acceptable that cannot be interfered.The judgments of lower courts are hereby confirmed. Accordingly, this appeal is dismissed. Held: Para- 520 INDIAN LAW REPORTS ALLAHABAD SERIES Case Law discussed: Uday Bhan Singh alias Babban Singh v. Board of Revenue, U.P., 1974 RDE 107, M/s Pharma Traders and another Vs. Seventh Additional District Judge, Kanpur Nagar and others, 1992 (4) AWC 17, A. Nawab John and others Vs. V.N. Subramaniyam, 2012 (5) AWC 4817 (SC), ## Text 5 All. Badruddin & Ors. Vs Ram Surat & Ors. 519 Office is directed to send a certified copy of this judgment along with the lower court record to the court concerned. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.05.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Second Appeal No.- 476 of 2016 Badruddin And Ors. ...Appellants Versus Ram Surat & Ors. ...Respondents Counsel for the Appellants: M J Akhtar, V.M. Zaidi Counsel for the Respondents: Ajay Kumar Singh, Ashish Kumar Singh This appeal has been preferred against the judgment in Civil Appeal No. 128/2014. In Original Suit No. 711/1997 (Amin & others vs. Ram Surat & others), the plaint case in brief was that plaintiffs are owner in possession, tenure holder and bhumidhar of agricultural plot no. 95 of village Pul Kohana, but name of defendants no. 1 and 2 was wrongly recorded in revenue records. For rectifying said error, case under Section 229-B of U.P.Z.A. & L.R. Act was filed in revenue court, which was decided in favour of plaintiffs. Against the judgment of trial court of .S.D.M, the first appeal was preferred before the court of Additional Commissioner, Varanasi, which was dismissed. Second Appeal No. 58/1988-89 is pending before the Board of Revenue, in which said court had passed order dated 5.10.1989, by which parties were directed to maintain status quo. In spite of said interim order, defendants no. 1 and 2 had executed sale-deed of disputed property in favour of defendant no. 3. This sale-deed is liable to be cancelled on the grounds that (a) the defendants are not owner and bhumidhar of disputed property and had no right to execute sale-deed, (b) in view of stay order dated 5.10.1989 of revenue court, defendants no. 1 and 2 could not execute sale-deed, (c) the sale-deed in question is without consideration and was executed for harassing the plaintiff, (d) the property was not surveyed, and (e) there are other grounds of cancellation. In original suit, plaintiffs sought relief firstly of cancellation of sale-deed dated 29.11.1995 executed by defendants no. 1 and 2 in favour of defendant no.-3 and for the relief of permanent injunction restraining the defendants from interfering in possession of plaintiff. In present matter, interim or stay order was passed by Board of Revenue. It is immaterial as to whether defendant-respondents had its knowledge or not, but the transfer made by defendants no. 1 and 2 in favour of defendant no.-3 will be subject to decree of the court passing such order. In present matter, Board of Revenue had, after passing the interim order, had decided the matter in favour of defendant-respondents and declared them owner and bhumidhar of disputed property. Therefore on the basis of any earlier interim order, the rights of defendant-respondents cannot be denied, especially when same court had finally decided the rights in favour of respondents.The findings of lower courts are acceptable that cannot be interfered.The judgments of lower courts are hereby confirmed. Accordingly, this appeal is dismissed. Held: Para- 520 INDIAN LAW REPORTS ALLAHABAD SERIES Case Law discussed: Uday Bhan Singh alias Babban Singh v. Board of Revenue, U.P., 1974 RDE 107, M/s Pharma Traders and another Vs. Seventh Additional District Judge, Kanpur Nagar and others, 1992 (4) AWC 17, A. Nawab John and others Vs. V.N. Subramaniyam, 2012 (5) AWC 4817 (SC), (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 1. This appeal has been preferred against the judgment dated 30.1.2016 passed by Additional District Judge/Special Judge (P.C. Act) Ist, Varanasi in Civil Appeal No. 128/2014. 2. In Original Suit No. 711/1997 (Amin & others vs. Ram Surat & others), the plaint case in brief was that plaintiffs are owner in possession, tenure holder and bhumidhar of agricultural plot no. 95 of village Pul Kohana, but name of defendants no. 1 and 2 was wrongly recorded in revenue records. For rectifying said error, case under Section 229-B of U.P.Z.A. & L.R. Act was filed in revenue court, which was decided in favour of plaintiffs. Against the judgment of trial court of .S.D.M, the first appeal was preferred before the court of Additional Commissioner, Varanasi, which was dismissed. Second Appeal No. 58/1988-89 is pending before the Board of Revenue, in which said court had passed order dated 5.10.1989, by which parties were directed to maintain status quo. In spite of said interim order, defendants no. 1 and 2 had executed sale-deed of disputed property in favour of defendant no. 3. This sale-deed is liable to be cancelled on the grounds that (a) the defendants are not owner and bhumidhar of disputed property and had no right to execute sale-deed, (b) in view of stay order dated 5.10.1989 of revenue court, defendants no. 1 and 2 could not execute sale-deed, (c) the sale-deed in question is without consideration and was executed for harassing the plaintiff, (d) the property was not surveyed, and (e) there are other grounds of cancellation. In original suit, plaintiffs sought relief firstly of cancellation of sale-deed dated 29.11.1995 executed by defendants no. 1 and 2 in favour of defendant no.-3 and for the relief of permanent injunction restraining the defendants from interfering in possession of plaintiff. 3. In written-statement, the defendants denied the plaint averments and pleaded that Second Appeal No. 58/1989 was decided by Board of Revenue in favour of defendants and it has been finally held that defendants are owner in possession of disputed agricultural property. This judgment is binding on plaintiffs and his suit is barred by Section 11 CPC. It was also pleaded that the name of defendant no.-3 purchaser has been recorded in revenue records, and plaintiffs has no right to get the sale-deed in question cancelled and his suit is liable to be dismissed. 4. After affording opportunity of hearing to parties, the court of Civil Judge (Junior Division), City, Varanasi had dismissed the original suit by its judgment dated 4.8.2014, in which it was specifically held that plaintiffs had failed to prove its case. Trial court had also held that from the documentary evidences, it is proved that defendants are bhumidhar of disputed land with transferable rights and plaintiffs are not owner or in possession of such property. 5. Against the judgment of trial court, the Civil Appeal No. 128/2014 was preferred by the plaintiffs of the original suit, which was heard and dismissed by the judgment dated 30.1.2016 of 5 All. Badruddin & Ors. Vs Ram Surat & Ors. 521 Additional District Judge/Special Judge (P.C. Act) Ist, Varanasi. In this judgment, first appellate court had independently appreciated the evidences and legal position and held that plaintiffs' suit is liable to be dismissed. First appellate court had framed point of determination as to whether during existence of stay order by competent court, the sale-deed executed by defendants no. 1 and 2 in favour of defendant no. 3 is illegal or void. After considering legal position as well as the argument of the parties, the first appellate court had held that such sale-deed executed during existence of stay order are not illegal or void, but their effect is subject to judgment and decree of the court passing such interim order. With these findings, first appeal was dismissed. 6. Aggrieved by the judgment of trial court as well as the first appellate court, present Second Appeal has been preferred by the plaintiffs of the original suit. 7. Learned counsel for the appellants contended that although second appeal has been decided in favour of plaintiff-respondents and against appellants, but writ petition against the judgment of Board of Revenue passed in second appeal is pending before High Court. He submitted that during existence of interim stay order passed by Board of Revenue in second appeal, the sale-deed in question was executed which should be cancelled. Therefore, this appeal should be admitted for being allowed. 8. Learned counsel for the respondents refuted the contentions of appellants' side and pleaded that writ petition is not continuation of suit or proceeding of trial court or appellate court. He admitted that parties are bound by the judgment of writ Court, but until writ petition is decided otherwise, the judgment of the Board of Revenue passed in second appeal is binding on the parties and should be treated as acceptable by this court also; because Board of Revenue is final Court on the point for which the judgment was delivered by it. He further pleaded that defendantrespondents had no knowledge of existence of any interim/stay order passed by Board of Revenue, and at the time of execution of sale-deed in question, respondents had no knowledge of it, so no deliberate violation of any stay order was committed by defendants. Therefore, appeal should be dismissed. 9. Learned counsel for the respondent relied on M/s Pharma Traders and another Vs. Seventh Additional District Judge, Kanpur Nagar and others, 1992 (4) AWC 17, in which it has been held as under:- "10. A full bench of this Court in its decision in the case of Uday Bhan Singh alias Babban Singh v. Board of Revenue, U.P., 1974 RDE 107, while relying upon the decisions of the Supreme Court in the case of Ramesh v. Gendalal Motilal Patni, AIR 1966 SC 1445 and in the case of The Ahmedabad Manufacturing and Calico Printing Co. Ltd. v. Ramanand, AIR 1972 SC 1598 held that a proceeding under Article 226 of the Constitution of India is not a continuation of the suit or proceeding giving rise to it. It further held that if a writ petition is not a continuation of the original suit or proceeding unlike an appeal or revision, the inference is not only reasonable but inevitable that the orders passed in the original suit or proceeding or in an appeal or revision arising therefrom do not merge in the orders passed in such petition." 522 INDIAN LAW REPORTS ALLAHABAD SERIES 10. In view of this verdict of Apex Court it is held that if any order of trial court or appellate court had become final, then it should be treated as final irrespective of the fact that the pendency of writ petition under Article 226 of the Constitution of India against such order is pending. The judgment of writ court is binding on parties, but unless otherwise order is passed, the mere pendency of writ petition shall not have any effect on the rights of the parties or the proceedings of the concerned case. Therefore the lower courts have not acted erroneously when they have held that judgment of Board of Revenue in Second Appeal had effect of finalization of the dispute. 11. The relief can be granted to plaintiff-appellants on the basis of pleadings of the plaint. The main ground for cancellation of sale-deed in question mentioned in the plaint is that it is the plaintiff-appellants, who are bhumidhars and tenure holders in possession of disputed agricultural property. Without declaring the plaintiff-appellants as bhumidhar of disputed property, they cannot be granted relief sought in plaint. 12. The name of defendants no. 1 and 2 was recorded in revenue records as bhumidhar at the time of institution of original suit and after the judgment of Board of Revenue, name of defendant no. 3 has also been recorded as bhumidhar in revenue records. Civil court has no jurisdiction to declare the plaintiff-appellant as bhumidhar against the judgment of revenue court finalized by Board of Revenue; therefore the main grounds for cancellation of sale-deed in question was not proved and the findings of two lower courts in this regard are correct and acceptable. 13. The other ground taken by plaintiff-appellants in plaint was regarding their possession, but this ground was also dependent on their ownership right. As discussed above, ownership right of disputed agricultural property of plaintiff-appellants could not be proved. Apart from it, on the basis of factual evidences adduced during trial, the trial court as well as the first appellate court had confirmed this finding that plaintiff-appellants are not in possession of disputed property. Those findings are concurrent and not infirm. Therefore, this ground for grant of relief sought in plaint is also found incorrect. 14. So farthe ground of existence of alleged interim stay order by Board of Revenue at the time of execution of sale-deed in question is concerned, there appears no evidence that defendantrespondents had knowledge of said interim order at the time of execution of sale-deed. Therefore their execution of sale-deed in question cannot be said to be erroneous. 15. Apart from it, this court has also appreciated the plea of Section 52 of Transfer of Property Act, taken by learned counsel for the appellants, and which is also reiterated by counsel for the respondents. Section 52 of Transfer of Property Act provides that the transfer of property pending suit relating to it is always subject to decree or order passed by Court and such transfer will not affect the rights of any party under the decree. 5 All. Badruddin & Ors. Vs Ram Surat & Ors. 523 16. In A. Nawab John and others Vs. V.N. Subramaniyam, 2012 (5) AWC 4817 (SC), Hon'ble Apex Court had held as under:- "17. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void: but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court: "The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court." 17. These provisions of Section 52 of said Act makes it clear that the effect of doctrine of lis pendens as embodied in Section 52 of the Transfer of Property Act is not annul all the transfers effected by the parties to a suit, but only to render it subservient to the rights of the parties under a decree or order, which may be decided in that suit. Its effect is only to make the decree passed in suit binding on the transferee if he happens to be a third party, even if he is not a party to the proceedings. However, the transfer will remain valid subject to the result of decree of the suit. 18. In present matter, interim or stay order was passed by Board of Revenue. It is immaterial as to whether defendant-respondents had its knowledge or not, but the transfer made by defendants no. 1 and 2 in favour of defendant no.-3 will be subject to decree of the court passing such order. In present matter, Board of Revenue had, after passing the interim order, had decided the matter in favour of defendant-respondents and declared them owner and bhumidhar of disputed property. Therefore on the basis of any earlier interim order, the rights of defendant-respondents cannot be denied, especially when same court had finally decided the rights in favour of respondents. 19. On the basis of above discussion, it is found that the grounds mentioned in plaint were not proved. The judgments of trial court as well as first appellate court are based on proper appreciation of factual and legal aspects. There appears no illegality, error or infirmity in the impugned judgment, much less a perversity. The findings of lower courts are acceptable that cannot be interfered. 20. In view of the above, none of the contentions of learned counsel for the appellants are found acceptable. The judgments of lower courts are hereby confirmed. Accordingly, this appeal is dismissed. ---------- 524 INDIAN LAW REPORTS ALLAHABAD SERIES APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 11.05.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Second Appeal No.- 483 Of 2016 Kunwar Pal Singh ...Appellant Versus Suresh Chand ...Respondent Counsel for the Appellant: Dinesh Kumar Singh, Jitendra Pal Singh Jadaun Counsel for the Respondent: Bhanu Bhushan Jauhari ................................. Specific Performance Declined - Hardship to Defendant Farmer Justified - Refund of Advance Consideration Enhanced - Registered agreement to sell dated 8.12.2005 for land at consideration of Rs. 60,000/-, advance of Rs. 50,000/- paid; defendant pleaded transaction was a security for loan; trial court (Additional Civil Judge, Senior Division, Court No. 10, Shahjahanpur) decreed specific performance; first appellate court (Civil Appeal No. 21/2015) set aside specific performance holding that disputed land near township of Shahjahanpur, consideration of Rs. 20,000/- per bigha was meager, defendant was a poor farmer whose livelihood would be jeopardized and directed refund of Rs. 40,000/- with interest; Held, findings of first appellate court regarding hardship to defendant and inequity of specific performance are in accordance with Section 20(1) and (2) of the Specific Relief Act and cannot be treated as incorrect; however, considering enhancement of real estate values and decline in currency value since 2005, refund amount enhanced from Rs. 40,000/- to Rs. 1,00,000/- with interest as directed by first appellate court. (Paras 2-13) Appeal Partly Allowed - Refund Enhanced to Rs. 1,00,000/- Case Law Discussed: Pratap Lakshman Muchandi v. Shamlal Uddavadas Wadhwa, (2008) 12 SCC 67 (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 1. Heard learned counsel for the parties and perused the records. 2. Admittedly, the defendant Kunwar Pal Singh had executed the registered agreement to sell dated 8.12.2005 for selling his land for a consideration of Rs. 60,000/-, and received Rs. 50,000/- as advance consideration. It was admitted between the parties that within one year defendant will receive remaining consideration of Rs. 10,000/- from plaintiff and execute sale-deed of his property in question. When he had not executed sale-deed, then the plaintiff had given legal notice to him and filed suit for specific performance of contract for sale.