A Single Bench of Rajasthan High Court comprising Justice Sameer Jain while dealing with the petition under Article 227 of the Constitution observed that alienation of a property which is hit by section 52 of the Transfer of Property Act is null and void and any application filed by the subsequent purchaser for impleadment as a necessary and proper party is not maintainable in law.
Background of the case
The facts of the case as averred by the petitioner are that the petitioner along with proforma-respondents purchased land in Hindaun Town vide registered sale deed dated 28/09/2018 from one Smt. Rajani Upadhaya, resident of 1/16, Janakpuri Tundla Road, District Firozabad (U.P.). The aforesaid land was in the name of Smt. Rajani Upadhaya as per the revenue records she was having possession over the land and possession of the same was peacefully handed over to the petitioner and the proforma respondents at the time of execution of sale deeds.
Petitioner stated that he was never informed about the pendency of the suit for cancellation of sale deed which was executed in favor of Smt. Rajani Upadhaya vide registered sale deeds dated 31/01/2007 and 26/04/2007. He said that when he purchased the land on 28/09/2018, there was no stay operational and no injunction operating against the transfer of the said land and therefore, while the title was legally searched, no information regarding any kind of legal hurdle was found.
It was only on 13/02/2019 that the petitioner came to know regarding the interim order and the matter is sub-judice before the learned trial court and immediately he filed an application under Order 1 Rule 10 CPC for impleadment being a bona fide purchaser. The said application was duly replied to by the opposite side and after consideration of the same, vide order impugned dated 10/10/2019, the application for impleadment was rejected. Hene, this present writ petition under Article 227 of the Constitution of India had been filed against this impugned order.
Submissions made
Learned counsel for the petitioner submitted that the petitioner is a bona fide purchaser as the sale deed was executed after payment of appropriate stamp duty and getting the same registered. Thereafter, in the revenue records, an appropriate entry of amendment in his name is duly recorded as a Khatedar. Respondent no.4, who has sold the said property under the sale deed dated 28/09/2018, is living in U.P. and is not taking any interest in the litigation and therefore, in the interest of justice, as per Order 1 Rule 10 CPC and as per his application, his application for impleadment should be allowed. In support of his claim, he has relied upon one judgment of the Hon'ble Apex Court reported in 2013(5) SCC 397 titled as Thomson Press (India) Limited Vs. Nanak Builders and Investors Private Limited & Ors.
Mr. RK Mathur, Sr. Advocate assisted by Mr. Aditya Kiran Mathur; Mr. Prahlad Sharma and the other learned counsels, representing the opposite side, vehemently opposed the impleadment application and have prayed that the impugned order dated 10/10/2019 is just, legal, proper, well reasoned and should be sustained. In support of the said claim, it was submitted that in the light of Section 52 of the Transfer of Property Act, it is well-settled law that it is necessary for the administration of justice that decision of a Court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. He emphasized on the doctrine of lis pendens.
As per him, on perusal of Section 52 of the Transfer of Property Act and in the light of the Apex Court Judge in Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb & Anr. reported in (2004) 1 SCC 191, the transferee cannot, as of right, seek impleadment in the suit when the suit is long pending and the alienation prima facie did not appear to be bonafide. Any transferee pendente lite without leave of the Court in the light of Section 52 is a nullity, illegal and void.
He also contended that fact that Petitioners were well aware of the fact that the subject property of the sale deed is in dispute and, therefore, their claim that for the first time on 01/02/2019 they came to know of the same, is an afterthought and created story and they are not bonafide purchasers.
Learned Senior Counsel Mr. Mathur has also submitted that the present lis in question does not require the petitioner to be impleaded as a necessary party as the suit for cancellation and permanent injunction against respondent no.4 and the parties was pertaining to the sale of property by the custodian of a minor Mr. Vishnu which was null and void.
Observation made by the Court
After hearing the learned counsels and taking note of the Judgements cited Court was of the view that in the present matter, the provisions of Section 52 of the Transfer of Property Act has a direct application. The sale deed dated 28/09/2018 was executed between Smt. Rajani Upadhaya and the petitioner categorically reflect noting of the Sub-Registrar that on the subject property, a dispute is pending before ADJ (First), Hindaun City under the provisions of Section 39.
Therefore, the claim of the petitioner that it was on 01/02/2019 that for the first time, he was aware of any pendency of the litigation and stay order, is not tenable. It is also an admitted fact on record that respondent no.4 in the sub-judice matter has marked his presence on 11/01/2018 and still the fact of the subject property being in dispute and sub-judice was not reflected in the sale deed. The provisions of Section 52 of the Transfer of Property Act and the judgments cited at the bar by learned counsel for the respondents, in loud voice, have held that alienation having been made in favor of any party during the pendency of the suit, was hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 and hence, the said transaction is a nullity, illegal and void and the Hon'ble Apex Court has further held that in the said situation, the application filed by the subsequent purchaser for impleading as the necessary and proper party is not tenable.
The court in its order recorded that,
"The claim of the petitioner that he is a bonafide purchaser and recorded Khatedar and the sale deed is registered and was in knowledge of the matter being sub-judiced on 01/02/2019 for the first time gets frustrated and nullified on perusal of the fact that on 28/09/2018 on the face of sale deed under Section 39, a note of pendency of the dispute on the subject matter of property was reflected. Respondent no.4-Smt. Rajani Upadhaya was very well served in the Civil Suit on 11/01/2018. The judgment relied upon by learned counsel for the petitioner in Thomson Press (India) Limited (supra) is also not applicable in the facts of the case as firstly, the same was pertaining to Specific Relief Act, 1963 and secondly, the facts of the case, as referred above, were on a different pedestal and thirdly, the petitioner herein is not a bonafide purchaser and FIR has been lodged against him. Therefore, he was aware of the matter being sub-judice along with respondent no.4-Smt. Rajani Upadhaya who is actually defending the civil suit filed against her and is duly served."
At last, by dismissing the said Petition court said that Court is not inclined to interfere under Article 227 of the Constitution of India which can only be invoked when there is an error apparent on the record, gross illegality has been committed by the learned Trial Court.
Case Details
Title: Yogeshs Goyanka v. Govind and Ors.
Bench: Justice Sameer Jain
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