HON'BLE SRI JUSTICE A.SANTHOSH REDDY
C.R.P.No. 1294 of 2022
ORDER:
This revision is directed under Article 227 of Constitution of India against the order, dated 18.04.2022, in I.A.No.366 of 2020 in I.A.No.564 of 2007 in O.S.No.559 of 1998, on the file of the Principal Junior Civil Judge's Court, Sircilla.
2. Heard learned counsel for the petitioners and learned counsel for respondent No.1. Perused the record.
3. The respondent No.1 filed O.S.No.559 of 1998 for partition and separate possession and preliminary decree was passed on 11.11.2004. She has also filed I.A.No.567 of 2007 for passing of final decree. The petitioners herein filed I.A.No.366 of 2020 under Order 1 Rule 10(2) C.P.C. read with Rule 28 of Civil Rules of Practice read with Section 151 C.P.C. for impleadment as respondent Nos.19 and 20 in the said final decree application. The learned Judge dismissed the 2 application holding that the right of the petitioners over the property or their vendor's exclusive right to execute registered sale deeds shall not have any bearing on the preliminary decree passed in the main suit deciding the rights of the parties therein. The preliminary decree has attained finality as no appeal was preferred against such preliminary decree.
4. Learned counsel for the petitioners submits that the petitioners herein are the subsequent purchasers of the schedule properties and their rights have been created by virtue of registered sale deeds and mutation of revenue records. As such, the petitioners are proper and necessary parties to be impleaded and be permitted to be participated in the final decree proceedings.
5. He also submits that respondent Nos.2 to 4 during their life time along with respondent Nos.5 and 6 colluded with each other and created registered sale deed dated 23.11.1998 in favour of respondent No.6 3 in respect of lands in six survey numbers to an extent of Ac.04-20 guntas. Respondent No.3/defendant no.2 has created registered sale deed on 23.11.1998 in favour of respondent no.7 who is defendant No.6 in respect of fifteen survey numbers for total extent of Ac.7-05 ¾ guntas situated at Dacharam Villagewithout any consideration and delivery of possession. Thereafter, he sold the said properties in favour of the petitioners herein under registered sale deeds, dated 31.01.2012. Therefore, he prayed to allow the revision petition. He relied on the judgment of Beni Madho v.Yusuf Hussain Khan1.
6. On the other hand, learned counsel for respondent No.1 refuted the contentions of the petitioners and submitted that the petitioners are neither necessary nor proper parties. As such, the trial Court has rightly refused to consider their application and rightly held that they are subsequent 1 A.I.R. 1924 Oudh 33 4 purchasers after passing the preliminary decree and they have filed civil suit independently in respect of their claim in some of the items of schedule property. The impugned order needs no interference.
7. In order to appreciate the rival contentions, it is relevant here to refer the relevant provisions.
Order 1 Rule 10 (2) of Civil Procedure Code, which reads thus:
(2) Court may strike out or add parties: The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
8. A perusal of the record would disclose that the preliminary decree for partition filed by respondent No.1 in O.S.No.559 of 1998 claiming her 1/8th share in her ancestral joint family properties i.e. Ac.12-22 ½ guntas situated at Dacharam Village and Ramchandrapoor Village of Ellanthakunta and Sircilla 5 Mandals respectively against seven defendants (respondent Nos. 2 to 8 herein). The preliminary decree was passed on 11.11.2004 and she was declared to be entitled for 1/8th share in the suit schedule properties. It is the case of petitioners that they have purchased the items of schedule properties under three registered sale deeds in the year 2012 i.e. subsequent to passing of preliminary decree proceedings on 11.11.2004. Thereafter, she filed application for final decree in I.A.No.564 of 2007 on 14.11.2007. According to the petitioners, they have also filed civil suits in O.S.No.109 and 110 of 2018 for declaration of title and consequential Perpetual Injunction and to declare the judgment and decree dated 11.11.2004 vide O.S.No.559 of 1998 as null and void. In the said circumstances, the question to be decided is whether the petitioners, who are subsequent purchasers after passing of preliminary decree to be impleaded in the present application pending for passing final decree. 6
9. With regard to the scope of Order 1 Rule 10 of C.P.C. it is relevant here to refer the decision of Hon'ble Apex Court in Amit Kumar Shaw v.Farida Khatoon2,. Wherein, at para Nos.9 and 10 it is held as under:
9. The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this Rule, a person may be added as a party to a suit in the following two cases: (1) When he ought to have been joined as plaintiff or defendant, and is not joined so, or (2) When, without his presence, the questions in the suit cannot be completely decided.
10. The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right.
10. In the instant case, undisputedly, purchase made by the petitioners under the alleged registered sale deeds is subsequent to passing of preliminary decree, wherein the vendors of the petitioners are also parties in those preliminary decree proceedings and they 2 (2005) 11 Supreme Court Cases 403 7 executed registered sale deeds in the year 2012 i.e. subsequent to passing of preliminary decree dated 11.11.2004 in O.S.No.559 of 1998. The crucial question to be considered in view of the judgment of Amitkumar Shaw supra, prima facie, whether the right of the petitioners may be affected, if they have not added as parties and such a right however, will necessarily include an enforceable legal right. Admittedly, the petitioners invoked their rights of title to the property purchased by them and under registered sale deeds. Admittedly, subsequent to the preliminary decree and they have filed civil suits in O.S.No.109 and 110 of 2018 as stated supra, wherein they have also pleaded for cancellation of preliminary decree. So, the petitioners have already invoked their legal rights vested in them by virtue of alleged registered sale deeds. It appears from the material on record that alienations have been made during the pendency of final decree proceedings and subsequent 8 to passing of preliminary decree where the vendors of the petitioners were also made as parties in the suit as well as proceedings of the preliminary decree. So far as the affect of such transactions or alienations which have been made subsequent to passing the preliminary decree, it is settled principle of law that alienees pendente lite is bound by the final decree that may be passed. Generally in the ordinary circumstances said alienee can be brought on record under Order 1 Rule 10. However, in the peculiar circumstances of the case that since separate suits have been filed by the alienees, they are bound by the final decree that may be passed in the suits and they need not be brought on record.
11. In Amit Kumar Shaw cited supra, the Apex Court held in para No.15 as under:
" Section 52 of the Transfer of Property Act is an expression of the principle "pending a litigation nothing new should be introduced". It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such 9 property so as to affect his appointment. This Section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present:
1. There must be a suit or proceeding pending in a Court of competent jurisdiction.
2. The suit or proceeding must not be collusive.
3. The litigation must be one in which right to immovable property is directly and specifically in question.
4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.
5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.
12. In the instant case, on considering the above said decision of the Apex Court, it is manifestly evident that the vendors of the petitioners who are the parties to the suit in O.S.No.559 of 1998, wherein preliminary decree was passed on 11.11.2004 and during the pendency of final decree proceedings, the petitioners purchased the property and they are alienees pendente lite. The property purchased by the petitioners during 10 lis pendens would be hit by the principle of Doctrine of lis pendens. In the instant case, the rights of the petitioners over the property or their vendor's exclusive right to execute registered sale deeds shall not have any bearing on the preliminary decree passed in the main suit deciding the rights of the parties therein. Further the preliminary decree has attained finality and an application for final decree is pending before the Court below. Therefore, the trial Court has rightly took a view that there is no need to implead the petitioners.
13. In view of the foregoing discussion, I am of the view that the purchasers of the property during the pendency of final decree proceedings are neither necessary nor proper parties because pendente lite bound by the decree in view of principle enunciated under Section 52 of the Transfer of Property Act, 1882. Therefore, I hold that the proposed parties to be impleaded as respondents in the final decree 11 application are neither necessary nor proper parties. The Court below has assigned adequate reasons in support of its order and in the light of established legal principles stated above, rightly rejected the application of the petitioners for impleadment in final decree application. The observations made herein while deciding this revision petition shall confine only to the just decision of this case.
14. In the result, the Civil Revision Petition is dismissed. No costs. Interim order granted earlier shall stand vacated. Miscellaneous applications, if any, pending shall stand closed.
_______________________ A.SANTHOSH REDDY, J 12.10.2022 Note:
Issue C.C. by tomorrow.
B/o.
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