Allahabad High Court
Meera Rai vs Additional Sessions Judge & 7 Others on 3 November, 2017
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 17.08.2017 Delivered on 03.11.2017 Case :- MATTERS UNDER ARTICLE 227 No. - 1567 of 2017 Petitioner :- Meera Rai Respondent :- Additional Sessions Judge & 7 Others Counsel for Petitioner :- Arvind Srivastava Counsel for Respondent :- S.N. Pandey,Himanshu Pandey Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Arvind Srivastava, learned counsel for the petitioner and Sri Himanshu Pandey, learned counsel for the respondent nos.2 to 6.
The present petition arises out of Original Suit No.432 of 2013 (Hemant Agarwal Vs. Smt. Meera Rai) filed by one Hemant Agarwal against the defendant first set namely the petitioner herein. One Sri Basant Kumar Singh and Deoria Cooperative Housing Society Ltd. had been impleaded as defendants 2 and 3. The said suit was filed with the relief of declaration with regard to the land of approximately 1800 sq.ft. with the contention that the said land was a common road which was illegally sold by Basant Kumar Singh in favour of the petitioner/defendant first set. The relief of permanent injunction was sought against the defendant no.1 restraining him from raising any construction over the said land. The defendant no.1 contested the suit by filing a written statement. In the mean time, an application 30 Ka was moved by the plaintiff on 26.5.2014 stating therein that he sold his house existing in plot no.C9 to a third party and he did not require the suit land as two roads exists to access the house in question. Having left with no right or interest in the suit property because of sale executed by him, he sought to withdraw the suit.
Before an order could be passed on the said withdrawal application, an application under Order 22 Rule 10 C.P.C. was filed by the respondents 2 to 5 with the prayer to permit them to pursue the suit as the rights in the suit property had been devolved upon them. The said application was contested by the defendant no.1/petitioner by filing his objection on 23.7.2014. It was pleaded therein that no right or interest in the suit property (claimed to be rasta) was devolved upon the applications/respondents. The Trial Court by an order dated 8.9.2014 has allowed the application for substitution under Order 22 Rule 10 C.P.C. (paper No.27 Ga) and dismissed the withdrawal application.
Challenging the said order, the Misc. Appeal No.37 of 2014 was filed which was dismissed on 9.12.2016 and hence this petition.
To challenge the order of substitution, learned Counsel for the petitioner vehemently urged :
(i) The application moved by the respondents 2 to 5 claiming interest in the suit property was in fact an amendment application filed under Order 6 Rule 17 C.P.C. as they had prayed to delete the name of the plaintiff and amend the array of parties. The said application was wrongly treated by the Courts below as substitution application under Order 22 Rule 10 C.P.C.
(ii) The filing of substitution application under Order 22 Rule 10 C.P.C. would require leave of the Court and for granting such leave, the Court has to apply its mind as to whether any right or interest had devolved upon the person seeking substitution. There is no prayer seeking leave in the application 27 Ga/1 moved by the transferees of the original plaintiff namely the applicants and as such the order of substitution cannot be sustained.
(iii) The trial Court had mechanically allowed the said application without giving any reasoning for the grant of leave. In absence of reasons, the order impugned cannot be sustained.
(iv) The withdrawal application moved by the plaintiff was prior to filing of the substitution application by the respondents 2 to 5. The effect of moving of the withdrawal application would be that the suit automatically stood withdrawn and in absence of any suit being pending as on the date of filing of the application, the application of respondent no.2 to 5 could not be entertained. In other words. it is submitted that with the moving of the withdrawal application, withdrawal was automatic, no order was required to be passed on the said application. Reliance is placed upon the judgment of this Court in Ram Palat Chaturvedi (Deceased) By lrs Vs. Chandra Bali Shastri & another reported in 2008 1 ARC 143.
(v) Further, in any case, in the event of assignment of any right or interest in the suit property, the assignees may be substituted but the name of the assignor would not be deleted from the array of parties. With reference to the amended plaint (appended with supplementary affidavit) it is vehemently contended by learned Counsel for the petitioner that with the amendment of plaint i.e. deletion of the plaintiff, it would be a new suit. Any transfer by the plaintiff during the pendency of the suit though gives right to the assignor to pursue the suit under Order 22 Rule 10, with the leave of the Court, but the said suit cannot be pursued as a new suit. As no cause of action survives with the applicants/respondents they may be permitted to bring the fresh suit but they could not have been impleaded/substituted in the earlier suit more so when it already stood withdrawn.
(vi) The contention is that the plaintiff is dominus litus, it is his wish to continue his suit and the Court cannot compel him to pursue the suit that too when he moved a withdrawal application under Order 23 Rule 1 C.P.C.
(vii) The Act of deletion of name of the original plaintiff itself establishes that it was an amendment application seeking amendment of plaint by the persons who claimed to have got right and interest in the suit property. Reliance is placed upon the judgment of Apex Court in Hafiz Mushtaq & others Vs. Mohammad Idris & others reported in 1965 All LJ 828.
(viii) The suit filed by the predecessor of defendant no.2 (late Kedarnath Singh) filed against the Cooperative society namely Original Suit No.978 of 1993 is pending consideration. No relief of cancellation of sale deed dated 5.6.2012/6.6.2012 executed in favour of defendant no.1 had been sought by the original plaintiff namely Hemant Kumar Agarwal. In view of the registered sale deed being in existence, the applicants/subsequent purchasers can not seek a relief of declaration and injunction.
(ix) Lastly, it is submitted that the right to sue cannot be transferred under Section 6(e) of The Transfer of Property Act. In the application for substitution/impleadment based on the sale deed of the plaintiff the plea regarding transfer of alleged Rasta could not have been entertained as it would only be a transfer of right to sue for the said Rasta. Reliance is placed upon the judgment in the case of Ch. Sajjan Mal Vs. Bodh Raj Ramkishan Mal & others reported in AIR 1934 Pesawar 89. Moreover, no such right has been transferred in favour of the applicants by the Original Plaintiff. The alleged Rasta (subject matter of instant suit) is not even shown in the sketch map which gives description of property and is part of the sale deed of the applicants.
Learned Counsel for the respondents, on the other hand, submits that by the sale deed dated 19.10.2013, all rights and interest in the suit property were devolved upon the applicants. Under Order 22 Rule 10 of the Code of Civil Procedure, they have a right to pursue the suit on the doctrine of lis pendens. Any denial thereof would render them non-suited. Moreover, by the instant suit, the plaintiff sought declaration of easementry rights i.e. the right to way to approach his house by a common road which has been obstructed by the defendant no.1. Reliance is placed upon the judgment of Apex Court in Amit Kumar Shaw & another Vs. Farida Khaton & another reported in AIR 2005 SC 2209 and in Sharadamma Vs. Mohammed Pyrejan (Dead) through L.Rs. & another reported in 2015 (6) AWC 5721, to submit that 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.
It is further submitted that the original plaintiff transferred all rights and interest in the house owned by him to the applicants/respondents which would include easementry rights to access the said house i.e. right to way would stand transferred applying the principles of Section 12 read with Section 19 of Indian Easement Act, 1882 read with Section 8 of the Transfer of Property Act. It is contended that with the transfer of the immovable property vide registered sale deed, all subservient rights, i.e. right to way to access to the house or the property sold would stand transfer. Moreover, the sale deed dated 19.10.2013 contains the statement to the effect that whatever rights the assignor had in the transferred property stood transferred in favour of the assignees. This statement would be sufficient to conclude that the transferee would have a right to way to the property, subject matter of the said sale deed.
Section 8 of the Transfer of Property Act deals with the operation of transfer and categorically provides that a transfer of property passes to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof, unless a different intention is expressed or unnecessarily implied. Such incidents include, where the property is land, the easement annexed thereto.
With the aid of Section 8 of the Transfer of Property Act and Sections 12 and 19 of the Indian Easement Act, 1882, it is submitted that the house, subject matter of sale deed was a dominant grant. The right to way is a right for beneficial enjoyment of the said property which was subject matter of sale. The effect of transfer would be that there was a transfer of right to enjoy the house i.e; right to access/approach the same. The transfer of dominant tenement into the hands of subsequent owner passes the servient tenement to him as there cannot be any denial to the benefit of enjoyment of the property attached to the property sold. Reliance is placed upon the judgments in the cases of Dhananjan Bisen Vs. Devi Bai reported in 2002 (1) MPLJ 149, Sri Sri Iswar Gopal Jew Vs. Globe Theaters Ltd reported in 1947 AIR (Cal) 200, Sita Ram & another Vs. Jai Narain Kurmi & another reported in 1980 All L.J. 88 and Pratap Singh Vs. Ram Charan reported in 2012(2) ADJ 55.
Placing the plaint of Original Suit No.432 of 2013, it is contended that the original plaintiff was claiming right of easement over the suit property (1800 sq.ft. sold in favour of the defendant no.1 by Basant Kumar Singh defendant no.2). Specific contentions in paragraph 6 and 7 of the plaint are that the sale deed executed by late Kedarnath Singh (predecessor of defendant no.2) in favour of the defendant no.1 was an invalid sale deed in as much as the same pertains to the common passage (new road) carved out by the Housing society in the lay out plan. The effect of said sale was that the plaintiff was deprived of his right to way to his house. In a suit filed by Kedarnath Singh against the Housing society, an interim injunction was granted with regard to the passage shown in the original lay out plan. Taking benefit of the interim injunction order, the sale deed was executed in favour of the defendant no.1.
Submission is that the question as to whether the original plaintiff was having a right in the suit property is subject matter of evidence. After assignment of rights in the house to the applicants, the plaintiff moved a withdrawal application specifically stating therein that with such transfer he had left with no right or interest to the suit property (subject matter of the instant suit). It, therefore, cannot be said that the applicants i.e. the transferees would not have a right to pursue the suit to seek a decree of declaration of easementary rights over the suit property with the relief of permanent injunction.
In rejoinder, it is vehemently urged by the learned Counsel for the petitioner that there is no disclosure in the sale deed dated 19.12.2013 with regard to any right of way transferred to the applicants by the original plaintiff. Moreover, it was admitted by the original plaintiff that there are other roads to access the house sold by him though it has not been shown in the map appended with the sale deed. In absence of any express or implied transfer of easementary rights (Right to way), in the suit land (1800 sq.ft.), the present suit cannot be pursued by the assignees of the original plaintiff. The principle of transfer of survient tenement with the transfer of dominant tenement as asserted by the learned Counsel for the petitioner with the aid of Section 12 read with Section 19 of the Indian Easement Act would not be attracted in the facts of the present case.
Heard learned Counsel for the parties and perused the record.
The first argument of the learned Counsel for the petitioner that with the withdrawal of the present suit by application under Order 23 Rule 1 C.P.C. moved by the plaintiff, the assignees lost their right for substitution is found devoid of force in as much as no order was required to be passed on the withdrawal application. The decision of this Court in Ram Palat Chaudhary (supra) relied by the learned Counsel for the petitioner itself observes that though with the moving of withdrawal application on the part of the plaintiff, the withdrawal becomes effective but the order passed by the Court on the said application is to give effect to the consequences arising out of the withdrawal (reference has also been made to Sheikh Khalikuzzama (D) through L.R.s & others Vs. Sheikh Akhtaruzzaman (D) & others reported in 2004 (2) AWC 1636 and Smt. Raisa Sultana Begam & others vs. Abdul Qadir & others, reported in1966 AIR (All) 318).
In case, the said argument of the learned Counsel for the petitioner is accepted it would result in multiplicity of litigation in as much as the applicants would be required to bring a fresh suit for declaration on the same cause of action put forth by the original plaintiff. This cannot be the intention of the provisions as contained in Order 23 Rule 1 C.P.C. Thus it is held that in order to give effect to the consequences of withdrawal, a specific order is to be passed by the Court concerned on the withdrawal application. Even otherwise, on the principle of doctrine of lis pendens and the provisions as contained in Order 22 Rule 10 C.P.C. the transferees could not be denied substitution. On this principle also it cannot be said that the trial court had erred in dismissing the withdrawal application filed by the original plaintiff in view of pending substitution application of the subsequent transferees.
The said view taken by this Court is fortified from the decision of the Apex Court in Amit Kumar Shah (supra) wherein it has been held that the transferee though is not entitled, as of right, to be impleaded in the suit, however, the Court has a discretion to make him a party. The transferee pedente lite can be added as a proper party, if, his interest in the subject matter of the suit is substantial and not just peripheral. Under Order 22 Rule 10 C.P.C. an assignee pendente lite may be joined as party with the transfer of interest in the immovable property. He is a representative of the transferor from whom he has acquired that interest.
Even otherwise there may be a situation where the plaintiff or the defendant, as the case may be, may collude with the other parties after transfer of his interest in the property, subject matter of the pending suit. The object of Order 22 Rule 10 C.P.C. is to curb any such situation and further to avoid multiplicity of litigation.
It is, however, the discretion of the Court to allow substitution of an assignee of a party during the pendency of the suit. The words "by leave of the Court" used in Order 22 Rule 10 C.P.C. cannot be construed to mean that any specific order is required to be passed by the Court on a separate application seeking such leave. The order allowing substitution under Order 22 Rule 10 C.P.C. would itself mean that the Court thought it fit to grant leave to the assignees to pursue the suit. The argument of learned Counsel for the petitioner in this regard are found devoid of force.
Further the contention of the learned Counsel for the petitioner that in view of the prayer made in the substitution application moved by the applicants/respondents, it could only be treated as an application under Order 6 Rule 17 C.P.C. and not under Order 22 Rule 10 C.P.C. is wholly misconstrued in as much as for mere wrong mention of the provision or incomplete prayer in the application, it may not be rejected, in case, the Court comes to the conclusion that the prayer was required to be considered in order to do complete justice as the Court has power to even mould the relief.
Now only question remains for consideration is as to whether the transfer of immovable property, subject matter of sale deed dated 19.12.213 by the original plaintiff would include a transfer of easementary rights i.e; right to way to the said property.
The legal position in this regard has been explained in the judgments relied by learned Counsel for the respondents in Dhananjan Bisen (supra). It was held therein that once an easement is validly created, it is annexed to the line. The benefit of it passes with the dominant tenement (the immovable property sold) and the transferee acquired right to passage being servient tenement (passes with the transfer) as the transferee would acquire right of passage for the beneficial enjoyment of the immovable property purchased by him as per Section 12 of the Indian Easement Act, 1982. In Rajpur Colliery Co. (supra), the High Court of Patna had held that right of lessee in ingress and egress from the pathway attached to the lease land cannot be obstructed by any third party. The grant of lease to the immovable property for the purpose of its effective use or beneficial enjoyment would be grant by a person who was the owner of both the dominant (lease land) and the servient tenements (pathway). Same view has been retreated by the High Court of Calcutta in Sri Sri Iswar Gopal Jew (supra) and this Court in Sita Ram and another (supra). The transferee could not be held to be disentitled to fully enjoy the transferred land or immovable property.
In the light of the said legal position, it would be relevant to note that the transfer by the original plaintiff in the instant suit is of a house which exists in a colony developed by the Housing society namely Deoria Cooperative Housing Society. The original plaint pleadings are that the land (1800 sq.ft.), subject matter of sale deed executed in favour of the defendant no.1, was the land left for common road shown in the lay out plan got sanctioned by the Housing society. The said land was illegally sold in favour of the predecessor of defendant no.2 vide registered sale deed dated 2.4.2002, who in turn sold it to defendant no.2 vide another registered sale deed dated 5.6.2012/6.6.2012. The predecessor of defendant no.2 started raising construction over the disputed land, for demolition of which, an order dated 7.5.1993 was passed by the Presiding officer of the regulated area. The revision filed against the said order had already been dismissed.
The thirty (30) feet road shown in the lay out plan of the Housing society had been sought to be obstructed by the predecessor of defendant no.2 by raising illegal construction. With a view to get a legal sanction to the disputed land, late Kedar Nath Singh the predecessor of defendant no.2, filed an Original Suit No.978 of 1993 against the Housing society wherein he had succeeded in getting an interim injunction. Taking benefit of the interim injunction order, he sold the disputed land (common road) to defendant no.1. The construction being raised by the defendant no.1 was obstructing the access of the plaintiff to his house through the said road.
Having noted the aforementioned pleadings in the plaint, it is evident that the original plaintiff was claiming easementary rights over the disputed land, (approximately 1800 sq.ft.) which according to him was a common road inside the colony developed by the Housing society. The transfer of ownership right by the plaintiff in the house, subject matter of sale deed executed in favour of the applicants/respondents, would thus result in transfer of right to beneficial enjoyment of the said property i.e. the right to access it by a common road shown in the lay out plan of the Housing society.
In view of the above, the last argument of the learned Counsel for the petitioner that the alleged transfer of right to way would amount to transfer of right to sure and would be hit by Section 6(e) of the Transfer of Property Act, automatically falls being spineless.
However, the question as to whether the original plaintiff was entitled to a decree of declaration was subject matter of evidence. The assignees of the original plaintiff cannot be said to have lost their right to seek such a declaration for the only reason that the original plaintiff decided not to contest the suit on his own and sought to withdraw the same by moving an application under Order 23 Rule 1 C.P.C. The trial Court cannot be said to have erred in allowing the substitution application under Order 22 Rule 10 C.P.C. and rejecting the withdrawal application. There is no infirmity in the orders impugned. It is, however, clarified that the observations made by this Court herein above only pertains to the question as to whether the assignees of the original plaintiff were having right of substitution under Order 22 Rule 10 C.P.C. so as to pursue the suit filed by the transferor. So far as their right to seek declaration or access to the house purchased by them from the suit property i.e. merits of their case, the same is subject matter of evidence led by the parties. The trial Court would decide the dispute independently without being influenced by any of the observations made herein above.
In the result, this Court in exercise of its extraordinary supervisory jurisdiction under Article 227 of the Constitution of India is not inclined to interfere.
The present petition is, accordingly, dismissed.
Order Date :- 03.11.2017 Savita