Suresh Dhakad vs Geeta Dhakad
2022 Latest Caselaw 7731 MP

                              -1-

         IN THE HIGH COURT OF MADHYA PRADESH
                       AT INDORE
                        BEFORE
      HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
               HEARD ON 10th OF MAY, 2022
            ORDER PASSED ON 14th OF JUNE,2022


              SECOND APPEAL No. 638 of 2004

Between:-
SURESH DHAKAD
S/o NATHULAL DHAKAD
AGED ABOUT 34 YEARS
OCCUPATION : AGRICULTURE
NEEMUCH CITY, DISTRICT NEEMUCH
MADHYA PRADESH

2.NIRBHAYRAM DHAKAD
S/O NATHULAL DHAKAD
AGED ABOUT 30 YEARS
OCCUPATION AGRICULTURE
NEEMUCH CITY, DISTRICT NEEMUCH
MADHYA PRADESH

3. JAMNA BAI W/O NATHULAL DHAKAD
AGED ABOUT 58 YEARS
OCCUPATION AGRICULTURE
NEEMUCH CITY, DISTRICT NEEMUCH
MADHYA PRADESH
                                              .....APPELLANTS
(NONE FOR THE APPELLANTS,

SHRI AJAY JAIN, ADVOCATE FOR APPLICANTS/PROPOSED
APPELLANTS)

AND

GEETA DHAKAD W/O MADANLAL DHAKAD
                                         -2-

     AGED ABOUT 48 YEARS
     OCCUPATION AGRICULTURE
     NEEMUCH CITY, DISTRICT NEEMUCH
     MADHYA PRADESH

     2.BHERULAL S/O MADANLAL DHAKAD
     AGED ABOUT 16 YEARS
     THROUGH HIS MOTHER AND NATURAL
     GUARDIAN GEETABAI W/O MADANLAL DHAKAD
     NEEMUCH CITY, DISTRICT NEEMUCH
     MADHYA PRADESH

     3.STATE OF M.P
     THROUGH THE COLLECTOR
     DISTRICT NEEMUCH
                                               .....RESPONDENTS
     SHRI JITENDRA BHARAT MEHTA, ADVOCATE FOR RESPONDENT NO.1)


                                  ORDER

This order will dispose the I.A.No. 7146/2021 which is an application under Order 1 Rule 10 and Order 22 Rule 10 read with Section 151 of the Code of Civil Procedure filed by the applicants for impleading them as appellants in the present appeal. Application is duly supported by affidavit of applicant no.1 Kailash S/o Shantilal Sharma.

2. The present appeal has been preferred by the appellants against the judgment and decree dated 27.04.2004 passed by the learned First Additional District Judge, Neemuch affirming the judgment and decree dated 31.07.2003 passed by the First Civil Judge Class I, Neemuch passed in C.S 53A/2000, whereby the appellants' suit for declaration, possession and injunction has been dismissed.

3. Brief facts of the application, are that appellants informed to applicants that they are the owner of the half of the land bearing Survey No.

141 in Neemuch City as they received in family partition and hence, they are the owner and in possession of the said land. Therefore applicants believing the appellants, each applicants purchased 0.402-0.402 hectare of the land from the appellants by registered sale deed dated 06.07.2021 and 08.07.2021. After that an application under Section 109 and 110 of the M.P. Land Revenue Code was filed by the applicants for mutation before the Court of Tehsildar, in which notices were issued to the respondents, where respondents had filed written objections against the mutation petition. Thereafter, the applicants came to know about the pendency of this appeal in respect of the suit property and accordingly, filed this interlocutory application for impleadment as appellants. It is also stated that the applicants are the bonafide purchaser of the suit property, without any notice of the present appeal and the decision in the present appeal will substantially and directly affect their rights and interest and since, the appellants have lost interest in prosecuting the present appeal as they have sold the property to the applicants and there are every chances of the appellants colliding with the respondents as both are relatives and have already cheated the applicants by not informing regarding the pendency of appeal over the suit property. The applicants have invested the huge amount of money and the suit property is the source of their livelihood, hence, prayer is made to implead the applicants in the present appeal as appellants.

4. In support of his contention, learned counsel for the applicants has relied upon the order passed by the Coordinate Bench of this Court in Civil Revision No. 2202 of 1998 dated 06.01.2000 (Jabalpur) Sita Ram Ghaudhari Ram Dua Vs. Saraswati Debi Sainy and others reported in 2001(1) M.P.L.J.

5. In reply filed on behalf of the respondent no.1, they denied the

averments made in the application and submitted that the applicants are not in possession of the suit property and in fact, the respondent Nos. 1 and 2 are in possession of the suit land. It is further submitted that the applicants are pendente lite purchaser. They had purchased the suit land despite the order of status quo passed by this court on 07.12.2005 and appellants have sold the suit land without seeking leave of this Court, hence, the alleged transfer is hit by doctrine of "lis pendens" under Section 52 of the Transfer of Property Act and this appeal is pending since the year 2004, hence it cannot be said that applicants had no knowledge about the pendency of this appeal. Further, both the Courts below have concurrently held "that the deceased Pannalal had executed the will in favour of respondent Nos.1 and 2 in good mental and physical health". The applicants cannot challenge the legality and validity of the Will executed by Pannalal. The applicants are neither necessary nor proper party in the appeal, hence, prays for rejection of this interlocutory application. In support of reply, respondent no.1 has filed her affidavit.

6. Learned counsel for respondent no.1 has placed reliance on the decisions rendered by the Supreme Court in cases of Surjit Singh & Ors. vs. Harbans Singh & Ors, (1995) 6 SCC 50; Sarvinder Singh vs. Dalip Singh & Ors., 1997 (1) MPLJ 324 and Bibi Zubaida Khatoon vs. Nabhi Hassan Saheb & Anr., (2004) 1 SCC 191.

7. I have considered the contentions raised by the counsel of both the parties, perused the record and citations placed by the learned counsel of both the parties.

8. Before the trial court, the appellants/plaintiffs had filed the suit against the defendant/respondents to declare the Will dated 08/07/1990 as fabricated, illegal and void and not binding upon the plaintiffs/Appellants

and to declare title holder of one-half shares of the suit property and to get the possession of their share and to pass permanent injunction against the respondents to alienate the suit property in any manner, the trial court has dismissed the suit and judgment of the trial court was affirmed by the first appellate court by impugned judgment, against which this second appeal has been filed on behalf of the plaintiffs in the year 2004. During the pendency of this appeal on the instance of the appellants, this court has passed an order dated 18/07/2005 that the status quo as regards for mutating the names of respondents no. 1 and 2 are concerned, be maintained and on 07/12/2005, the order of status quo granted on 18/07/2005 was extended till further order. It is not disputed that the present applicants have purchased the suit property during the pendency of the appeal and without seeking the leave of the court as required by S.52 of the Transfer of Property Act, 1882 hereinafter to be referred to as "Act of 1882". The applicants being the transferee pendente lite, without the leave of the court cannot, as of right seek impleadment as a party in the appeal which is long pending since 2004. Relied on Bibi Zubaida Khatoon vs. Nabhi Hassan Saheb & Anr., (2004) 1 SCC 191.

9. Section 52 of the Act of 1882 envisages that "During the pendency in any Court having authority within the limits of India excluding the State of J&K or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."

10. The principle behind Section 52 of Act of 1882 is to maintain the status quo, not affected by the act of any party to the litigation pending its determination. The Doctrine of lis pendens is founded on public policy and if read carefully, it means such a sale until the period of limitation for the second appeal is over will have to be held as been covered under Section 52 of Act of 1882.

11. It would therefore be clear that the appellants/plaintiffs in the appeal were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the respondents except with the order or authority of the court. Admittedly, the authority or order of the court had not been obtained by the appellants for alienation of those properties. Therefore, the alienations obviously would be hit by the doctrine of lis pendens by operation of S.52 of the Act,1882. In the present case, dispute is regarding the "Will", which is said to be executed by Pannalal in favour of the respondents/defendants. It is undisputed that the appellants and defendants are the legal heirs of Late Pannalal. It is also not disputed that the applicants are strangers to the family of appellants and defendants. So, while deciding the matter of the Will, that the Will was actually executed by the Pannalal in sound mind and in accordance with S.68 of the Indian Succession Act, the applicants are not necessary parties. A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the dispute. In either case, the applicants cannot be said to be either necessary parties or proper parties to the appeal in deciding the question as to the genuineness of the Will.

12. Pending this appeal, the appellants/plaintiffs in the suit were prohibited by operation of Section 52 of Act of 1882 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of defendants/respondents, except with order or authority of the Court and in the present case, no such order or permission of the Court was obtained for alienation of suit property. Therefore, the alienation obviously would be hit by S.52 i.e. doctrine of lis pendens. Under these circumstances, the applicants cannot be considered to be either necessary or proper parties in this case.

13. The citation Sita Ram Ghaudhari Ram Dua Vs. Saraswati Debi Sainy and others reported in 2001(1) M.P.L.J relied on behalf of the applicants turned on the facts of that case and they are distinguishable and applicants has no support of that citation in the present appeal.

14. On the above discussion, I.A.No.7146/2021 an application under Order 1 Rule 10 and Order 22 Rule 10 read with Section 151 of the Code of Civil Procedure filed on behalf of the applicants to implead as appellants in this appeal is not acceptable and stands dismissed. Thereby, I.A.No.7146/2021 stands dismissed.

List the case for final hearing in due course.

                 Digitally signed                 (AMAR NATH (KESHARWANI))
                 by REENA                                  JUDGE
das              PARTHO
                 SARKAR
                 Date: 2022.06.14
                 18:48:36 +05'30'