Telangana High Court

Kolluri Sai Kishore vs V.S. Harish Kumar on 25 October, 2024

Author: G.Radha Rani

Bench: G.Radha Rani

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                                                                           Dr.GRR,J
                                                                  CRP No.2461 of 2024




         THE HONOURABLE Dr. JUSTICE G.RADHA RANI

                          C.R.P.No.2461 of 2024

ORDER:

This Civil Revision Petition is filed by the petitioners - proposed

defendants 2 and 3, aggrieved by the order dated 05.07.2024 passed in I.A

No.945 of 2022 in O.S No.47 of 2020 by the Senior Civil Judge at Sanga

Reddy.

2. The facts of the case in brief are that the respondent No.1- plaintiff

filed the suit for specific performance of Agreement of Sale dated

11.11.2019 against the respondent No.2 herein - defendant No.1 in the

month of November 2020, contending that the defendant agreed to sell the

suit schedule land admeasuring 172 Sq.yards of plot No.208 in

Sy.Nos.993/44 and 993/45/A situated at Ameenpur Village, Patancheruvu

Mandal, Sanga Reddy District @ Rs.14,000/- per sq.yard, which would

come to Rs.24,08,000/- on 11.11.2019 and received a sum of Rs.2,00,000/-

towards advance sale consideration and executed the Agreement of Sale

and the plaintiff agreed to pay the balance sale consideration within (6)

months from 11.11.2019.

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3. The defendant filed written statement contending that he executed an

Agreement of Sale dated 03.08.2019 in favour of one Kolluri Sai Kishore

for a sale consideration of Rs.50,00,000/- (Rupees Fifty Lakhs Only) prior

to entering into agreement of sale with the petitioners herein and the said

Kolluri Sai Kishore paid an amount of Rs.10,00,000/- (Ten lakhs Only) to

the defendant towards part sale consideration and he executed a registered

sale deed in favour of Kolluri Sai Kishore and Punna Anil Kumar on

25.10.2021, in the Sub Registrar's Office, Sangareddy. After completion of

registration, the registering authorities found that there was a status-quo

order pending before the Court in respect of the said property vide I.A

No.447/2020 in O.S. No 47/2020 on the file of Senior Civil Judge at Sanga

Reddy, as such, kept the registration on hold. He further submitted that he

handed over the original sale deed document No. 6560/2008

dated.17.04.2008 along with link documents to Kolluri Sal Kishore and

Punna Anil Kumar and also delivered the vacant possession of the said

property to them.

4. Subsequently, during the pendency of the suit, the proposed

defendants 2 and 3 filed I.A No.945 of 2022 under Order 1 Rule 10 read

with Rule 28 of Civil Rules of Practice and Section 151 of

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Civil Procedure Code to implead them as defendants 2 and 3 in the

pending suit contending that they were bonafide purchasers and earlier

agreement holders and that they were necessary parties to the suit. The

said petition was dismissed by the learned Senior Civil Judge at Sanga

Reddy on 05.07.2024. Aggrieved by the dismissal of the said I.A., the

proposed parties preferred this Civil Revision Petition.

5. Heard learned counsel for the petitioners and the learned counsel for

the respondent - plaintiff.

6. Learned counsel for the petitioners contended that the observation of

the trial court that as per Section 52 of the Transfer of Property Act (for

short 'T.P Act'), any transactions which occurred during the pendency of

the suit were barred was not correct. Section 52 only prohibited a transfer,

but did not state that the same would result in illegality. The trial court

ought to have considered that the petitioners were bonafide purchasers and

to avoid multiplicity of litigation the petitioners ought to have been

permitted to be impleaded in the suit. Being transferees, they would be

bound by the outcome of the suit. Being bonafide purchasers, they

obtained peaceful possession of the schedule property from the defendant

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No.1 and they were proper and necessary parties to the suit. The defendant

having sold the subject property to the petitioners by taking the entire sale

consideration might not contest the suit and the trial court ought to have

allowed their petition by permitting them to be impleaded as defendants in

the suit to avoid multiplicity of litigation and delay and relied upon the

judgment of the Hon'ble Apex Court in Hardev Singh Vs. Gurmail

Singh (Dead) By Lrs., in Civil Appeal No.6222 of 20001 and in Yogesh

Goyanka Vs. Govind & others 2.

7. Learned counsel for the respondent-plaintiff, on the other hand,

contended that only to protract the suit filed by the plaintiff, the defendant

pressed into service a fake agreement of sale dated 3.8.2019 claiming that

the petitioners paid an amount of Rs.10,00,000/- in cash towards purchase

of the suit plot and the respondent No.2 - defendant hurriedly tried to enter

into registered sale deed on 25.10.2021 before the Sub Registrar, Sanga

Reddy, who objected registration on the ground that status quo orders were

in force vide I.A No.447/2020 in O.S. No 47/2020. As the petitioners

failed in their attempt to get the sale deed registered, they were trying to

get themselves impleaded in the suit filed by the plaintiff as defendants.

AIR 2007 SC 1058

2024 law suit (SC) 584

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The respondent No.2 - defendant had not taken any leave of the Court to

sell the property to the present petitioners. Having not done so, the

proposed parties could not seek to implead themselves in the suit. The

petitioners could not be termed as necessary parties in a suit for specific

performance as they had purchased during the pendency of the suit and

relied upon the judgment of the High Court of Madras in Kesari

Jabamani Vs. V.Radhakrishnan & others 3 and the Hon'ble Apex Court

in Gurumit Singh Bhatia Vs. Kiran Kant Robinson and Others 4.

8. Perused the record and the orders passed by the learned Senior Civil

Judge at Sanga Reddy in I.A No.945 of 2022 in O.S No.47 of 2020 dated

05.07.2024. The learned Senior Civil Judge, Sanga Reddy observed that

the transaction of executing the sale deed by the defendant in favour of

proposed petitioners was stated to be on 25.10.2021, which was during the

pendency of the suit and the same would attract the provisions of Section

52 of T.P Act. The parties were at liberty to pursue alternate remedies, but

could not be impleaded in a suit for specific performance filed by the

plaintiff which would change the scope and nature of the suit and

dismissed the petition. The observation made by the learned Senior Civil

2004 (0) Supreme (Mad) 556 4 2019 (5) ALD (SC) 166

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Judge, Sanga Reddy that the transaction occurred during the pendency of

suit was barred, was strongly opposed by the learned counsel for the

petitioners in the present revision petition, and relied upon the judgment of

the Hon'ble Apex Court in Hardev Singh Vs. Gurmail Singh (Dead) By

Lrs in Civil Appeal No.6222 of 2000 (1 supra), wherein it was held that

Section 52 of T.P Act, 1882 merely prohibited transfer, but did not state

that the same would result in illegality. The purchaser during the pendency

of the suit would be bound by the result of litigation and the transaction

could not be rendered as void. The other judgment of the Hon'ble Apex

Court, relied by the learned counsel for the petitioners, in Yogesh

Goyanka Vs. Govind & others (2 supra), was also to the extent that

doctrine of lis pendens under Section 52 of T.P Act does not nullify

transfers, but makes them subject to outcome of the litigation.

9. There is no dispute with the above proposition rendered by the

Hon'ble Apex Court in the above cases.

10. Apart from the above observations, the Hon'ble Apex Court in

Yogesh Goyanka Vs. Govind & others (2 supra) also held that:

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"The impleadment of transferee pendente lite is permissible to protect the interest amid potentional collusion among original parties".

The Hon'ble Apex Court specifically held that:

"20. In the particular facts and circumstances of this case, Mr. Sundaram has been able to satisfy this Court on the possibility of collusion between the Respondents. It is a fact that the Plaintiffs and Defendants are relatives. More importantly, Plaintiffs approached the court in the underlying Suit after a substantial delay of 11 years whereas admittedly, the revenue records were mutated to reflect the name of Respondent No. 21 since 2007. It is also curious that the claim of non-payment of consideration by the Appellant was made for the first time before this Court".

"21. On the other hand, the Appellant has a registered sale deed in his favor and has therefore seemingly acquired an interest in the Subject Land. Whether or not the consideration was paid, is a disputed question of fact that shall be determined by the Trial Court. Therefore, in the considered opinion of this Court, considering the totality of the circumstances in this case, including the fact that the trial has not progressed significantly, the Appellant herein, in the interest of justice, is entitled to impleadment in the underlying Suit in order to protect his interests, if any, in the subject Land".

11. As seen from the above observations, in the particular facts and

circumstances of the said case and as the court is satisfied about the

possibility of collusion between the respondents, the plaintiff and

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defendants being relatives and that they approached the court with a

substantial delay of (11) years and the appellant had a registered sale deed

in his favour and had acquired an interest in the subject land, the Hon'ble

Apex Court held that the appellant was entitled to be impleaded in the

underlying suit to protect his interest.

12. But the facts of this case are distinguishable from the facts of the

above case. The Hon'ble Apex Court, almost on similar facts in Gurumit

Singh Bhatia Vs. Kiran Kant Robinson and others (4 supra), which was

also a suit for specific performance wherein the appellant had also

purchased the suit property from the same vendor and was claiming that

he was prior agreement holder and to protect his interest contended that he

was a necessary and proper party, held that:

"Therefore, the short question which is posed for consideration before this Court is, whether the plaintiffs can be compelled to implead a person in the suit for specific performance, against his wish and more particularly with respect to a person against whom no relief has been claimed by him?".

"5.2 An identical question came to be considered before this Court in the case of Kasturi (supra) and applying the principle that the plaintiff is the dominus litis, in the similar facts and circumstances of the case, this Court observed and held that the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed

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to be added has direct and legal interest in the controversy involved in the suit. It is further observed and held by this Court that two tests are to be satisfied for determining the question who is a necessary party. The tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. It is further observed and held that in a suit for specific performance the first test can be formulated is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract to sell. It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character. In paragraphs 15 and 16, this Court observed and held as under:

"15. As discussed herein earlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the

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presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted hereinearlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted hereinearlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. In the case of Vijay Pratap v. Sambhu Saran Sinha [(1996) 10 SCC 53] this Court had taken the same view which is being taken by us in this judgment as discussed above. This Court in that decision clearly held that to decide the right, title and interest in the suit property of the stranger to the contract is beyond the scope of the suit for specific performance of the contract and the same cannot be turned into a regular title suit. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the

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appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinearlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property".

"16. That apart, from a plain reading of the expression used in sub rule (2) Order 1 Rule 10 CPC "all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff-appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court

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cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff-appellant on one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale."

"That thereafter, after observing and holding as above, this Court further observed that in view of the principle that the plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsion of the rule of law. In the aforesaid decision in the case of Kasturi(supra), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific

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performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. It is further observed and held by this Court in the aforesaid decision that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party defendants in such suit. The aforesaid observations are made by this Court considering the principle that plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. Therefore, considering the decision of this Court in the case of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original defendant no.1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs".

13. As the plaintiff is the 'dominus litis' and he cannot be compelled to

implead parties against whom he does not want to proceed and the suit was

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filed by the plaintiff for specific performance of the contract between him

and the respondent No.2- defendant to which the proposed petitioners are

not parties and a stranger to a contract could not be added as a party and

the scope of the suit for specific performance could not be enlarged to a

suit for title and possession, this court considers that the proposed

petitioners are not necessary parties to the suit. This Court does not find

any irregularity or illegality in the order of the trial court in dismissing the

application filed by the petitioners to implead them as proposed defendants

2 and 3.