Gaddam Bhaskar Reddy And Another vs Dakuri Manavva And 18 Others
2022 Latest Caselaw 5047 Tel

     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

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.

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

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

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

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.

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

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

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

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

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

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.

Nvl