Gujarat High Court
Shamuben Haribahi Paraliya vs Lakshmiben Gobarbhai Savalia on 21 September, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
C/SCA/13732/2014 ORDER DATED: 21/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13732 of 2014
==========================================================
SHAMUBEN HARIBAHI PARALIYA & 5 other(s)
Versus
LAKSHMIBEN GOBARBHAI SAVALIA & 3 other(s)
==========================================================
Appearance:
MR BHAVESH P TRIVEDI(2731) for the Petitioner(s) No. 1,2,3,4,5,6
MR RR TRIVEDI(941) for the Petitioner(s) No. 1,2,3,4,5,6
MR BHAVIN S RAIYANI(3855) for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 21/09/2023
ORAL ORDER
1. This petition under Article 227 of the Constitution of India
assails order passed below Exh.33 in Regular Civil Suit No.51 of
2005 pending before the learned Additional Civil Judge, Jetpur.
2. Brief facts of the case are as under :-
2.1. The petitioner - plaintiff has filed suit against 3 defendants
viz. Laxmiben Gobarbhai Savaliya, Vallabhai Gobarbhai Savaliya
and Prabatbhai Gobarbhai Savaliya for declaration and
permanent injunction inter-alia on the ground that defendant
has sold suit land bearing Survey No.171 paiki ad-measuring
Acre 5-06 Gunthas of village Thorala village to Shamandas
Achlomal Ahuja in the year 1982. Said Shamandas Ahuja after
taking possession of the suit property sold it to the present
plaintiff by way of agreement to sell after obtaining part of sale
NEUTRAL CITATION
C/SCA/13732/2014 ORDER DATED: 21/09/2023
undefined
consideration. Agreement to sale was executed on 15.06.1983 on
stamp paper of Rs.10 by which possession of suit property has
been handed over to the plaintiff. In backdrop of this pleadings,
the petitioner - plaintiff alleged that present defendant of the
suit though sold suit property to Shamandas Ahuja they are
trying to take possession of suit property from the plaintiff and
thus, the plaintiff has prayed relief that the plaintiff may not be
dispossessed without due process of law and prayed relief for
permanent injunction restraining defendants from changing
hands of the property.
2.2. In the suit, one - Changanbhai Modhvadia has preferred
application Exh.33 under Order 1 Rule 10 of CPC to implead
him as necessary party in the suit interi-alia on the ground that
he has purchased the suit property through registered sale deed
and he is owner of the suit property. He is bona fide purchaser
with value and therefore any decision on the suit would directly
effect him.
3. Learned Court below after hearing both the parties was
pleased to allow the application in exercise of jurisdiction vested
under Order 1 Rule 10 of CPC and impleaded third party as
defendant in suit. Being aggrieved by the said order, the
petitioner - plaintiff has preferred this petition.
4. Learned advocate Mr. Trivedi for the petitioner - plaintiff
would submit that learned Trial Court has grossly erred in
joining defendant as party against whom the plaintiff has not
asked any relief. He would submit that the plaintiff is dominus
litus and against wish of the plaintiff, third party cannot be
NEUTRAL CITATION
C/SCA/13732/2014 ORDER DATED: 21/09/2023
undefined
joined as party defendant. He would submit that presence of
third party was not necessary for effective adjudication of the
suit. He would further submit that according to plaintiff
defendants were trying to take away possession of the suit
property from the plaintiff without following due process of law.
Therefore, the plaintiff has asked relief to protect plaintiff from
high hand action of the defendant. He would submit that
defendant has sold the suit property to Shamandas Ahuja.
Therefore, title of the property was transferred to said
Shamandas Ahuja yet defendant have again sold suit property to
third party without title and ignoring agreement to sale in favour
of the plaintiff. In view of that, proposed party is not bona fide
purchaser. He would submit that if third party is permitted to be
joined as party defendant, simple suit for declaration and
injunction would be converted into complex suit of title and it
would enlarge scope and nature of suit. He would further submit
that learned Trial Court has totally erred in granting relief
without addressing all these issues and therefore, order passed
by the Court below is erroneous. He would submit that cause of
action for the plaintiff arose in the year 2004, when at that time
defendant have tried to encroach upon possession of the plaintiff
over the suit property. At that time proposed party was not in
picture. Joining proposed party in the year 2014 will change
cause of action and that is not permissible against wish of the
plaintiff. Thus he submits to allow this petition and to quash
and set aside impugned order. To buttress his submission,
learned advocate for the petitioner has relied upon the judgment
of Apex Court in the case of Sudhamayee Partanik v/s. Bibhu
Prasad Sahoo [2022 AIR (SC) 4304].
NEUTRAL CITATION
C/SCA/13732/2014 ORDER DATED: 21/09/2023
undefined
5. Paying anxious thought to submission of learned advocate
for the petitioner what appears from the record that the plaintiff
is claiming relief of protection to the possession over suit
property interi-alia on the ground that agreement to sell is
executed in favour of the plaintiff by which he is put into that
possession. Simple and plain reading of the plaint indicates that
the plaintiff is seeking relief under section 53-A of the Transfer of
Properties Act for part performance. Conjoint reading of section
17 with section 49 of the Registration Act indicates that relief for
part performance under section 53(A) would not be available if
agreement to sell is unregistered. In present case, admittedly
agreement to sale is unregistered and executed on insufficient
stamp. Be that as it may, what appears that at the relevant time
plaintiff claimed relief against defendants who are predecessor in
title of the suit property. The plaintiff apprehends that defendant
might take away possession of the suit property forcibly from the
plaintiff. Admittedly, now suit property is transferred in the
name of proposed party. It is contended by plaintiff that suit
property was initially transferred in the name of Shamaldas
Ahuja and therefore, defendant has lost title, thus they cannot
again transfer the suit property to proposed party but this words
are not available to the plaintiff. The plaintiff cannot question
sale transaction since he is not title holder.
6. Considering the nature of suit what appears that learned
Trial Court is required to decide that whether the plaintiff is in
legal possession of the suit property and whether plaintiff can
seek protection of possession of suit property under section
53(A) of the Transfer of Property Act. This relief can only be
NEUTRAL CITATION
C/SCA/13732/2014 ORDER DATED: 21/09/2023
undefined
claimed against owner of the property. Proposed party is owner
of the property. In his absence if issue which is claimed by the
plaintiff, which is to be adjudicated by the Court below will be
decided, it will have direct bearing upon the rights of proposed
party. The proposed party has purchased the suit property
pending suit. At this stage, I may refer to observations and
finding of Apex Court in the case of A.Nawab John v/s.
V.N.Subramaniya [2012 GLH (2) 693]. Para 19 is relevant which
reads as under :-
"19. This Court on more than one occasion held that when
a pendente lite purchaser seeks to implead himself as a
party - defendant to the suit, such application should be
liberally considered. This Court also held in Smt. Saila
Bala Dassi v. Smt. Nirmala Sundari Dassi and Another,
AIR 1958 SC 394, that, "justice requires", a pendente lite
purchaser "should be given an opportunity to protect his
rights". It was a case, where the property in dispute had
been mortgaged by one of the respondents to another
respondent. The mortgagee filed a suit, obtained a decree
and 'commenced proceedings for sale of the mortgaged
property'. The appellant Saila Bala, who purchased the
property from the judgment-debtor subsequent to the
decree sought to implead herself in the execution
proceedings and resist the execution. That application was
opposed on various counts. This Court opined that Saila
Bala was entitled (under Section 146 of the C.P.C.) to be
brought on record to defend her interest because, as a
purchaser pendent elite, she would be bound by the decree
against her vendor. There is some divergence of opinion
regarding the question, whether a 26pendent elite
purchaser is entitled, as a matter of right, to get impleaded
in the suit, this Court in (2005) 11 SCC 403, held that :
"Further pending the suit, the transferee is not
entitled as of right to be made a party to the suit,
though the court has a discretion to make him a
party. But the transferee endent elite can be added
as a proper party if his interest in the subject- matter
NEUTRAL CITATION
C/SCA/13732/2014 ORDER DATED: 21/09/2023
undefined
of the suit is substantial and not just peripheral. A
transferee 26endent elite to the extent he has
acquired interest from the defendant is vitally
interested in the litigation, where the transfer is of
the entire interest of the defendant; the latter having
no more interest in the property may not properly
defend the suit. He may collude with the plaintiff.
Hence, though the plaintiff is under no obligation to
make a lis pendens transferee a party, under Order
22 Rule 10 an alienee 26endent elite may be joined
as party. As already noticed, the court has discretion
in the matter which must be judicially exercised and
an alienee would ordinarily be joined as a party to
enable him to protect his interests. The court has
held that a transferee 26endent elite of an interest in
immovable property is a representative-in-interest of
the party from whom he has acquired that interest.
He is entitled to be impleaded in the suit or other
proceedings where his predecessor-in-interest is
made a party to the litigation; he is entitled to be
heard in the matter on the merits of the case."
[Emphasis supplied] The preponderance of opinion of
this Court is that a pendente lite purchaser's
application for impleadment should normally be
allowed or "considered liberally".
7. Useful reference can be made to the judgment of Apex
Court in the case of Rahul Shah v/s. Jitendra Kumar Gandhi
[2021 (6) SCC 418]. Para 28 is relevant which is extracted
below :-
"28. Order I Rule 10(2) empowers the Court to add any
party who ought to have been joined, whether as a plaintiff
or defendant, or whose presence before the Court may be
necessary in order to enable the Court to effectually and
completely adjudicate upon and settle all questions
involved in the suit. Further, Order XXII Rule 10 provides
that in cases of assignment, creation or devolution of any
interest during the pendency of the suit, the suit may, by
leave of the Court, be continued by or against the person
NEUTRAL CITATION
C/SCA/13732/2014 ORDER DATED: 21/09/2023
undefined
to or upon whom such interest has come to be devolved."
8. For the foregoing reasons, since proposed party at present
is title holder of the suit property, he is necessary party where
issue of possession of suit property is involved. So far as
judgment in the case of Sudhamayee Pattnaik (supra) is
concerned, there is no cavil on the proposition of dominus litus.
However, on factual aspect, said judgment does not render any
help to the petitioner - plaintiff as in that case suit was
instituted for declaration and permanent injunction and recovery
of possession. As noted earlier in the present case plaintiff has
asked relief for protection to the possession of suit property
against predecessor in title of the suit property. Now proposed
party is title holder of the suit property and therefore, proposed
party is necessary party in whose presence effective adjudication
of the suit can be made. In nutshell, the petitioner fails to make
out his case to interfere in the limited jurisdiction under Article
227 of the Constitution of India.
The petition is dismissed. Notice is discharged. Civil
Application, if any, does not survive and accordingly, disposed
of.
(J. C. DOSHI,J)
SATISH
