Rajasthan High Court - Jodhpur
Rajendra Kumar vs Rameshwari on 19 November, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:46011]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 7992/2024
Rajendra Kumar S/o Kedar Sharma, Aged About 63 Years, 701-D
Road, Near Sardarpura Police Station, Jodhpur (Raj.)
----Petitioner
Versus
1. Rameshwari W/o Late Kedar Sharma, 701, 7Th D Road,
Near Sardarpura Police Station, Jodhpur (Raj.)
2. Smt Gayatri W/o Satynarayan D/o Late Kedar Sharma, G-
251, Shastri Nagar, Jodhpur (Raj.)
3. Mool Chand Sharma S/o Late Kedar Sharma, 701, 7Th D
Road, Near Sardarpura Police Station, Jodhpur (Raj.)
4. Pankaj S/o Ravindra Makad, Plot No.144 Bacharajji Ka
Baag, Chagan Mistriwali Gali, Near Bombay Motors,
Jodhpur.
5. Yogesh S/o Ravindra Makad, Plot No.144 Bacharajji Ka
Baag, Chagan Mistriwali Gali, Near Bombay Motors,
Jodhpur.
6. Bhavesh S/o Ravindra Makad, Plot No.144 Bacharajji Ka
Baag, Chagan Mistriwali Gali, Near Bombay Motors,
Jodhpur.
----Respondents
For Petitioner(s) : Mr. Jitendra Chopra
For Respondent(s) : Mr. J.K. Chandra
HON'BLE DR. JUSTICE NUPUR BHATI
Order Reserved on 13/11/2024 Pronounced on 19/11/2024
1. Though the matter was listed in the 'Fresh' category, on the joint request of both the parties, the matter is heard today itself.
2. This writ petition has been filed by the petitioners/plaintiffs under Article 226 and 227 of the Constitution of India challenging the order dated 16.04.2024 passed by learned Additional District (Downloaded on 20/11/2024 at 09:48:59 PM) [2024:RJ-JD:46011] (2 of 11) [CW-7992/2024] and Session Judge No. 3, Jodhpur in Civil Original Suit No. 162/2022, whereby the application filed by the petitioner under Order I Rule 10 of the Code of Civil Procedure, 1908.
3. The writ petition has been preferred with the following prayers:-
"(i) It is therefore, most humbly prayed that this writ petition may kindly be allowed and the order dated 16.04.2024 (Annexure-1) passed by Additional district and Session Judge, Jodhpur may kindly be declared illegal and the same may be quashed and set aside.
(ii) That subsequent purcharers may be impleaded as party respondent in Civil suit no 162/2022 (Rajendra Kumar Sharma v/s Rameshwari Sharma & Ors) for effectually and completely adjudication of the suit.
(iii) Any other order or direction that may be deemed fit, just and proper may kindly be issued in favour of the petitioner.
(iv) Costs may kindly be also awarded."
4. Briefly stated, the facts of the case are that the petitioner- plaintiff filed a suit (Annex.2) for partition and permanent injunction for his share in the ancestral property and to restrain the parties from alienating the said property. In response to the said suit, the respondents no. 1 to 5 (hereinafter as 'the respondents/defendants') filed their written statement (Annex. 3). Subsequently, the learned Trial Court vide order dated 07.07.2022, dismissed the injunction application filed by the petitioner-plaintiff.
(Downloaded on 20/11/2024 at 09:48:59 PM) [2024:RJ-JD:46011] (3 of 11) [CW-7992/2024]
5. In the meanwhile, the respondent/defendants sold the entire property in two parts to Smt. Firoza Bano and Mr. Abdul Rahuf Khan (hereinafter as 'the transferees pendente lite') vide registered sale deeds dated 06.01.2023 (Annex.5) and thus the petitioner/plaintiff filed an application (Annex.4) under Order I Rule 10 of the Code of Civil Procedure, 1908 (hereinafter as 'CPC') to implead the transferees pendente lite. Also, the petitioner/plaintiff filed an application for temporary injunction, which came to be rejected by the learned Trial COurt.
6. Subsequently, the application filed by the petitioner/plaintiff under Order I Rule 10 of CPC was also rejected by the learned Trial Court vide order dated 16.04.2024 (Annex.1) and thus, aggrieved by the order dated 16.04.2024 (Annex.1), the petitioner/plaintiff has preferred this writ petition.
7. Learned counsel for the petitioner-platintiff submitted that the learned Trial Court has erred in rejecting the application under Order I Rule 10 inasmuch as, by virtue of the registered sale deeds dated 06.01.2023 (Annex.5), interest in the disputed property had been vested upon Smt. Firoza and Mr. Abdul Rahuf Khan and thus, they have become a necessary party to the suit, and therefore, they deserve to be impleaded to the suit for proper and effective adjudication of the issues involved in the suit.
8. Learned counsel for the petitioner-plaintiff also submitted that the instant suit is for partition of the disputed property and during pendency of the suit, the disputed property has been alienated and if the subsequent purchaser is not impleaded, then it will call for a separate suit to enforce the right of the petitioner- (Downloaded on 20/11/2024 at 09:48:59 PM) [2024:RJ-JD:46011] (4 of 11) [CW-7992/2024] plaintiff, which will result in multiplicity of proceedings and thus, the subsequent purchasers should be impleaded to the suit.
9. Learned counsel for the petitioner/plaintiff further submitted that the respondent/defendants have acted against the statutory mandate of Section 52 of the Transfer of Property Act, 1882 ('ACt of 1882'), inasmuch as they have sold the disputed property during the pendency of litigation, thus creating rights of the third party, i.e. Smt. Firoza and Mr. Abdul Rahuf on the property pending lis. He also placed reliance upon the following judgments:
i. Thomson Press (India) Ltd. v. Nanak Builders and Investors P. Ltd. and Ors., reported in AIR 2013 SC 2389, passed by the Hon'ble Apex Court ii. Rakesh Goyal v Smt. Pushpa Gupta, passed by the Coordinate Bench of this Court, [S.B. Civil Leave to Appeal No. 2 of 2018 decided on 26.07.2018] iii. Robin Ramjibhai Patel v Anandibai Rama @ Rajaram Pawar & Ors., [Civil Appeal No. 10789 of 2016 decided on 10.11.2016], passed by the Hon'ble Apex Court.
iv. Rajesh Kumar Arora & Ors. v Smt. SHila & Ors., passed by the Hon'ble Delhi High Court [FAO (OS) No. 589 of 2013, decided on 02.02.2016].
v. Omana Amma v Thankomony Amma, passed by the Hon'ble Kerala High Court, [FAO No. 198 of 2019, decided on 14.01.2020]
10. Per contra, learned counsel for the respondents/defendants submitted that the learned Trial Court has rightly rejected the application under Order I Rule 10 of CPC, while considering the fact that the disputed property was owned by the (Downloaded on 20/11/2024 at 09:48:59 PM) [2024:RJ-JD:46011] (5 of 11) [CW-7992/2024] respondent/defendant no.1 herself and was not the ancestral property. He also submits that the partition of the property of Late Sh. Kedar Sharma, who was the husband of respondent/defendant no.1 and the father of the petitioner/plaintiff, had taken place between the petitioner/plaintiff and respondent no. 3 in the presence of other respondents who were also witnesses to the registered partition deed, therefore, petitioner/plaintiff cannot claim his share in the property, which was owned by the respondent/defendant no.1 and was purchased by respondent/defendant no.1 through her own savings.
11. Learned counsel for the respondents further submitted that the suit filed by the petitioner-plaintiff is for partition and Smt. Firoza and Mr. Abdul Rahuf Khan are not co-parceners, in the disputed property and therefore, not the necessary parties to the suit for partition.
12. This Court, upon perusal of the reply of the respondents/defendants to the instant writ petition and to the application filed under Order 1 Rule 10, finds that it is an admitted position that the property which is the subject matter of the partition suit has been sold, during the pendency of the suit (filed in 2022), to Smt. Firoza Bano and Mr. Abdul Rauf Khan (the proposed defendants/the transferees pendente lite) in two parts vide sale deeds dated 06.01.2023(Annex.5). Thus, it is hit by doctrine of lis pendens as stipulated under Section 52 of the Transfer of Property Act, 1882, which is reproduced as under: (Downloaded on 20/11/2024 at 09:48:59 PM)
[2024:RJ-JD:46011] (6 of 11) [CW-7992/2024] "52. Transfer of property pending suit relating thereto.
-- During the [pendency] in any Court having authority [[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government ***], of [any] suit or proceeding [which is not collusive and] in. which any right to immoveable 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."
13. The issue that this court has to adjudicate is whether the transferees pendente lite can be impleaded as party defendants in a partition suit under Order I Rule 10, CPC at the instance of the plaintiff?
14. Before adverting to adjudicate the issue on merits this court finds it apposite to refer to the position of law with respect to the issue at hand.
15. This court finds that the Hon'ble Supreme Court in Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd., (2012) 8 SCC 384 has summarised the principles for disposal of an application for impleadment under Order 1 Rule 10, CPC and the same are being reproduced as under:
"41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the (Downloaded on 20/11/2024 at 09:48:59 PM) [2024:RJ-JD:46011] (7 of 11) [CW-7992/2024] broad principles which should govern disposal of an application for impleadment are:
41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit. 41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court. 41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.
41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment."
Thus, a party, whose presence would enable the court to completely and effectively adjudicate upon issues can be impleaded though he may not be the person in favour or against whom a decree is to be made.
16. Further, this court finds that the Hon'ble Supreme Court in Dhanlakshmi v. P. Mohan, (2007) 10 SCC 719, while allowing the transferee pendente lite to be impleaded in the partition suit made following observation:
(Downloaded on 20/11/2024 at 09:48:59 PM)
[2024:RJ-JD:46011] (8 of 11) [CW-7992/2024] "5. Section 52 deals with a transfer of property pending suit. In the instant case, the appellants have admittedly purchased the undivided shares of Respondents 2, 3, 4 and 6. It is not in dispute that the first respondent P. Mohan has got an undivided share in the said suit property. Because of the purchase by the appellants of the undivided share in the suit property, the rights of the first respondent herein in the suit or proceeding will not affect his right in the suit property by enforcing a partition. Admittedly, the appellants, having purchased the property from the other co-sharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the appellants are necessary and proper parties to the suit, which is now pending before the trial court. We also make it clear that we are not concerned with the other suit filed by the mortgagee in these proceedings."
17. This court also finds that the Hon'ble Supreme Court in Yogesh Goyanka v. Govind, (2024) 7 SCC 524, while holding that there is no bar in law to implead the transferee pendente lite, made following pertinent obeservation:
"17. Therefore, the mere fact that RSD was executed during the pendency of the underlying suit does not automatically render it null and void. On this ground alone, we find the impugned order to be wholly erroneous as it employs Section 52 of the Act to nullify RSD and on that basis, concludes that the impleadment application is untenable. Contrary to this approach of the High Court, the law on impleadment of subsequent transferees, as established by this Court has evolved in a manner that liberally enables subsequent transferees to protect their interests in recognition of the possibility that the transferor pendente lite may not defend the title or may collude with the plaintiff therein (see the decision of this Court in Amit Kumar Shaw v. Farida Khatoon [Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403] & A. Nawab John v. V.N. Subramaniyam [A. Nawab John v. V.N. Subramaniyam, (2012) 7 SCC 738).
18. Similarly, we also find fault with the order of the ADJ and its misplaced reliance on Bibi Zubaida [Bibi Zubaida (Downloaded on 20/11/2024 at 09:48:59 PM) [2024:RJ-JD:46011] (9 of 11) [CW-7992/2024] Khatoon v. Nabi Hassan Saheb, (2004) 1 SCC 191] . The only principle emerging from the judgment of this Court in Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb, (2004) 1 SCC 191] is that transferees pendente lite cannot seek impleadment as a matter of right and to that extent, we agree with the ADJ. However, Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb, (2004) 1 SCC 191] does not place a bar on impleadment of transferees who purchase property without seeking leave of the Court. The decision of the Court in Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb, (2004) 1 SCC 191] turns on its own facts; the Court rejected the application for joinder therein noting that the underlying suit was pending since 1983 and upheld the finding of the trial court that the subsequent purchaser was not bona fide and attempted to complicate and delay the underlying suit. Therefore, the judgment in Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb, (2004) 1 SCC 191] , being distinguishable on facts, does not assist the respondents herein."
18. Therefore, the position of law with respect to the impleadment of a transferee pendente lite in a suit is that the court, under Order I Rule 10, CPC, can implead transferee pendente lite to a suit either on an application of the parties or suo moto for the complete and effective adjudication of all the issues. And the same also furthers the underlying object of CPC to avoid multiplicity of proceedings. Further, even if the suit is filed for partition the impleadment of the transferee pendente lite cannot be said to cause prejudice to the parties of the suit as in view of the doctrine of lis pendens as incorporated in Section 52 of the Transfer of Property Act, 1882 the right or interest of the transferee pendente lite in the suit property would be subject to the outcome of the suit and thus, would not change the nature of the suit.
(Downloaded on 20/11/2024 at 09:48:59 PM) [2024:RJ-JD:46011] (10 of 11) [CW-7992/2024]
19. Now, coming to the facts of the case it is important to note that the entire suit property has been alienated by the respondents/defendants during the pendency of the partition suit and as per the pleadings of the petitioner/plaintiff the transferees pendente lite are currently in possession of the entire suit property and the same has not been denied by the respondents/defendants. Further, it is important to note that the petitioner/plaintiff himself has filed the application for impleadment of the transferees pendente lite in order to avoid multiplicity of proceedings and to get all the issues completely and effectively adjudicated.
20. Although, this court is conscious of the fact that the interest of the transferees pendente lite in the suit property is subject to the outcome of the suit in view of Section 52 of the Transfer of Property Act, 1882 qua the rights of the respondents/defendants in the said property but the same does not mean that the transferees pendente lite have not acquired any right or semblance of right in the suit property in view of the fact that the entire suit property has been sold by the respondents/defendants to the transferees pendente lite vide registered sale deeds (Annex.5) during the pendency of the suit. Thus, looking to the fact that the entire suit property has been sold by the respondents/defendants to the transferees pendente lite, they have stepped into the shoes of the respondents/defendants, therefore, this court is of the view that the transferees pendente lite are proper and necessary parties to the suit and their addition as party defendants in the (Downloaded on 20/11/2024 at 09:48:59 PM) [2024:RJ-JD:46011] (11 of 11) [CW-7992/2024] suit would enable the court to effectually and completely adjudicate all the issues in the present case and would also avoid multiplicity of proceedings. Moreover, if the transferees pendente lite are added as party defendants to the suit no prejudice would be caused to any of the parties.
21. Accordingly, the instant writ petition is allowed and the order dated 16.04.2024 (Annex.1) is set aside. The application filed by the petitioner/plaintiff under Order I Rule 10, CPC, seeking to implead the transferees pendente lite i.e., Smt. Firoza Bano and Mr. Abdul Rahuf Khan as defendants in Civil Original Suit No. 162/2022, is allowed. Any application (s), if pending, shall also stand disposed of.
22. No order as to the costs.
(DR.NUPUR BHATI),J 37-/Surabhii/-
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