Patna High Court
Shanti Singh vs Mr. Jugeshwar Nath Srivastava on 5 January, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.578 of 2023
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1. Shanti Singh Wife of Sri Jang Bahadur Singh (D/o Late Shiv Nr. Singh),
resident of Village-Dudhani, P.O.-Kamarpur, Present P.O.-Pawani, P.S.-
Buxar Muffasil, Distt-Buxar (Bihar), at present resident of Sai Kripa, Ved
Nagar, Rukunpura, B.V. College, P.S.-Rupaspur, Bailey Road, Danapur,
District-Patna-14.
2. Surendra Singh, son of Late Ramyash Singh, resident of Village-Dudhani,
P.O.-Kamarpur, Present P.O.-Pawani, P.S.-Buxar Muffasil, Distt-Buxar
(Bihar), at present resident of Sai Kripa, Ved Nagar, Rukunpura, B.V.
College, P.S.-Rupaspur, Bailey Road, Danapur, District-Patna-14.
3. Ram Bahadur Singh, son of Late Ramyash Singh, resident of Village-
Dudhani, P.O.-Kamarpur, Present P.O.-Pawani, P.S.-Buxar Muffasil, Distt-
Buxar (Bihar), at present resident of Sai Kripa, Ved Nagar, Rukunpura, B.V.
College, P.S.-Rupaspur, Bailey Road, Danapur, District-Patna-14.
4. Jang Bahadur Singh, son of Late Ramyash Singh, resident of Village-
Dudhani, P.O.-Kamarpur, Present P.O.-Pawani, P.S.-Buxar Muffasil, Distt-
Buxar (Bihar), at present resident of Sai Kripa, Ved Nagar, Rukunpura, B.V.
College, P.S.-Rupaspur, Bailey Road, Danapur, District-Patna-14.
5. Vijay Shankar, son of Sri Jang Bahadur Singh, resident of Village-Dudhani,
P.O.-Kamarpur, Present P.O.-Pawani, P.S.-Buxar Muffasil, Distt-Buxar
(Bihar), at present resident of Sai Kripa, Ved Nagar, Rukunpura, B.V.
College, P.S.-Rupaspur, Bailey Road, Danapur, District-Patna-14.
6. Sangeeta Kiran, D/o Sri Jang Bahadur Singh, resident of Village-Dudhani,
P.O.-Kamarpur, Present P.O.-Pawani, P.S.-Buxar Muffasil, Distt-Buxar
(Bihar), at present resident of Sai Kripa, Ved Nagar, Rukunpura, B.V.
College, P.S.-Rupaspur, Bailey Road, Danapur, District-Patna-14.
... ... Petitioner/s
Versus
1. Mr. Jugeshwar Nath Srivastava son of Late Onkar Nath Srivastava, resident
of Mohalla-Naya Tola, Sanguna More, Near Raghunath Petrol Pump, P.S.-
Danapur, Bailey Road, District-Patna (Bihar).
2. Divya Kumari, Wife of Sri Brajesh Kumar, resident of Mohallah-Bhim
Shani Tola, P.O. and P.S.-Malsalami, Distt.-Patna. At present resident of 3
SFS, B-1/5, Bhoot Nath Road, Bahadurpur Housing Colony, P.S.-
Agamkuan, District-Patna.
3. Ms. Dipti Kumari, Daughter of Late Devendra Prasad, resident of Mohallah-
Bhim Shani Tola, P.O. and P.S.-Malsalami, Distt.-Patna. At present resident
of 3 SFS, B-1/5, Bhoot Nath Road, Bahadurpur Housing Colony, P.S.-
Agamkuan, District-Patna.
4. Sushant Kumar, son of Late Devendra Prasad, resident of Mohallah-Bhim
Shani Tola, P.O. and P.S.-Malsalami, Distt.-Patna. At present resident of 3
SFS, B-1/5, Bhoot Nath Road, Bahadurpur Housing Colony, P.S.-
Agamkuan, District-Patna.
... ... Respondent/s
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
2/21
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Appearance :
For the Petitioner/s : Mr.Shashi Nath Jha, Advocate
Mr. Sunny Kumar, Advocate
For the Respondent/s : Mr. Amit Shrivastava, Sr. Advocate
Mr.Girish Pandey, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 05-01-2024
Heard learned counsel for the petitioners and learned
counsel for the respondent no.1 on the point of admission and I
intend to dispose of this petition at this stage itself.
2. The intervenors/petitioners have filed the instant
petition seeking the following reliefs :
"(i) Quashing/setting aside the part of the
impugned order dated 17.01.2023 (Annx-4) passed
by the learned Additional District Judge VI,
Danapur, Patna, in Title Appeal No.-79 of 2019
(Divya Kumari & others Vs. Jugeshwar Nath
Srivastava), whereby and whereunder the
intervention applications of the present petitioners
no. 1 to 4 dt. 06.12.2022 (Annx-2), as well as the
intervention application of the present petitioners
no. 5 to 6 dt.06.01.2023 (Annx-3), both filed U/O 1
Rule 10 (2) C.P.C. for their own impleadment in the
pending Title Appeal as Co-appellants have been
rejected.
(ii) Allowing the intervenors-petitioners'
application dt. 06.12.2022 (Annx-2) and also dt.
06.01.2023
(Annx-3), both filed U/O 1 Rule 10 (2)
C.P.C. and implead them in the pending Title
Appeal as Co-appellants, as these intervenors have
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
admittedly purchased the suit land during pendency
of the Title suit from the Plaintiffs.
(iii) Holding and declaring that the learned court
below while passing the impugned order dt.
17.01.2023 (Annx-4) has failed to exercise his
jurisdiction vested in him, and also failed to protect
the right, title and interest of the intervenors-
petitioners over the suit land.
(iv) Granting any other relief/reliefs for which the
petitioners may be found entitled to".
3. The learned counsel for the intervenors/petitioners
submitted that the intervenors/petitioners have purchased the
lands measuring 08 Katha 03 Dhur under Khata No. 144,
Survey Plot No.363 (Part), Thana No. 23, Mauza-Saguna,
Danapur, District- Patna from the plaintiffs/respondent 2 nd party
vide various registered sale deeds during the pendency of the
concerned title suit.
4. The learned counsel for the petitioners further
submitted that in the year 2011, a Title Suit No. 112 of 2011
(Smt. Sudha Devi and others vs. Sri Jugeshwar Nath Srivastava)
was filed by the plaintiffs-respondents 2nd party in the court of
learned Sub-Judge, Danapur, Patna for declaration of title and
for a decree of removal of encroachment against the sole
defendant and also for removal of construction of house/shops
made by the defendant over the suit land. The sole defendant
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
appeared in the suit and filed his written statement requesting
for dismissal of the suit. Thereafter, the said title suit of the
plaintiffs was dismissed on contest without granting any relief to
the plaintiffs vide judgment and decree dated 03.08.2019 passed
by the learned trial court. Being aggrieved with the said
judgment and decree dated 03.08.2019, the plaintiffs filed Title
Appeal No.79 of 2019 before the learned District Judge, Patna
which is pending before the learned Additional District Judge-
VI, Danapur for disposal.
5. The learned counsel for the petitioners further
submitted that during the pendency of the said title appeal, the
petitioner nos. 1 to 4 and the petitioner nos. 5 & 6 filed their
respective intervention applications under Order 1 Rule 10 (2)
of the Code of Civil Procedure (hereinafter referred as 'CPC')
on 06.12.2022 and 06.01.2023, respectively for their
impleadment in the title appeal. The defendant/respondent filed
his rejoinder to both the applications dated 06.12.2023 and
06.01.2023 and prayed for dismissal of the same. Thereafter, the
learned appellate court below, without considering the issues,
dismissed the aforesaid applications on frivolous and
unsustainable ground vide the impugned order dated
17.01.2023.
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
6. The learned counsel for the petitioners further
submitted that undisputedly the present petitioners are the
transferee- pendente lite and the representative-in-interest over
the suit land as the same have been purchased by them through
various registered sale deeds executed by the plaintiffs. The
learned counsel further submitted that from the sale deeds,
which have been attached with the petition, it is apparent that
the petitioners have valid right, title, interest and possession
over the total suit area measuring 8 Katha 03 dhur purchased by
them. Subsequently, on the basis of aforesaid sale deeds, all the
petitioners-puchasers got their separate Jamabandi opened and
they have been paying rent to the State of Bihar.
7. The learned counsel for the petitioners further
submitted that the learned court below while passing the
impugned order has failed to protect the right, title, interest and
possession of the plaintiffs over the suit land. The learned
counsel further submitted that the petitioners would suffer
irreparable loss, if they are not impleaded in the pending title
appeal as co-appellants. Moreover, for the complete
adjudication of the case between the parties, the present
petitioners are the necessary party in the title appeal. Therefore,
the present petition may be allowed.
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
8. On the other hand, learned senior counsel
appearing on behalf of the respondent no.1 contended that the
petition filed by the petitioners is not maintainable on account of
suppression of material facts. Before adverting to merits of the
case, the learned senior counsel took this Court through the
factual matrix of the case. The learned senior counsel submitted
that by a registered deed of sale dated 25.07.2011, the original
plaintiff no.1 Sudha Devi sold part of the suit property having
area 10 Dhurs to one Shanti Singh (petitioner no.1), the wife of
the petitioner no.4 Jang Bahadur Singh. The original plaintiff
no.1 Sudha Devi further sold a piece of land measuring 3 Katha
11 Dhur and 10 Dhurki by another registered deed of sale dated
14.09.2011 to Shanti Devi (petitioner no.1), Surendra Singh
(petitioner no.2), the brother of Jang Bahadur Singh, Ram
Bahadur Singh (petitioner no.3), also a brother of Jang Bahadur
Singh (petitioner no.4). In this manner, the original plaintiff no.1
Sudha Devi cumulatively sold 4 Katha 1 Dhur and 10 Dhurki of
the suit property. The learned senior counsel further submitted
that in another transaction, the original plaintiff no.2 Sushant
Kumar sold part of suit property vide registered deed of sale
dated 10.07.2012 to Shiv Narayan Singh, the father-in-law of
Jang Bahadur Singh. Further, by a registered deed of sale dated
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
10.07.2012, the original plaintiff no.2 Sushant Kumar sold part
of suit property having area 11 Dhur and 10 Dhurki to the
petitioner nos. 2, 3 and 4, Surendra Singh, Ram Bahadur Singh
and Jang Bahadur Singh, respectively. The original plaintiff no.2
Sushant Kumar further sold 1 Katha 10 Dhur of land of the suit
property to Sangita Kiran (the petitioner no.6), the daughter of
Jang Bahadur Singh and Vijay Shankar (petitioner no.5) and
Ravi Shankar, both sons of Jang Bahadur Singh. In this manner,
Sushant Kumar cummulatively sold 3 Katha 11 Dhur and 10
Dhurki. In this way, the plaintiff nos. 1 and 2 sold 7 Katha and
13 Dhurs to the petitioners. The learned senior counsel further
pointed out that the original plaintiffs in their plaint in Title Suit
No. 112 of 2011 have specifically claimed that there was
encroachment on 1.5 Katha of the suit property and they have
also mentioned in their plaint that they had cumulatively
purchased 8 Katha and 3 Dhurs of the land. If the lands sold by
the original plaintiff nos. 1 and 2 is deducted from the
cumulatively purchased land of the original plaintiffs, the
remaining land is only 10 Dhur. So, the case of the plaintiffs is
obviously false as they claimed encroachment on 1.5 Katha of
the suit property. It is also clear that the original plaintiffs,
namely Sudha Kumari and Sushant Kumar, sold their entire
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
property between 25.07.2011 to 10.07.2012. In fact, the original
plaintiff no.1 sold half share in the suit property within a few
months of filing of the Title Suit No. 112 of 2011, which was
verified and signed on 16.05.2011. But the plaintiffs took no
step at any point of time after 10.07.2012 till 03.08.2019, when
Title Suit No. 112 of 2011 was disposed of, to bring on record
the fact of execution of aforesaid five registered deeds of sale
and took no efforts to substitute/transpose the said purchasers in
the Title Suit No. 112 of 2011. Further, even the Title Appeal
No. 79 of 2019 was filed on 06.11.2019 by the plaintiffs without
substituting/transposing the said purchasers in the title suit or
appeal. It was left to the respondents to bring on record the fact
about execution of the above-mentioned five registered deeds of
sale. The originals plaintiffs and substituted plaintiff no.1 Divya
Kumari and Dipti Kumari, both daughters of original plaintiff
no.1 suppressed the fact of registration of sale deeds and played
fraud upon learned court below and even in the instant Title
Appeal No.79/2019. Further, the petitioner no.1 who was given
General Power of Attorney by substituted plaintiffs 1 (a) and 1
(b) and the original plaintiff no.2 on 28.12.2012 did not file any
petition for impleadment of the purchasers, who are petitioners
in the instant application, before the learned court below after
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
sale of entire suit property from 25.07.2011 to 10.07.2012. That
apart, leave of the court was not taken by the plaintiffs as per
requirement under Section 52 of the Transfer of Property Act
before assigning of the land in favour of the purchasers. The
learned senior counsel stressed on the principle that a person
coming to a court of law must come with clean hands and
suppression of material facts by such a party disentitles him for
grant of any relief. Further, as the plaintiffs have already
transferred all their land holding, execution of General Power of
Attorney dated 28.12.2012 is void ab initio and nullity in the
eyes of law since the last sale took place on 10.07.2012. The
learned senior counsel further submitted that the General Power
of Attorney, Jang Bahadur Singh, was directly involved and was
also a direct beneficiary of the suit properties much prior to
28.12.2012 which irrevocably demonstrates the collusion and
fraud perpetuated by the said Jang Bahadur Singh and the three
plaintiffs in the said Title Suit No. 112 of 2011, who are also the
appellants in the Title Appeal No. 79 of 2019. The learned
senior counsel next submitted that the deposition of Jang
Bahadur Singh was recorded in Title Suit No. 112 of 2011 on
25.07.2014 and in his deposition, the petitioner no.4 Jang
Bahadur Singh has deliberately and willfully with oblique and
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
malafide intention suppressed the material fact that he had
purchased part of the suit property by registered deeds of sale
dated 14.09.2011 and 10.07.2012. The said Jang Bahadur Singh
also concealed the fact about purchase of remaining property by
his immediate family members namely, wife, sons, daughters,
brothers and father-in-law. This petitioner as witness filed his
affidavit on 25.07.2014 and was cross-examined on 25.07.2014,
07.08.2014, 23.08.2014, 06.09.2014, 20.10.2014, 13.11.2014,
18.11.2014, 27.06.2016 and 11.07.2016. But this witness
deliberately and willfully suppressed the material facts. Since
fraud vitiates everything, suppression of material facts in a court
of law is also a fraud and for this reason, the petitioners have no
case before this Court. In this regard, the learned counsel relied
on the decision of the Hon'ble Supreme Court in the case of
Yashoda Vs. Sukhwinder Singh and Ors. (Civil Appeal No.
8247 of 2009). At the same time, vendors of the said Jang
Bahadur Singh made themselves liable for perjury as they have
deliberately, willfully with oblique malafide intention
suppressed the material facts with regard to the said five
registered deeds of sale. It is, therefore, expedient in the interest
of justice and to uphold the majesty of law that the said Jang
Bahadur Singh and Sushant Kumar are proceeded under Section
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
340 of the Code of Criminal Procedure. Further, the original
plaintiff no.2 Sushant Kumar has suppressed this material fact in
his affidavit and also in his cross-examination and thus, floated
the statutory requirement under Order 18 Rule 4 (1) (2) of the
Code of Civil Procedure.
9. The learned senior counsel further submitted that
the petitioner nos. 1 to 4 filed a petition on 06.12.2022 with a
prayer to implead them as co-appellants in Title Appeal No. 79
of 2019 admitting the execution of sale deeds in their favour by
the original plaintiffs. Further, averment has been made in the
petition dated 06.12.2022 that the petitioner nos. 1 to 4 hold
absolute right, title and interest over 4 Katha 1.5 dhur land out
of 8 Katha and 3 Dhur. Thereafter, the petitioner nos. 5 and 6
filed a petition under Order 1 Rule 10 (2) and Section 151 CPC
on 06.01.2023 with prayer to implead them along with the
petitioners of petition dated 06.12.2022 as co-appellants. These
petitioners also admitted the transfer of land of suit property
through different registered deeds of sale. The learned senior
counsel next submitted that six purchasers who are joint
purchasers cannot be impleaded as co-appellant after a lapse of
11 years from the date of execution of said registered deeds of
sale more particularly when they purchased the said property in
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
complete violation of Section 52 of the Transfer of Property Act.
Further, the petitioner Jang Bahadur Singh who hold General
Power of Attorney had been doing regular Pairvi in the case
before the learned trial court in Title Suit No.112 of 2011. The
said Jang Bahadur Singh is the father of the petitioner Vijay
Shankar and Sangita Kiran and husband of Shanti Singh and
brother of Surendra Singh and Ram Bahadur Singh. So, the
petitioners were having all knowledge and in view of their
conduct and complete lack of bonafide, the learned appellate
court has rightly passed the impugned order rejecting the
impleadment of the petitioners in Title Appeal No. 79 of 2019.
Further, the petitioners are admittedly the transferees pendente
lite and are not necessary parties in Title Appeal No. 79 of 2019
and the appellants are competent in law to take care of rights of
the purchasers. The learned senior counsel further submitted that
the impugned order has been passed after proper application of
judicial mind and the prayer for impleadment of the petitioners
was rejected on cogent, valid and lawful ground. The learned
senior counsel further relied on the decision of the Hon'ble
Supreme Court in the case of Chennai Metropolitan Water
Supply & Sewerage Board and others v. T.T. Murali Babu,
reported in, AIR 2014 SC 1141 to buttress the point that the
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
doctrine of delay and laches should not be lightly brushed aside.
Such delay may have impact on others' ripened rights and may
unnecessarily drag others into litigation. In the instant case, the
petitioners slept over their rights and does not deserve any
indulgence. The learned senior counsel further submitted that
this Court took note of the fact about intervenors-petitioners
having knowledge of the litigation and moving for impleadment
after much delay in another case and rejected the prayer for
impleadment vide order dated 20.07.2023 passed in Second
Appeal No. 73 of 2021. Therefore, as the petitioners were all
along having the knowledge of pendency of Title Suit No. 112
of 2011, the petition filed by them on 06.12.2022 and
06.01.2023 are hopelessly time barred and for this reason,
rightly rejected by the learned first appellate court vide
impugned order dated 17.01.2023. There is no specific denial
about the petitioners' knowledge about Title Suit No. 112 of
2011, rather there is implied admission. In their petitions filed
for impleadment, the petitioners have not stated as to when they
got the knowledge. As such, the petitioners admittedly were
aware about the pendency of Title Suit No.112 of 2021. Hence,
the petitions of the petitioners were time barred under Article
137 of the Limitation Act and have been rightly rejected by the
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
learned first appellate court.
10. In reply to the submission of learned counsel for
the respondent no.1, the learned counsel for the petitioners
submitted that there could be no limitation in such matter as the
amendment could be allowed at any stage. When there is
devolution of interest, parties can be added or deleted. The
learned counsel referred to Order 22 Rule 10 of the Code of
Civil Procedure regarding assignment of interest to support his
claim. The learned counsel relied on the decisions of Hon'ble
Apex Court in the cases of Devendra Kumar Sarewgee and
Ors. Vs. Purbanchal Estates (P) Ltd. and Ors., reported in
(2006) 9 SCC 199 & Mumbai International Airport Pvt. Ltd.
vs. Regency Convention Centre & Hotels Pvt. Ltd. & Ors.,
reported in (2010) 7 SCC 417. The learned counsel further
submitted that the plaintiffs/appellants have been living outside
the state and it is very difficult for them to pursue the present
appellant proceeding. So the present petitioners are necessary
parties in the appeal after purchasing the suit land during the
pendency of the title suit. The learned counsel further submitted
that the respondents have not denied this contention in their
counter affidavit. Further, the respondent no.1 has not stated
anything as to how he is going to be prejudiced by impleadment
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
of the intervenors as parties in the appeal and how their rights
would be prejudicially affected. The learned counsel further
submitted that whatever submission has been made against the
petitioner no.4 holding a General Power of Attorney and not
disclosing the fact about his interest in the case, the same would
not be applicable on other petitioners. It cannot be said that
apart from the petitioner no. 4, all other petitioners were having
knowledge about the pending litigation and they moved
impleadment application after delay. Furthermore, there was no
injunction in the title suit and the plaintiffs could have sold the
suit property without any hindrance. Thus, learned counsel
submitted that the petition of the petitioners is quite in order and
the learned first appellate court erred when it rejected the
petitioner of intervenors-petitioners for impleadment and hence,
the order dated 17.01.2023 be set aside and the instant petition
be allowed.
11. Perused the record.
12. Having regard to the facts and circumstances of
the case and submissions made on behalf of the parties, the issue
which mainly concerns this Court is as to whether the
petitioners are proper and necessary parties before the learned
appellate court or not.
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
13. Order 1 Rule 10 (2) of the Code of Civil
Procedure reads as under :
"10 (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".
14. A bare reading of the aforesaid provision shows
the court may at any stage of the proceeding can or add or delete
party to a suit if it feels presence of such party might be
necessary in order to enable the court effectually and completely
adjudicate upon and settle all the questions involved in the suit.
Now, appeal is continuation of trial and the petitioners came
before the appellate court seeking their impleadment. Further,
Article 137 of the Limitation Act provides that any application
for which no specific period of limitation has been provided is
to be filed within three years and reliance could be made on the
decision of the Hon'ble Apex Court in the case of Kerala State
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
Electricity Board Trivandrum Vs. T.P. Kunhaliumma, reported
in AIR 1977 SC 282, which makes it clear that Article 137 of
the Limitation Act is applicable to all provisions of the Civil
Procedure Code and it was even applicable to the petition filed
under other enactments.
15. Before considering whether the petitioners are
proper and necessary parties before the learned appellate court,
certain relevant facts are to be considered first. There has been
no denial that the petitioner no. 4, Jang Bahadur Singh, had been
holding General Power of Attorney for original plaintiffs and
had been prosecuting the title suit on behalf of the plaintiffs.
During the pendency of the title suit, the original plaintiffs
transferred almost all of the suit land in favour of the petitioners.
So conduct of the petitioner no.4, in holding the General Power
of Attorney for the plaintiffs even after devolution of interest of
plaintiffs had taken place, was itself wrong. Further, wrong has
been committed by the petitioner no. 4 in not disclosing his
interest after purchasing the property pendente lite. The conduct
of the petitioner no. 4 is totally blameworthy. It is also the fact
that other petitioners are wife, sons, daughter and brothers of the
petitioner no. 4 and for this reason, the learned first appellate
court recorded the finding that the petitioners are not bonafide
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
purchasers without notice. This Court has no quarrel with the
finding arrived at by the learned first appellate court regarding
the conduct of the petitioners. Since the petitioner no.4 was
holding General Power of Attorney on behalf of his vendor and
subsequent to the purchase of property by the petitioner no.4
and other petitioners, the petitioner no.4 continued to hold the
power of attorney. The act of the petitioner no.4 would thus bind
the subsequent purchasers who are his wife, sons, daughter and
brothers. The petitioners could not feign ignorance regarding
previous proceedings.
But, at the same time, it is an admitted fact that the
petitioners have purchased almost of the suit property except 10
Dhur of land. After selling all of the suit property, the original
plaintiffs could neither have any incentive nor motivation to
pursue the litigation, as it has been pleaded before this Court
that the present petitioners/purchasers are the necessary party in
the appeal when the intervenors/petitioners have purchased the
suit land and the original plaintiffs have been residing outside
the State and could not pursue the proceeding at the appellate
stage. In such situation, if the petitioners are not allowed to
participate in the proceeding before the learned first appellate
court, it would not be in the interest of justice. It goes without
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
saying that if the original plaintiffs do not pursue the appeal
earnestly, the rights of the petitioners might be affected. There is
no right under Order 1 Rule 10 (2) CPC to a non-party to be
impleaded as a party to a lis since it gives a discretion to a court
to strike or add parties at any stage on a proceeding. However,
the court would always consider the situation, if the right and
the interest of the petitioners are likely to be affected in case
they are not allowed to participate in the appeal as co-appellants
when the original plaintiffs/appellants might have lost interest in
their case after selling all the properties.
16. As already observed earlier that the petitioners
are not innocent bystanders and through the petitioner no.4, they
were having notice of the pending litigation, still they chose not
to get themselves impleaded as a party before the learned trial
court, thus effectively closing their options which would have
been available to them at that time. The petitioners are
purchasers pendente lite and they cannot claim any extra
privilege except what was available to their original vendors.
Further, they would be bound by all the acts of their vendor
done as original plaintiffs. Being purchasers/transferees of the
disputed property, the doctrine of lis pendens would come to
fore and a decision of a court in the suit will bind up those who
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
claim interest in the property and also those who derive title
pendente lite.
17. However, as there is likelihood of rights of the
petitioners getting affected and even though the petitioners
could be said to have notice, considering the fact that the
petitioners are having substantial interest in the property in
dispute, they are required to be impleaded as co-appellants.
Reliance, in this regard, could be placed on the decisions in the
matters of Kasturi Vs. Iyyamperumal and Ors., reported in,
(2005) 6 SCC 733 & Mumbai International Airport Pvt. Ltd.
vs. Regency Convention Centre & Hotels Pvt. Ltd. & Ors.,
reported in, (2010) 7 SCC 417. But this impleadment must be
subject to heavy cost considering the conduct of the petitioners
and further subject to the condition that the petitioners would
not hinder the disposal of the appeal before the learned first
appellate court in any manner.
18. Having regard to the discussion made so far, the
intervention petition dated 06.12.2022 (Annexure-2) of the
petitioner nos. 1 to 4 as well as intervention petition dated
06.12.2022 (Annexure-3) of the petitioner nos. 5 to 6 are
allowed subject to payment of cost of Rs.25,000/- to the
respondent no.1 on the first date of hearing before the learned
Patna High Court C.Misc. No.578 of 2023 dt.05-01-2024
first appellate court. The petitioners are directed to be impleaded
as co-appellants in Title Appeal No.79 of 2019 before the
learned first appellate court. Consequently, the impugned order
dated 17.01.2023 (Annexure-4) passed by the learned
Additional District Judge-VI, Danapur, Patna in Title Appeal
No.79 of 2019 is partly set aside.
19. The learned appellate court would make all
endeavours to dispose of the appeal within three months from
the date of receipt/production of a copy of this judgment.
20. It is made clear that being purchasers pendente
lite, the petitioners are bound by the acts of the original
plaintiffs before the learned trial court and could not question
the same in the appellate court. The impleadment of the
petitioners as co-appellants is only for the purpose of pursuing
the appeal before the learned first appellate court.
21. With the aforementioned observations and
directions, the instant petition stands allowed.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR A.F.R
CAV DATE 11.12.2023
Uploading Date 05.01.2024
Transmission Date N.A.
