Allowed

Sardhar Bishan Singh v. Irukulla Sadanandam (died per L.R)

Telangana HC8 Apr 2010CRP/5458/2009

Case brief

AI extract

What is this about?

In a civil revision petition under Article 227 of the Constitution, this court allowed an application to implead a bona fide purchaser pendente lite, holding that his presence is necessary to effectively adjudicate title disputes and prevent multiplicity of proceedings.

What did the court decide?

The impugned order dismissing the petition for impleadment is set aside, and the Civil Revision Petition is allowed.

Sardhar Bishan Singh Vs Irukulla Sadanandam (died per… — Property and Title | Telangana HC (2010)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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THURSDAY, THE EIGHTH DAY OF APRIL TWO THOUSAND AND TEN

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PRESENT

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THE HON'BLE SRI JUSTICE K.C.BHANU

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CIVIL REVISION PETITION No. 5458 OF 2009

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Between :

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Sardhar Bishan Singh. ...PETITIONER

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A N D

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Irukulla Sadananda and others. …RESPONDENTS

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THE HON'BLE SRI JUSTICE K.C. BHANU

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CIVIL REVISION PETITION No. 5458 OF 2009

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O R D E R:

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This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the order, dated 14.10.2009 in I.A. No.211 of 2009 in O.S.No. 6 of 2005, on the file of Senior Civil Judge, Karimnagar, whereunder and whereby, the application filed under Order I Rule 10 of the Code of Civil Procedure, 1908, to implead the petitioner as plaintiff No.3 in the suit, was dismissed.

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The respondents 1 and 2 are the plaintiffs, and the respondents 3 to 6 are the defendants, in the suit.

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2. It is stated in the petition that the petitioner purchased the suit schedule land from second respondent under a registered sale deed, dated 13.04.2007, and in pursuance of the said sale deed he was inducted into possession of the said property; and ever since the date of purchase, he has been in possession of the said land.

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3. The respondent 3 to 6 filed their counter opposing the petition stating that the respondent no.2 is not having title over the schedule land and so no title is conveyed in favour of the petitioner under the registered sale deed executed by the second respondent and that the petitioner has no locus standi to file the application; that the suit land was fallen to the share of respondents 3 to 6 and that the patadar pass books and title deeds were given; that, as the respondent no.2 has no title in respect of the suit land, he cannot transfer a better title than what he has got.

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4. The trial court upon consideration of the material available on record came to the conclusion that the petitioner purchased the suit schedule land during the pendency of the suit, and therefore, principle of doctrine pendite lite is applicable and hence dismissed the petition. Challenging the said order the revision petition is filed.

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5. Now the point for determination is whether the order of the Trial Court is correct, legal and proper ?

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6. Learned counsel for the revision petitioner contended that the petitioner is a bona fide purchaser of the schedule property for a valuable consideration, and if he is not brought on record, his right with regard to suit schedule land is affected, and that in the absence of the petitioner, the suit cannot be disposed of effectively and therefore, he prays to set aside the impugned order.

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7. Learned counsel for the respondents contended that the petitioner/proposed party is not necessary party and the alleged vendor has no title to the property and therefore, the trial court dismissed the application; and the sale transaction in favour of the petitioner is hit by Section 52 of Transfer of Property Act, 1882, and the trial court has rightly dismissed the petition.

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8. Under Order I Rule 10 C.P.C., any person can be brought on record if he shows that he has got some semblance of right in the property and in his absence an effective decree cannot be passed.

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Therefore, it must be shown that the proposed party must have some semblance of right in the property. The suit is filed for mere perpetual injunction by the sole plaintiff and after his death his legal representative was brought on record as the second plaintiff. Even in a suit for permanent injunction, the petitioner must show his prima facie title to the property in question which is a sine qua non for grant of injunction. Thereafter the petitioner must establish balance of convenience and irreparable injury that would be caused to him if injunction is not granted. If the petitioner shows that balance of convenience is in his favour and irreparable injury would be caused, still he is not entitled for injunction unless he establishes his prima facie title.

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9. It is the case of the original plaintiff that he purchased the property in the year 1978 from the original owner and pattader Gopu Veeraiah, through registered sale deed. Whereas the case of the defendants is that they got the property by virtue of oral partition, and thereafter the defendants were given title deeds, pattadar pass books, and they claim that they are cultivating the land. Therefore, the title of the parties is in serious dispute which has to be decided and determined during the trial. No doubt, when the suit is pending, the proposed party purchased the property in question from the legal representatives of the deceased first plaintiff i.e., plaintiff No.2. Therefore, the sale transaction entered into by the proposed party is hit by doctrine of pendite lite. The effect of the doctrine of lis pendens as embodied in Section 52 of Transfer of Property Act is not to annul all voluntary transfers effected by the parties to a suit but only to render it subservient to the rights of the parties thereto under the decree or order which may be made in that suit. Its effect is binding on the transferee if he happens to be a third person even if he is not a party to it. The transfer will remain valid subject to the result of the suit.

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10. Learned counsel for the petitioner relied upon a decision

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reported in Amit Kumar Shaw and another Vs. Farida Khatoon and another^[1] it is held thus:

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“The doctrine of lis pendens applies only where the lis is pending before a Court. 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 pendente lite can be added as a proper party if his interest in the subjectmatter of the suit is substantial and not just peripheral. A transferee pendente lite 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 XXII Rule 10 an alienee pendente lite may be joined as party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alilenee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite 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 the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case”.

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From the above decision, it is clear that a transferee

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pendente lite has got interest in the property in question.

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11. He also relied upon a decision reported in V.Narayana Reddy

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Vs. Smt Ani Narayanan and anothe r^[2] wherein this Court held thus:

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“ The analogy that is being confirmed from time to time indicates that the criteria for impleadment

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of a party under the provisions of Order 1 Rule 10 of C.P.C. is whether such proceeding or suit can be determined without impleading a party who is sought to be impleaded and for rendering complete justice such party is required to be added to such proceedings and if such party is not impleaded, the judgment which is going to be rendered has an effect on such person, is required to be considered. The other aspect the Court is required to keep in mind is whether if such a party is not added to the proceedings, whether it would lead to multiplicity of proceedings. Upon consideration of the above said principles, the apex Court held in the above said judgments that if a party sought to be impleaded as a proper and necessary party to the proceedings, they can implead at any stage of the proceedings”.

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From the above decision, it is clear that for rendering the complete justice, a party can be impleaded.

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12. On the other hand the learned counsel for the respondents 3 to 6 relied upon a decision in Sanjay Verma Vs. Manik Roy and Ors .^[3] wherein this Court held thus:

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“The principles specified in Section 52 of the T.P. Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the T.P. Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-

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matter of the suit. The Section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court”.

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Now doubt, the above decision shows that without leave of the court the property cannot be alienated.

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13. The learned counsel for the respondents 3 to 6 also relied upon a decision in Sarvinder Singh Vs. Dalip Singh & Ors. Page 59^[4] , wherein this Court held thus :

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“Section 52 of the Transfer of Property Act envisages that “during the pendency in any Court having authority within the limits of India….. of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.” It would, therefore, be clear that the defendants in the suit 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 appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendents by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit”.

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14. The learned counsel for the respondents 3 to 6 also relied upon a decision in Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb & ANR^[5] . wherein the Court held thus :

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“It is not disputed that the present petitioner purchased the property during the pendency of the suit and without seeking leave of the Court as required by Section 52 of the Transfer of Property Act. The petitioner being a transferee pendente lite without leave of the Court cannot, as of right, week impleadment as a party in the suits which are long pending since 1983. It is true that when the application for joinder based on transfer pendente lite is made, the transferee should ordinarily be joined as party to enable him to protect his interest. But in instant case, the trial court has assigned cogent reasons for rejecting such joinder stating that the suit is long pending since 1983 and prima facie the action of the alienation does not appear to be bona fide. The trial Court saw an attempt on the part of the petitioner to complicate and delay the pending suits”.

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In those cases, it is held that prima facie the action of alienation is not shown to be the bona fide. Therefore, those decisions have no application to the facts of the present case.

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15. The learned counsel for the respondents 3 to 6 also relied upon a decision reported in Sunil Gupta Vs. Kiran Girhotra and Ors .^[6] wherein the Court held thus :

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“A transferee of a property during the pendency of proceeding is not a necessary party. Citations are necessary to be made to only of those who, inter alia, claim through or under the Will or deny or dispute the execution thereof”.

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He also placed strong reliance on a decision in Kuna Ramulu

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Vs. Kuna Annapurnamma and others^[7] wherein the court held thus:

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“The legal position is no more res integra in view of the judgment of the Apex Court in Sarvinder Singh Vs. Dalip Singh, 1996(5) SCC 539. The property having been purchased during the

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pendency of the litigation is hit under Section 52 of the Transfer of Property Act. Therefore, the purchaser is neither a necessary party nor a proper party and he cannot be permitted to come on record. In view of the clear legal position, although the 1^st respondent-the revision petitioner has not filed any counter, the application could not have been allowed by the Court below”.

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16. The learned counsel for the respondents 3 to 6 also relied on a decision in Ramesh Chawla Vs. N.Srihari and others^[8] wherein it is held thus :

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“Therefore, the application herein is neither necessary not proper party and cannot be impleaded in this appeal. The Full Bench decision of Madras High Court and the Division Bench decision of this Court relied on by the learned Counsel for the applicant do not lay down law different from the law as discussed above. The Full Bench of Madras High Court laid down that in case of alienation of undivided share either in whole or in certain specific item by coparcener of joint Hindu Family, the right of alienee is to stand in this shoes of vendor and work out his rights in a suit for partition. Applying the same principle, the Division Bench of this Court allowed the appeal of a subsequent alienee who purchased the entire ‘A’ schedule property in a suit for partition among coparceners holding that an alienee enters the shoes of alienor and can maintain action at the stage of final decree or by way of separate suit. In the present case on hand if the applicant is allowed to join as contesting respondents, the same would delay the proceedings and certainly would prejudice the parties to the suit especially petitioner purchased the property without obtaining necessary sanction under Section 52 of the Transfer of Property Act”.

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17. He also relied upon a decision reported in Major P.T.Choudary

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Vs. Mohammed Abdul Basheer Khan and others ,^[9] wherein it was held thus:

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“The judgment is from the Supreme Court and this Court is bound to follow the same. But it may be pointed out that whether a transaction was hit by Section 52 of the Act or not cannot be decided in an application for impleadment. The proper course appears to be that after impleadment the question of application of Section 52 of the Act could be decided in the trial. But since there is a direct judgment of the Supreme Court, this Court has no option, but to follow the judgment and reverse the order of the trial court”.

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There is no dispute about the law laid down in the above cases, because alienation was made without the leave of the Court and such an alienation is bad under law in view of Section 52 of the Transfer of Property Act, 1882.

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18. From the above decisions it can also be said that if the right and interest of the bona fide purchaser for a valuable consideration will be affected that issue has to be decided by the Court below. Necessarily the purchaser pendente lite has to file a separate suit for declaration of his title and possession. But in the decision reported in Kasturi Vs. Iyyaperumal and others^[10] , wherein it was held thus: (para 13)

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“From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence non decree can be passed by the court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the Court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.”

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19. In the light of the above controversy, it is necessary to consider the relevant provision of C.P.C. under which the Court is empowered to add a party in the suit. Order I Rule 10(2) C.P.C. read thus:

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“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.”

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Therefore, the above provision can be invoked by the defendant or plaintiff as the case may be, in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Therefore, two requirements are to be satisfied for determining the question as to whether who is a necessary party viz., (1) There must be a right to some relief against such party in respect of controversy involved in the proceedings and (2) No effective decree can be passed in the absence of such party.

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Therefore, from the above decisions, it is clear that the proposed party must show some semblance of right and interest in the subject matter or a direct interest in the subject matter of the suit. The primary object of Order I Rule 10(2) of the C.P.C. is to bring before the Court at one and the same time all the persons interested in the dispute so that all the controversies in the suit may be finally determined once for all in the presence of all parties without delay, inconvenience and expenses of the several actions, trials and inconclusive adjudication.

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20. In Kasturi’s decision when there is some semblance of right

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through the property in question, the party can be impleaded so as to safeguard his interest if the proposed party is a bona fide purchaser of property during the pendency of the suit. If he is a bona fide purchaser for a valuable consideration then his right will be affected, in the subject matter of the suit and the sale transaction entered between the second defendant and the proposed party has to be decided in the same trial. So, in order to avoid multiplicity of proceedings, the second plaintiff who sold away the property during pendency of litigation must not have any interest in the proceedings. Whether the proposed party is a bona fide purchaser for a valuable consideration or not, and whether he has got semblance of right in respect of the schedule property, are to be decided only after he comes on record, and without his presence, effective and appropriate orders cannot be passed in the proceedings. So, in these circumstances, in order to avoid multiplicity of proceedings, and to decide the issues involved in the suit effectually between the parties, the presence of proposed party is necessary. The trial Court, without considering these aspects, dismissed the petition, and hence, the impugned order is set aside.

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21. Accordingly, the Civil Revision Petition is allowed. There shall be no order as to costs.

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_______________ K.C.BHANU. J

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APRIL 08, 2010.

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YVL

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[1] AIR 2005 Supreme Court 2209 [2] 2009 (4) ALT 9

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[3] AIR 2007 Supreme Court 1332