Andhra HC (Pre-Telangana)
Pannala Renuka And Anr. vs Kavali (Rajumouni) Venkataiah And Ors. on 1 September, 2006
Equivalent citations: AIR2007AP46, 2006(6)ALD761, 2007(1)ALT259
ORDER V.V.S. Rao, J.
1. The Respondents 4 to 6 herein (hereafter called, the plaintiffs) filed suit being O.S. No. 95 of 1999 against Respondents 7 and 8 (hereafter called, the defendants). The suit was filed on the file of the Court of the II Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar for declaration of title and delivery of possession of land admeasuring Acs.0.36 guntas in Survey No. 241 and Acs.7.19 guntas in Survey No. 248 situated at Thummalur Village of Maheshwaram Mandal in Ranga Reddy District (the suit schedule property). The plaintiffs alleged that they are absolute owners and possessors of suit schedule property, that the defendants erected fencing in the property claiming it to be their own and that the defendants are trying to interfere with the property of the plaintiffs. The suit was coming up for trial. In 2004, the plaintiffs filed another suit being O.S. No. 1073 of 2004 on the file of the Court of the I Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar against 9th respondent herein and ten (10) others including the second petitioner herein. This suit was filed for declaration of title, delivery of possession and permanent injunction and damages in respect of the land admeasuring Acs. 1.27 guntas and Acs.15.11 guntas situated in Survey No. 248 of Thummalur Village. In the said suit, they also referred to O.S. No. 95 of 1999. At that stage, the petitioners herein, who are the wife and husband, filed I.A. No. 938 of 2005 in O.S. No. 95 of 1999 under Order I Rule 10 of Code of Civil Procedure, 1908 (CPC) praying the Court of the II Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar, to implead them as Defendants 4 and 5. The application was opposed by the plaintiffs. The trial Court, by order dated 10-8-2005, dismissed I.A. No. 938 of 2005 placing reliance on two decisions of this Court in Ramesh Chawla v. N. Srihari and Ors. and Kuna Ramulii v. Kuna Annapurnamma and Ors. . Feeling aggrieved by this, the present civil revision petition is filed under Article 227 of Constitution of India.
2. Learned Counsel for the petitioners placed reliance on the decisions of the Supreme Court in Khemchand S. Choudhari v. Vishnu H. Patil , Raj Kumar v. Sardari Lal and Amit Kumar Shaw v. Farida Khatoon , in support of the submission that being the transferees of interest of the defendants, they are proper and necessary parties and, therefore, notwithstanding Section 52 of Transfer of Property Act, 1882 (TP Act, for brevity), they can be impleaded under Order XXII Rule 10 of CPC. He also points out that when this Court decided Ramesh Chawla's case (supra), the decisions of the Supreme Court in Khemchand S. Choudhari's case (supra) and Raj Kumar's case (supra), were not brought to the notice of this Court and, therefore, the petitioners can be impleaded as party defendants. Opposing the C.R.P., learned Counsel for the plaintiffs (Respondents 1 and 6) submits that as the petitioners purchased the property during the pendency of O.S. No. 95 of 1999 without obtaining leave of the Court, whether or not there is an order of the civil Court prohibiting the sale, their purchase is hit by the doctrine of Us pendens and, therefore, they cannot be brought on record as defendants.
3. Section 52 of Transfer of Property Act reads as under:
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 immovable 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 the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.-For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
4. The law on this aspect is very clear that unless it is permitted by the Court, during the pendency of any suit or proceeding, the property cannot be transferred by any party to the suit or proceeding so as to affect the rights of any party under the decree or order, which may be passed. The prohibition commences from the date of presentation of the plaint or institution of the proceeding in a Court of competent jurisdiction and shall continue until the suti or proceeding is disposed of by final decree or order in absolute terms; the exception being the Court can permit such transfer on such terms as may be imposed.
5. The Courts in India have taken a uniform view that a person, who purchases the property during the pendency of the suit as of right cannot claim to be necessary or proper party to the suit. It is altogether different that having regard to the circumstances of each case, the Court may permit the purchaser pendente lite to come on record not for the purpose of adjudicating amorphous or nebulous rights of such purchaser but only in conformity of the principles of equity. More often than not in suits filed for partition either at the stage of preliminary decree or at the stage of passing of final decree, the Courts have taken view that the purchasers of undivided shares of the parties to the suits can be impleaded for working out equities, in that undivided share, which was transferred, can be allotted to such party who sold pendente lite. This principle also has not been universally applied by the Courts in India. For instance, the purchasers who entered into sale transactions ignoring the prohibitory sale orders passed by the Court or purchasers who purchased the property to defeat the rights of others with mala fide intention are denied the impleadment.
6. In Ramesh Chawla's case (supra), this Court while considering Surjit Singh v. Harbans Singh , Sarvinder Singh v. Dalip Singh , Bakthavatsalam v. Anjapuli 2001 AIHC 509 (Mad.) and Bibi Zubaida Khatoon v. Nabi Hassan Sahab , the cases are arose out of partition suits, held that a transferee pendente lite without leave of the Court cannot seek impleadment as a party in the suit, as such purchase would be hit by Us pendens by operation of Section 52 of TP Act. It was further held therein as follows:
...a person cannot be impleaded as defendant merely because such person would be incidentally effected by the judgment of the trial Court or the appellate Court. The purchaser of suit schedule property during the pendency of the suit or appeal, who purchased the property in contravention of Section 52 of the Transfer of Property Act cannot be impleaded as defendant. Further, a person who on his/her own volition purchased the property in contravention of the orders of the Court, cannot come before the Court and on grounds of equity seek impleadment. If such persons have any grievance against their vendors or desire to enforce the indemnity clause in the conveyance deed, they have to file separate suit against those vendors as and when the vendors got any share in the property. In case, the vendors are declared to the persons without any right to have a share in the property, the only remedy of the vendees during the pendency of the suit would be to sue the vendors for damages for conveying defective title....
(emphasis supplied)
7. In Kuna Ramulu's case (supra), this Court relied on Sarvinder Singh's case (supra), and held that when the property is purchased during the pendency of the litigation, which is hit by Section 52 of TP Act, such purchaser is neither necessary nor property to the suit and he cannot be permitted to come on record. The two decisions relied on by the trial Court do not take different view.
8. In Raj Kumar's case (supra), dealing with the matter which arose out of an application under Order XXII Rule 10 of CPC, the Supreme Court observed as under:
The doctrine of lis pendens expressed in the maxim "ut lite pendente nihil innovetur" (during a litigation nothing new should be introduced) has been statutorily incorporated in Section 52 of the Transfer of Property Act, 1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of the law as a representative-in-interest of the judgment-debtor and held bound by the decree passed against the judgment-debtor though neither has the defendant chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him nor has the transferee chosen to come on record by taking recourse to Order 22 Rule 10 CPC. In case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 CPC confers a discretion on the Court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a Us pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the Us pendens transferee remains bound by the decree.
(emphasis supplied)
9. Amit Kumar Shaw's case (supra), is also a case which essentially arose out of application under Order XXII Rule 10 of CPC. The Supreme Court reiterated that the alienee to be joined as party to the suit does not depend on the interest in the suit but the effect of adjudication on legally enforceable right of such person. The Supreme Court further held as follows:
The doctrine of Us 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 subject-matter 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 22 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 alienee 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 his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.
(emphasis supplied)
10. Thus even in a case falling under the scope of Order XXII Rule 10 of CPC, the test would be whether alienee pendente lite has enforceable legal right. Can it be such a person, who purchased the suit schedule property during pendency of the suit in gross violation of the principle in Section 52 of TP Act has an enforceable legal right? The answer should be in the negative, for the simple reason that a person, who violates the law and acquired the right, can never be treated as a holder of legally enforceable right. That is the reason why the Courts have held that though the purchaser lis pendens is bound by the decree passed against his vendor and he cannot as of right be impleaded in the suit. In this case, as noticed by the trial Court the third defendant (Respondent No. 7 herein) sold the land admeasuring Acs.7.00 in Survey No. 248 to M/s. Bapi Raju, Venkata Subbamma and Vijayalakshmi, who in turn sold the same to the petitioners under registered sale deed dated 16-2-2004. The petitioners, therefore, have to sail or sink with the third defendant and they cannot have right independent of the right of the third defendant, nor the petitioners can be said to have any legally enforceable right as against plaintiff. The impugned order of the trial Court, therefore, must be held correct and is not vitiated by any error warranting interference.
11. The civil revision petition is accordingly dismissed. There shall be no order as to costs.