- (1.)POONAM Srivastav, J. Heard Sri Rajesh Kumar Chauhan and Sri A. K. Gupta, learned Counsels for the defendant-appellants IInd set and Sri M. K. Gupta Advocate for the plaintiff-respondents.
(2.)LEARNED Counsels for the parties state that the questions involved are legal questions and therefore, the record of the lower Court is not required to as certain the facts of the case; consequently this appeal is heard and decided at the stage of admission itself.
The instant second appeal is preferred against the judgment and decree dated 28. 1. 2004 passed by the Additional District Judge, Court No. 4, Aligarh allowing Civil Appeal No. 108 of 1997 arising out of Original Suit No. 546 of 1989. The Trial Court dismissed the suit for specific performance but allowed refund of the earnest money along with 12% interest. The judgment and decree passed by the Trial Court was challenged in appeal by the plaintiff. The suit was instituted for specific performance. Shiv Kumar defendant 1st set was the original owner of the disputed land. He entered into an agreement to sell with the plaintiff Laxmi Devi on 11. 9. 1987 and subsequently another agreement was also executed in favour of Munni Lal who executed a power of attorney in favour of his son Ramesh Chandra on 6. 124989. A sale deed was executed in favour of the appellants on 3. 7. 1990 for a consideration of Rs. 2,70,000/ -. The suit was in stituted on 27. 7. 1989 and the appellants were subsequently impleaded as a de fendant in the suit. The Trial Court arrived at a conclusion that the defendant-appellants were entitled for the benefit under section 19 (b) of the Specific Relief Act. The appeal was allowed by the lower Appellate Court, which is under challenge in the instant second appeal. Counsel for the appellants framed as many as three substantial questions of law which are as under: - (i) Whether the lower Appellate Court was justify in ignoring the claim of the appellant on the ground that section 19 (b) is not applicable to their case and in any case decree for refund of sale consideration be passed? (ii) Whether the plaintiff being bona fide purchaser for value without no tice and hence their right were protected and the transfer in their favour was not barred? (iii) Whether the Lower Appellate Court has erred in decreeing the suit for specific performance without upsetting the findings of the Trial Court on the question of knowledge of the agreement dated 11. 9. 1987 in favour of plaintiff?

The main thrust of the argument is that the appellants are bona fide purchasers. They are in actual physical possession of the land in question and they will suffer irreparable injury in case they are dispossessed. It is also sub mitted that the Trial Court" compensated the plaintiff by refunding the money along with 12% interest. The submission is that the appellants had suffi ciently established their bona fide claim and their contention is that they tried to make necessary inquiry and despite due diligence, they were not aware about the agreement to sell and, therefore, they are liable to be accorded bene fit of section 19 (b) of Specific Relief Act. It is not disputed that the sale deed in favour of the appellants was executed during the pendency of original suit No. 546 of 1989. Counsel for the appellant has placed reliance on the decision of the Apex Court in the case of Ram Prakash v. Baddal Husain AIR 2007 Alld. 212.

(3.)SRI M. K. Gupta Counsel appearing for the plaintiff-respondents has emphatically disputed each and every arguments advanced on behalf of the defendant-appellants. The submission is that the appellants being subsequent purchaser during the pendency of the suit for specific performance have no right or claim and the lower Appellate Court was absolutely right in coming to a conclusion that they were not entitled to the benefit under section 19 (b) of the Specific Relief Act. Section 3 of Transfer of Property Act defines a person said to have notice; "a person is said to have notice "of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation 1.- Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated. " 6. The lower Appellate Court has recorded a finding after perusing the statement of D. W. 2 where he has admitted that he had not examined any Barahsala, though D. W. 1 states that the said document was shown to the ap pellants. Since no receipt thereof has been produced specially when the D. W. 2 has made a contrary admission, a conclusion has been arrived at that no inquiry whatsoever was made by the defendant-appellant. SRI M. K. Gupta has placed a Full Bench decision of this Court in the case of Smt. Ram Peary and others v. Gauri and others AIR 1978 Alld. 318, it was held that even in a given case where the subsequent transferee is altogether ignorant of any right and if a transfer is made during the pendency of the suit by vendor after the institution of the suit, the effect of the doctrine of lis pendens is not to annul the conveyance but only to render it subservient to the rights of the parties in the litigation. Thus the subsequent purchaser yields to the adjudication of the rights in the suit which was insti tuted prior to execution of the sale deed. The subsequent transferee, even though he has obtained the transfer without notice of the original contract cannot set up against the plaintiff any right to defeat the rule of lis pendens which is founded on public policy. Thus the Full Bench clearly held that section 52 of the Transfer of Property Act is not subject to section 19 (b) of the Specific Relief Act. While laying down this principle, the Full Bench placed reliance on the decision of the Apex Court, AIR 1967 SC 1440. This decision of the Full Bench was followed by this Court in the case of Raja Ram (deceased) through Legal Representatives and others v. Smt. Shanti Devi 1997 (2) AWC 1289. Paragraph 6 of the said judgment is quoted below: - "after hearing learned Counsel for the parties, I am of the view that the second appeal lacks force for the following reasonings. The saledeed was executed during the pendency of the appeal in collusion with original vendor who wanted to frustrate the right of respondent Smt. Shanti Devi, This is not permissible under law when a concluded contract is existing be tween Smt. Shanti Devi and SRI Raja Ram. I fail to understand how it would help the appellant Nos. 2 and 3 in giving opportunity when they did not file suit for specific performance of contract, if there was any oral agreement or understanding earlier. If there was none, then sale executed in favour of Smt. Shanti Devi is subject to the right under section 52 of Transfer of Property Act. The second sale, if any, would be subject to the rights of the parties in the suit. Ruling has been quoted by the learned Counsel for the respondent Smt. Ram Peary and others v. Gauri and others AIR 1978 All 318. It was observed that it may be that the subsequent transferee, is entirely ignorant of any right on the part of the contractor and also of the pendency, of the suit filed against the vendor by such contractor, yet as the transfer is made to him by the vendor after the institution of the suit of the contractor and, while it is pending, the subsequent purchaser cannot set up against the contractor any right from which his vendor is excluded by the decree. The effect of the doctrine of lis pendens is not to annul the conveyance but only to render it subservient to the rights of the parties in the litigation. The conveyance in favour of the subsequent purchaser thus yields to the adjudica tion of the rights obtained by the contractor, in the consequence of a decree obtained against the vendor in a suit for specific performance of the con tract. The subsequent transferee, even though he has obtained the transfer without notice of the original contract cannot set up against the plaintiff- contractor any right; for it would defeat the rule of lis pendens which is founded upon public policy. Therefore, section 52 is not subject to section 19 (b) of the Specific Relief Act, AIR 1967 SC 1440 and 1948 IA 165, relied on. " 7. In another case Smt. Ram Dhani and others v. Nek Ram Singh and oth ers 2001 (45) ALR 849, it was held that section 52 of the Transfer of Property Act has primacy over section 19 (b) of the Specific Relief Act, Similar view was taken in the case of Abdul Aziz and others v. District Judge, Rampur and another AIR 1994 Alld. 167=1993 (22) ALR 207, Paragraphs 3 and 4 of the said judgment are quoted below: - "3. The contesting respondent No. 3 obtained a decree for specific per formance against Abdul Habib alias Abdul Ahmad, the proforma respon dent No. 4, on 16th August, 1973. Before the decree could be executed the proforma respondent No. 4 transferred the property, which was the subject-matter of the decree, in favour of Mohd. Sharif and Abdul Aziz on 7h February, 1974. The decree-holder Harish Chandra, the contesting respon dent No. 3, initiated proceedings for execution of the decree dated 6th August 1973. The petitioners before this Court, who were the transferees of the property in dispute, filed objection under section 47 of the Code assert ing that the decree was not binding on them inasmuch as they were not par ties to the suit and that the decree was not executable against them as they were the bona fide transferees for value. The objection of the petitioners was turned down by the executing Court by means of its order and judgment dated 181h January, 1985. The petitioners took up the matter before the District Judge, Rampur in revision. The revision was dismissed by means of the order and judgment dated 27th April, 1985 and the order of the executing Court rejecting the objection of the petitioners was upheld. 4. Relying upon the doctrine of lis pendens the Courts below have held that the petitioners were as much bound by the decree and judgment dated 16th August, 1973 as their transferor Abdul Habib, the judgment debtor. The view taken by the Courts below is sound. Lis comes into existence from the point of the institution of the suit and continues to survive till the sat isfaction of the decree. In view of this legal position, the impugned orders and judgments do not warrant any interference by this Court in exercise of its special and extraordinary jurisdiction under Article 226 of the Constitution of India. " 8. In the case of (Smt.) Savitri Devi v. Civil Judge (S. D.), Gorakhpur and others 2003 (51)ALR 369, it was held that any sale deed executed in disobedience of interim in junction restraining alienation of property render the sale deed during pendency of the suit is nonest and can very well be ignored. 9. In the instant case, admittedly an injunction was operative and inspite of it sale deed was executed in violation of injunction order and, therefore, the Lower Appellate Court was absolutely correct in denying the benefit of section 19 (1) (b) of the Specific Relief Act. The sale deed is nullity and cannot be given effect to. The facts of the present case are absolutely different from the one cited by the learned Counsel for the appellants and not applicable to the facts of the present case. The Full Bench decision as well as the decisions of the Apex Court clearly give section 52 of the Transfer of Property Act and overriding ef fect of section 19 (1) (b) of the Specific Relief Act. The facts of the present case are undisputed. Only inquiry as stated by the D. W. 1 is that Barahsala was shown to the appellants whereas D. W. 2 has denied this fact and this has been very well noted by the lower Appellate Court while refusing to grant benefit to the appellants. 10. In the facts and circumstances, I am of the considered view that the ap pellants are not entitled to the benefit claimed and no illegality has been com mitted by the lower Appellate Court while setting aside the decree of the Trial Court. The substantial questions of law raised in this appeal is farfetched one and not worth consideration. The appeal lacks merit and is accordingly dismissed. There shall be no order as to costs. Appeal Dismissed. .