ORDER
1. This judgment will also dispose of R.S.A. No. 2531 of 1982 because the facts are common in both the cases.
2. Krishan Lal (defendant No. 2 in the suit) acquired the suit land through a preemption decree. The amount for the said decree was paid by Sardara Singh (defendant No. I in the suit). That being so, in the year 1959 Sardara Singh along with one Sajjan Singh entered into an agreement for purchase of the said property with Krishan Lal defendant No. 2 for a sum of Rs. 5,000/-. A sum of Rs. 4332, - was paid at the time of agreement on 5th of March, 1959. The balance amount of Rs. 668/- was to be paid at the time of registration of the sale deed. Possession of the land was to be given to the purchasers after obtaining the same from the vendees in the pre-emption suit filed by Krishan Lal. Later on, there was some dispute between the parties, i.e. between Sardara Singh- and Krishan Lal and the matter was thus referred to the two arbitrators i.e. Shri Faqir Chand and Shri Bansi Lal, each appointed by both the parties to give their award. Consequently,award dated 24-2-65 was given in favour of Sardara Sjngh. According to the said award the possession of the land was with Sardara Singh and the amount of Rs. 5,000/- the sale price had already been paid by Sardara Singh to Krishan Lal and, therefore. Krishan Lal will execute the sate deed in favour of Sardara Singh. The said award was got registered on 8-6-65. Subsequent thereto it was made rule of the Court on 30-7-66 vide order copy Exhibit D-5. Appeal against the said order was dismissed on 27-7-1967 vide copy Exhibit D.4. When the award was made a rule of the Court a decree was passed in terms thereof to the effect that 'I grant a decree for the specific performance of the agreement of sale on payment of Rs. 5,000/ -already paid in favour of the petitioner i.e. Sardara Singh and against the respondent No. 1, i.e. Krishan Lal with costs'. In spite of the award being made the rule of the Court in the above said terms, Krishan Lal vide sale deed dated 6-3-65 sold half of the land which was the subject matter of the agreement of sale to Sajjan Singh and got the same pre-empted by his sons Mohan Lal and Madan Lal (the plaintiffs in the suit) and Sajjan Singh suffered a consent decree against him. On the strength of the said compromise decree in favour of said Mohan Lal and Madan Lal they filed the present suit for one-half share against Sardara Singh impleading their father Krishan Lal also as defendant No. 2. According 10 the plaintiffs, the defendant Sardara Singh has entered into the possession of the suit property basing his title on certain purchases and had also secured an entry in column No. 10 of the Jamabandi 1963-64 (Billa Lagan Batiassawar Bai)ibut there was no sale deed as yet in his favour and his possession on the suit land was that of a'tres-passer. It was further stated that Sardara Singh defendant claims to have obtained a decree for specific performance of a contract of sale against Krishan Lal defendant but that as it may be the plaintiffs are not bound by any such decree as they were not parties thereto. Hence, they are entitled to the joint possession thereof along with defendant Sardara Singh in the present suit.
3. Sardara Singh defendant contro-verted the allegations made by the plaintiffs. He pleaded that Krishan Lal had contracted to sell the land in question to him vide agreement of sale dated 5-3-59; Krishan Lai had received a sum of Rs. 5,000/- as consideration thereof from him; Krishan Lal had been evading the registration of the sale deed in his favour although the latter had been put in possession of the land in question in pursuance of the terms of the said agreement; that the name of Sajjan Singh as a covendee was got incorporated as Benamidar whereas the entire consideration was paid by him i.e. Sardara Singh and the said matter has already been settled by the arbitrators in their award dated 24-2-65 which has also been made the rule of the Court vide order dated 30-7-66 in which it has been held that Dr. Sajjan Singh was included in the agreement of sale fictitiously and it was Sardara Singh who was the real purchaser of the land in question. Thus, in these circumstances, when there was already an award against Krishan Lal dated 24-2-65, any sale made by him subsequent thereto on 6-3-65 in favour of Sajjan Singh was illegal, fictitious and collusive. Krishan Lal had no right, title or interest in the suit land at that time after having received the entire amount of Rs. 5,000/'- from Sardara Singh. It was denied that the possession of the defendant Sardara Singh was that cf a trespasser. He was in possession of the suit land in' pursuance of the agreement in his own right. Any decree passed in favour of the plaintiffs against Sajjan Singh was of no consequence, as regard the rights of the defendant Sardara Singh. The trial Court came to the conclusion that till the time sale by Krishan Lal was made in favour of Sajjan Singh, 6-3-65, the award had not been made a rule of the Court and, therefore, Krishan Lal was fully competent to dispose the land in favour of Sajjan Singh. The trial Court also found that the defendant Sardara Singh has not become owner of the suit land as claimed by him. Consequently the trial Court decreed the plaintiffs' suit on 10-8; J977. In appeal the leaned Additional' District Judge found that 'the view taken by the trial Court that the award, ti!l it has been made a rule of the Court is a wasted paper is, therefore, erroneous and incorrect. So far as Krishan Lal and Sardara Singh wereconcerned the award dated 8-6-65 was binding upon them though it had not been made a rule of the Court. Legally Krishan Lal could not sell his land after the announcement of this award and the sale, if any, that might have been made by him after this award, would not be binding on Sardara Singh.' However, according to the learned Additional District Judge, Krishan Lal had effected the sale in favour of Sajjan Singh before the announcement of the award which according to the learned lower appellate Court was 8-6-65 whereas the sale deed executed by Krishan Lal in favour of Sajjan Singh was dated 6-3-65. In view of this, the decree of the trial Court passed in favour of the plaintiff was maintained.
4. However, since there was a factual mistake in the judgment of the Additional District Judge as, regard the date of the award, an application was made by Sardara Singh defendant. According to the defendant Sardara Singh, the award is dated 24-2-65 whereas the learned Additional District Judge has taken it to be 8-6-65. But the said application was dismissed.
5. Even at the time of motion hearing there was a dispute as to the date of the award whether it was 24-2-65 or 8-6-65 on the basis of which the lower appellate Court maintained the decree passed in favour of the plaintiffs. The arbitration file containing the original award was sent for by this Court. It was clear therefrom, that the award is dated 24-2-65 whereas the same was registered on 8-6-65. In the presence of the original award being here in this Court it is no more disputed by the plaintiffs that the award is dated 24-2-65 and the learned Additional District Judge committed an error in holding that the award was dated 8-6-65 and, therefore, the sale made by Krishan Lal in favour of Sajjan Singh on 6-3-65 was valid. However, according to the learned counsel for the plaintiffs-respondents even if the award is dated 24-2-65, Krishan Lal was competent to execute the sale deed on 6-3-65 in favour of Sajjan Singh.
6. After the suit filed by Mohan Lal and Madan Lal son) of Krishan Lal was decreed by the trial Court on 10-8-77, he himselffiled another suit on 25-10-1977 for possession of the land measuring 26 Kanals 9 Marias alleging that the said land was leased out by him to Charanjit Singh defendant No. 2 as Patedar for ten years with effect from Kharif 1959. After the expiry of the said period Charanjit Singh continued to be in occupation of the land and he inducted Sardara Singh on the suit land as tenant under him. Since the lease deed has already expired Charanjit Singh has no right or interest to give it on lease to Sardara Singh and hence he was entitled to its possession. The said suit was contested by defendant No. 1 Sardara Singh on the same plea as was taken by him in the earlier suit filed by the sons of Krishan Lal. According to Sardara Singh after the entire consideration of Rs. 5,000/- was paid to Krishan Lal and the award was given in his favour by the arbitrators on 24-2-65 Sardara Singh had no right, title or interest in the suit land. The story put up by him that he gave the suit land on lease to Charanjit Singh was wrong and baseless. He has been in occupation of the suit land throughout as owner after the award in his favour. He also pleaded that he was entitled to maintain his possession under S. 53A of the Transfer of Property Act as he is in possession of the suit land in pursuance of the agreement of sale dated 5-3-59 and the entire sale price has already been paid to Krishan Lal according to the award dated 24-2-65. The trial Court in that suit found that the plaintiff never leased out the suit property to defendant No. 2 i.e. Charanjit Singh as alleged. Though the trial Court found that Krishan Lal plaintiff was the owner of the suit land but since the defendant was protected under S. 53A of the Transfer of Property Act he was entitled to retain the possession. Consequently, plaintiff Krishan Lal's suit was dismissed on 11-1-1982. However, in appeal, the learned Additional District Judge, reversed the said finding of the trial Court with respect to the protection of S. 53A of the Transfer of Property Act as according to the learned lower appellate Court the defendant Sardara Singh did not plead all the ingredients of S. 53A of the Act. In view of that finding plaintiffs suit was decreed on 16-10-1982. R.S.A. No. 2531 of 1982 arises out of that suit.
7. In both the appeals the main question to be decided is as to what is the effect of the award dated 24-2-1965 whereby it was held that the total sale price of Rs. 5,000/ - has been paid by Sardara Singh to Krishan La! and Krishan Lal was held liable to execute the sale deed in favour of Sardara Singh.
8. Learned counsel for the defendants-appellants submitted that the provisions of S. 52 of Transfer of Property Act though not strictly applicable as such to the arbitration proceedings but the principles thereof are applicable and once the matter in dispute was referred to the arbitrators by the parties on 23-1-65 and award was given by the arbitrator on 24-2-1965, Krishan Lal could not transfer the suit land in favour of Sajjan Singh so as to affect the rights of Sardara Singh under the award. In support of this contention he referred to:-- Kedar-nath Lal v. Sheo Narain AIR 1970 SC 1717, Satish Kumar v. Surinder Kumar AIR 1970 SC 833, Lov Raj Kumar v. Dr. Major Daya Shanker AIR 1986 Delhi 364, Thakur Pandey v. BundiOjha AIR 1981 Pat 27, Suraj Khan v. Gaj Raj Singh AIR 1981 All 149. Moreover, argued the learned counsel there remained nothing to be done on the part of Sardara Singh in pursuance of the agreement of sale because the entire sale price of Rs. 5,000/- has already been paid to Krishan Lal and the possession had been taken by Sardara Singh in pursuance thereof. That being so, the provisions of S. 53A of Transfer of Property Act also protects his rights. This plea was specifically taken by him in the suit filed by Krishan Lal and the trial Court rightly found the same in favour of the defendant Sardara Singh when it was observed that 'so the defendant is protected under S. 53A of Transfer of Property Act and is entitled to retain the possession'. It was further found that Krishan Lal plaintiff had received the entire consideration and Sardara Singh was in possession of the suit property in pursuance of the agreement.
9. On the other hand, learned counsel for the defendants-respondents submitted that Sajjan Singh was not a party to the arbitration proceedings and, therefore, he was not bound by any award. Even in the order of the civil Court while making it a rule of the Courtit was observed that Sajjan Singh being a stranger to the reference is, therefore, free to challenge the proceedings by any independent suit but that plea is not available to Krishan Lal. Thus, argued the learned counsel, since the agreement of sale was in favour of both Sardara Singh and Sajjan Singh, Sajjan Singh was entitled to one-half of the land thereunder and on the facts and circumstances of the case Sardara Singh rightly transferred by way of sale dated 6-3-62 in favour of Sajjan Singh which was lateron preempted by the plaintiffs i.e. Mohan Lal and Madan Lal sons of Krishan Lal. According to the learned counsel the provisions of S. 52 of the Transfer of Property Act were not applicable to the arbitration proceedings or the award thereunder, as it was not a Court as defined in S. 2(c) of the Arbitration Act. Moreover, argued the learned counsel the award required registration as it transferred immovable property worth Rs. 5,000/- and the registration took place on 8-6-65 whereas Krishan Lal sold one-half share to Sajjan Singh on 6-3-65 i.e. prior to its registration and, therefore, the suit has rightly been decreed by the Courts below.
10. Learned counsel for Krishan Lal in R.S.A. No. 2531 of 1982 submitted that Sardara Singh got the possession of the suit land in the year 1966 and, therefore, the said possession could not be said to be in pursuance of the agreement of sale dated 5-3-59. According to the learned counsel Charanjit Singh defendant was recorded as Patedar in Exhibit P-l jamabandi for the year 1974-75 and Khasra Girdawari Exhibit P-3, for the year 1975-76 and therefore, it has been wrongly held by the Courts below that no lease was created in favour of Charanjit Singh by Krishan Lal.
11. After hearing the learned counsel for the parties and going through the case law cited at the bar, I am of the considered view that the whole approach of the Courts below in coming to the conclusion that the award dated 24-2-65 did not create any title or interest in Sardara Singh unless it was registered and made a rule of the Courts, was wrong, illegal and misconceived. The matter has been discussed by the Supreme Court inSatish Kumar's case (AIR 1970 SC 833) (supra), wherein it has been held that the award is not a mere waste paper but has some legai effect. It is final and binding on the parties and it cannot be said that it is a waste paper unless it is made a rule of the Court. The conferment of exclusive jurisdiction on a Court under the Act does not make award any the less binding than it was under the provisions of the Second Schedule of the Code of Civil Procedure. The award is, infact a final adjudication of a Court of the parties' own choice, and until impeached upon sufficient grounds in an appropriate proceeding, an award, which is on the face of it regular, is conclusive upon the merits of the controversy submitted. As between the parties and their privies an award is entitled to that respect which is due to judgment of a Court of last resort.
12. It has been further held therein that the award does create rights in the property but those rights cannot be enforced until the award is made a decree of the Court. It is one thing to say that a right is not created, it is an entirely different thing to say that the right created cannot be enforced without further steps.
13. The Supreme Court also held therein that for the purpose of .S. 17(1)(b) of the Registration Act, al! that is necessary is whether the award purports or operates to create or declare, assign, limit or extinguish whether in present or future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property. If'it does it is compulsorily registrable. S. 17 does not concern itself with the enforcement of rights. It is, therefore, quite evident that the award dated 24-2-65 did create certain rights in Sardara Singh with respect to the suit land since he has paid the entire sale price of Rs. 5,000/- to Krishan Lal and also got the possession thereof in pursuance of the agreement. Krishan Lal was left with no right or interest therein and was, therefore, estopped to make any alienation in respect thereof as to affect the rights of Sardara Singh. The question of registration was immaterial because Sardara Singh was not enforcing the award as such at that time.Admittedly, the award was registered on 8-6-65 and not only that it was even made the rule of the Court on 30-7-66. In Kedarnath Lal's case (AIR 1970 SC 1717) (supra) it was held by the Supreme Court that S. 52 of the Transfer of Property Act places a complete embargo on the transfer of immovable property, right to which is directly and specifically in question in a pending litigation. In the present case, the litigation between the parties have come to an end when the award was given on 24-2-65. In Samarendra Nath Sinha v. Krishna Kumar Nag, AIR 1967 SC 1440, observed in para 16 thereof that 'it is true that S. 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienation'. Thus, viewed from any angle it could not be successfully argued on behalf of the plaintiff-resopon-dents, that the award dated 24-2-65 was only a waste paper or was of no consequence and Krishan Lal was entitled to alienate the suit land on 6-3-65. As observed earlier, after the award, no right, title or interest was left in Krishan Lal and he was only to execute the sale deed in favour of Sardara Singh. He could not be allowed to frustrate the award by making sale later on in favour of Sajjan Singh. The argument that the award was not enforceable unless it was registered or made the rule of the Court, is not available to the plaintiffs because Sardara Singh was never enforcing the award as such as that stage has not reached as yet. Krishan Lal by his own act and conduct rather tried to nullify the effect of the award by transferring the half of the suit land in favour of Sajjan Singh. It may be noticed here that Sajjan Singh was not a party to either of the two suits nor he ever challenged the arbitration proceedings or the award, on the ground of agreement of sale dated 5-3-1959. It was only Krishan Lal who sold the land to Sajjan Singh and through his sons got the said sale pre-empted in which Sajjan Singh suffered a consent decree. It is, therefore, evident that Sajjan Singh never challenged the arbnitration proceedings but Krishan Lal in order to wriggle out or to nullify the effect of the award made the said sale in favour of Sajjan Singh which he wasnot entitled to. Under S. 52 of the Transfer of Property Act, the restriction is on the transferor and not on the transferee as such. Transferee gets whatever rights or title the transferor had at the time of sale. Since Krishan Lal had no right, title or interest in the suit property after the award, he could not transfer the same in favour of Sajjan Singh on 6-3-65.
14. As a matter of fact this was the view taken by the lower appellate Court also in R.S.A. No. 2040 of 1978 but the date of the award was taken to be 8-6-65 and the wrong finding was given. Once it is admitted and no more disputed now that the award is dated 24-2-65, the findings of the lower appellate Court are liable to be set aside. This is an error apparent on the face of the record.
15. Sardara Singh appellant is also entitled to the protection under S. 53A of the Transfer of Property Act. The possession of Sardara Singh could not be said to be in any other manner except in pursuance of the agreement of sale. At the time of agreement possession could not be delivered to him because Krishan Lal was yet to get possession in the pre-emption suit. As soon as he was able to get possesion in that suit. Sardara Singh was delivered possession of the suit land. Thus, in the suit giving rise to R.S.A. 253! of 1982, the trial Court rightly came to the conclusion that possession of Sardara Singh was protected under S. 53A of the Transfer of Property Act.
16. Consequently, both the appeals succeed and are allowed with costs. The judgment and decree of the Courts below are set aside and the plaintiffs suits are dismissed.
17. Appeals allowed.