Gobind Mahto v. Raj Kishore Mandal — 1987 DIGILAW 281 (PAT)

JUDGMENT S.B. Sinha, J. – This appeal is directed against the judgment and decree dated 9th July, 1975 passed by Shri S.K.P. Sinha. Additional Sub-ordinate Judge, Chaibassa in Title Suit No. 11/5 of 1971-75 whereby and whereunder the said learned court dismissed the plaintiffs appellants' suit. 2. In view of the points involved in this appeal it is not necessary to state the facts in details. 3. Suffice is to say that the plaintiffs filed the aforementioned suit for declaration of their title in respect of 26 bighas, 13 kathas and 19 dhurs of lands under revisional khata no. 3 of mouza Nischintpur P.S. Saraikela. The aforementioned lands have been described in details in Schedule-A of the plaint. The plaintiffs further prayed for a decree for perpetual injunction restraining defendant no. 1 from creating any disturbance and nuisance over the suit land and have prayed for a decree for a sum of Rs. 2.650.00 as detailed in Schedule-B of the plaint. It may be mentioned that the aforementioned decree for Rs. 2650.00 based on the basis of a price of paddy @ Rs. 20/- per mono totalling Rs. 2400/- and price of 1300 bindas of rice-hay valued at Rs. 250/-. 4. The plaintiffs allege in the plaint that the suit land originally belonged to one Chinibas Mandal who died in or about 1941 leaving behind a son Jamni Mandal who also died in or about 1951 leaving behind his widow one Domini Mandalin. 5. It is further stated that the aforementioned Domini Mandalin inherited the properties as a limited owner but in view of coming into force the Hindu Succession Act, 1956 she became absolute owner thereof. It is further alleged that the aforementioned family was governed by Dayabhag, School of Hindu Law. It is further alleged that defendant no. 1 (Raj Kishore Mandal) in the aforementioned suit had been cultivating the agricultural lands on behalf of Domini Mandalin. It is further alleged that Raj Kishore Mandal (defendant no. 1) had greedy eyes over the suit laud and in order to grab the same he had been laying false claim, thereupon. The aforementioned claim was based sometimes as a male agnate of Jamni Mandal or sometimes on the basis that Domini Mandalin abandoned the lands and had not paid the rents. 1) had greedy eyes over the suit laud and in order to grab the same he had been laying false claim, thereupon. The aforementioned claim was based sometimes as a male agnate of Jamni Mandal or sometimes on the basis that Domini Mandalin abandoned the lands and had not paid the rents. The plaintiffs however, asserted that Domini Mandalin never abandoned the village nor she ceased to cultivate the land in suit. Thereafter a proceeding under section 144 of the Code of Criminal Procedure was started by and between the aforementioned Raj Kishore, Mandal and Domini Mandalin culminating in a proceeding under section 145 of the Code of Criminal Procedure which was numbered as Cr. Misc. 21 of 1959. The said proceeding, in which one of the, plot in the suit i.e., plot no. 118 was involved, was decided in favour of defendant no. 1. It is further alleged that in the revisional settlement of records of right the suit lands were recorded in the name of Domini Mandalin and the tanaza preferred by defendant no. 1 was rejected by an order dated 18.8.59 passed by the A.S.O. However, it appears that in the meanwhile T.S. No. 97 of 1964 was filed by defendant no. 1 and during the pendency of the aforementioned suit Domini Mandalin sold the said land to the plaintiffs by a registered sale deed (Ext. 1) dated 24.2.66 for Rs. 12,000/- and put the plaintiffs in possession thereof. It is admitted that during the pendency of the said suit the aforementioned Domini Mandalin died on 7.5.69 and defendant no. 1 (Raj Kishore Mandal) filed an application for substitution alleging therein that the said Domini Mandalin left behind the plaintiffs as also Nilkant Mandal and Maheshwar Mandal as her heirs and legal representatives. By the said application defendant no. 1 prayed that the aforementioned Nilkant Mandal and Maheshwar Mandal be substituted in place of deceased Domini Mandalin. The said application was allowed by the court concerned and Maheshwar and Nilkant were directed to be substituted in place of Domini Mandalin. The said order sheet is marked as Ext. 13. 6. However, the aforementioned substituted heirs did not contest the suit, as a result whereof the aforementioned T.S. 97 of 1964 was decreed ex. parte in favour of defendant no. 1. The said order sheet is marked as Ext. 13. 6. However, the aforementioned substituted heirs did not contest the suit, as a result whereof the aforementioned T.S. 97 of 1964 was decreed ex. parte in favour of defendant no. 1. The plaintiffs thereafter having come to learn of the passing of the ex-parte decree filed the suit in question for the reliefs mentioned hereinbefore. 7. The plaintiffs stated that the decree passed in the aforementioned T.S. No. 97 of 1964 is not binding upon him in terms of section 52 of the Transfer of Property Act or otherwise. It is alleged that after the aforementioned sale deed dated 26.2.66 (Ext.1) was executed, the plaintiffs got their names mutated and a general notice was published but inspite thereof, the defendant no. 1 did not file any objection nor informed the Revenue Authorities about the pendency of the aforementioned T.S. No. 97 of 1964. It is further alleged that in the demarcation proceeding defendant no. 1 did not raise any objection although he had the knowledge of the mutation proceeding as also the demarcation proceedings. 8. The plaintiffs submitted that the doctrine of lis pendens cannot be said to have any application, whatsoever, in relation to he aforementioned decree as the same is a nullity/collusive. 9. The defendants appeared in the aforementioned suit and filed written statement and contended, inter alia, therein that the ex-parte decree passed in the earlier suit being T.S. No. 97 of 1964 is binding upon the present plaintiffs. It was further stated. that the aforementioned Nilkant Mandal and Maheshwar Mandal were rightly substituted in place of Domini Manualin as they were her legal representatives. It has further been stated in paragraph-5 of the written statement that as the said Nilkant Mandal and Maheshwar Mandal knew that the property belonged to defendant no. 1, they did not contest the suit. However, it is alleged by the defendant that the said Nilkant Mandal and Maheshwar Mandal were enemical to defendant no. 1 and in fact, there had been a litigation by and between the said parties. 10. The learned court below in view of the pleadings and the evidence adduced framed the following issues : 1. Have the plaintiffs any cause of action or light to sue the defendants. (Page 12 begins) ? 2. Is the suit maintainable in its present form ? 3. 10. The learned court below in view of the pleadings and the evidence adduced framed the following issues : 1. Have the plaintiffs any cause of action or light to sue the defendants. (Page 12 begins) ? 2. Is the suit maintainable in its present form ? 3. Is the suit barred by limitation and adverse possession ? 4. Is the suit barred by res-judicata and by the provision of section 52 of the T.P. Act ? 5. Is the Mandal Community of saraikella governed by Dayabhag School of Hindu law or by Mitakshara School of Hindu Law ? 6. Did Domini Mandalin possess the suit land or did she abandon the village, and cease the cultivate lands ? 7. Did the defendant pay any arrears of rent for the suit land ? 8, Did Domini Mandalin execute sale deed in favour of the plaintiffs, and if so, have the plaintiffs acquired any title of the suit land by such deed ? 9. Did the plaintiffs cultivate the suit lands at any time and did he ever grow paddy thereon ? 10. Is defendant no. 1 related to Jamini Mandalin in any manner. 11. Is the plaintiffs’ c1aim for recovery of money of Rs. 2, 650.00 as the price of paddy rice-hay from defendant no. 1 sustainable ? 12. Have the plaintiffs any right, title or possession of the suit land ? 13. To what reliefs, if any, are the plaintiffs entitled ? 11. The learned court below found issue no. 5 to be at not much relevance. He however decided issue no. 10 in favour of defendant no. 1. He further decided issue nos. 6, 7 and 8 by holding that defendant no. 1 was an agent of Domini Mandalin but the plaintiffs did not com, in exclusive possession of the suit land. It was further held by the learned court below that Domini Mandalin had title in respect of the properties in question and the deed of sale executed by her in favour of the plaintiffs was also valid. So far as issue nos. 4, 8 and 12 are concerned it has been decided against the plaintiffs and in favour of the defendants. The learned court below has held that the suit of the plaintiffs is barred under the doctrine of lis pendens. 12. Mr. So far as issue nos. 4, 8 and 12 are concerned it has been decided against the plaintiffs and in favour of the defendants. The learned court below has held that the suit of the plaintiffs is barred under the doctrine of lis pendens. 12. Mr. N.K. Prasad, learned counsel appearing on behalf of the appellants submitted that in view of the substitution petition (Ext. J) and the order of substitution as contained in Annexure-13 it must be held that the suit of the appellants is not barred under the doctrine of lis pendens. Developing this point Mr. Prasad submitted that from a perusal of the petition for substitution as contained in Ext. J it would appear that defendant no. 1 who was the plaintiff in T.S. No. 97 of 1964 admitted that he alongwith Nilkant Mandal and Maheshwar Mandal are agnates of Domini Mandalin. He, therefore, submitted that defendant no. 1 having thus been claiming the properties through Domini Mandalin and as such no lis remained to be adjudicated. In the alternative he submitted that after the transfer made by Domini Mandalin in favour of the plaintiff by a registered deed of sale dated 26.2.66 no interest survived in the suit properties so as to be inherited by defendant no. 1 as also the aforementioned Nilkant Mandal and Maheshwar Mandal and in that view of the matter, Mr. Prassad submits there was no basis for substituting Nillkant Mandal and Maheshwar Mandal as heirs of Domini Mandalin and in any event they colluded with defendant no. 1 who was the plaintiff in the earlier suit and an ex-parte decree passed in T.S. No. 97 of 1964 in such circumstances shall not come with in the mischief of section 52 of the Transfer of Property Act. 13. Mr. P.K. Sinha, learned counsel appearing on behalf of respondents submitted that there having been a lit by and between Domini Mandalin and defendant no. 1 in T.S. 97 of 1964 and in view of the fact that the said Domini Mandalin executed a deep of sale during the pendency of the suit, the ex-parte decree shall operate as a bar so far as the institution of the present suit by the plaintiffs is concerned under the doctrine of lis pendens as engrafted in section 52 of the Transfer of Property Act. He further submitted that in view of the definition of legal representative as contained in section 2(11) of the Code of Civil Procedure the transferee can not be substituted as a legal representative Mr. Sinha further submitted that in any event the plaintiff himself in his evidence categorically admitted his knowledge about the pendency of the suit. Mr. Sinha, therefore, submits that there was absolutely no reason as to why the plaintiff did not get himself impleaded as a party so as to protect his own interest. He further submitted that even assuming that the decree passed in the earlier suit being T.S. No. 997 of 1964 was wrong, the same would still operate as a bar against the present plaintiff. Mr. Sinha has cited the following cases; Nagubai Ammal and others v. B.Shama Rao and others (A.I.R. 1956 S.C. 593), Jayaram Mudaliar v. Ayyaswami and others (A.I.R. 1973 S.C. 569), M/s Supreme General Films Exchange Ltd. v. 1. His Highness Maharaja Sir Brijnath Singji Deo of Maihar and others 2 Her Highness Tej Survawanshji and another (A.I.R. 1957 Patna 729) and Manjeshwara Krishnaya v. Vasudeva Mallaya and others (A.I.R. 1918 Madra 578). 14. Mr. Sinha further for the purpose of proposition that an assignee is not required to be substituted, has cited the decisions in the case of Rameshwar Prasad Singh and another v. Basudeo Singh and others (A.I.R. 1936 Patna 126) and Chack Pyli v. Iype Varghese (A.I.R. 1956 TRAV-CO 147). 15. The only question of importance which arises for consideration in this appeal is as to whether the instant suit is hit by the doctrine of lis pendens or not. 16. As noticed hereinbefore the facts of the case are not in much dispute. It is admitted that the plaintiffs’ predecessor Domini Mandalin was on litigating terms with the defendant no. 1. Defendant no. 1 had been claiming the lands in suit in his own right. It is also admitted that Domini Mandalin executed the sale deed dated 26.2.66 during the pendency of the aforementioned suit. It is also admitted that Domini Mandalin died on 7.5.1969. It is further admitted that the plaintiff had the knowledge of the pendency of the aforementioned T.S. No. 97 of 1964 and had been keeping an eye over the progress of the suit. It is also admitted that Domini Mandalin died on 7.5.1969. It is further admitted that the plaintiff had the knowledge of the pendency of the aforementioned T.S. No. 97 of 1964 and had been keeping an eye over the progress of the suit. It is also clear from the evidence of the plaintiff himself that he had also instructed a lawyer to get himself impleaded as a party in the suit but ultimately the said petition was not filed. It is also admitted that the substitution application in the earlier T.S. No. 97 of 1964 was filed. Defendant no. 1 admitted that he as well as well aforementioned Nilkant Mandal and Maheshwar Mandal are agnates of Domini Mandalin. The court in which the aforementioned suit was pending by order (Ext. 13) directed that Nilkant Mandal and Maheshwar mandal is substituted in place of deceased Domini Mandalin. It further appears from order no. 16 of Ext. 13 that Nilkant Mandal also died and his heirs were also substituted. It also appears from order no. 16 of Ext. 13 that Maheshwar Mandal also died and his heirs were substituted. It is also on record that Nilkant Mandal and defendant no. 1 were on litigating terms and in fact a criminal case was filed as against defendant no. 1 by Nilkant Mandal. The said facts appear from Ext. 10. 17. Before referring to the decisions with regard to the applicability of lis pendens the law with regard to the said doctrine as engrafted in section 52 of the Transfer of Property Act, the said provision itself may be noticed. “Section 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 any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.” 18. The doctrine of lis pendens is based on the English common law maxim “ut lite pendente nihil innovetur”, i.e. during litigation nothing new should be introduced. The aforementioned doctrine is based on sound principles and thereby the parties are required to maintain the status quo as on the date of the filling of the suit. The said doctrine is based upon expediency and it is immaterial whether the alienee had or had not notice of the suit. The purchaser is affected by the aforementioned doctrine because law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. Where a litigation is pending between the plaintiff and the defendant as to the right to a particular estate the necessities of mankind require that the decision of the court shall be binding not only on the litigant parties, but on those who derive title under them by alienations made pending the suit whether such alienees had or had not notice of the pending proceedings. It may further be notice that doctrine of lis pendes is really an extension of the principles of res-judicata. 19. In order to constitute a lis pendens the following elements must be present : – 1. There must be a suit or proceeding pending in a Court of competent jurisdiction having authority in India, or established beyond the limits of India by the Central Government. 2. The suit or proceeding must not be collusive. 3. The litigation must be one in which right to immovable property is directly and specifically in question. 4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. 5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree of order. Out of the aforementioned ingredients ingredients no. 1, 3, and 5 are admittedly present in the instant case. 20. Mr. N.K. Prasad, learned counsel for the appellants however, submitted that in view of the fact that after the death of Domini Mandalin there was no lis which remained pending; meaning thereby the so called legal representative of the Domini Miindalin identified their interest with the interest of defendant no. 20. Mr. N.K. Prasad, learned counsel for the appellants however, submitted that in view of the fact that after the death of Domini Mandalin there was no lis which remained pending; meaning thereby the so called legal representative of the Domini Miindalin identified their interest with the interest of defendant no. 1 or abandoned the defendant itself, and as such the provision of section 52 of the Transfer of Property Act will have no application. He further submitted that in. any event, in the facts and circumstances of the case, it must be held that the litigation became collusive on the death of the said Domini Mandalin. He further submitted that for the purpose of holding as to whether the suit or proceeding is collusive or not it is not necessary that the suit should be a collusive one at the time when the same was instituted but it is possible that a suit may become collusive at a later stage also. 21. So far as the first question raised by Shri Prasad is concerned there does not appear to be any direct authority on the point. But however, the answer as to whether the said Nilkant Mandal and Maheshwar Mandal were rightly substituted in place of Domini Mandalin after her death or not. Legal representative has been defined in section 2 (11) of the Code of Civil Procedure which reads as follows : “Legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued; From a perusal of the aforementioned definition of ‘legal representative’ it is evident that the purchaser of the Domini Mandalin meaning thereby the plaintiff of the present case could not have become the legal representative of Domini Mandalin. In such an event it was necessary to substitute the heirs of Domini Mandalin. There can not be any doubt nor it bas been contended by the learned counsel appearing on behalf of the appellants that any other person except those Nilkant Mandal and Maheshwar Mandal or for that matter defendant no. 1 was the legal representative of Domini Mandalin. In such an event it was necessary to substitute the heirs of Domini Mandalin. There can not be any doubt nor it bas been contended by the learned counsel appearing on behalf of the appellants that any other person except those Nilkant Mandal and Maheshwar Mandal or for that matter defendant no. 1 was the legal representative of Domini Mandalin. Further it is not borne out from the record as to whether even at that point of time the plaintiff who filled the earlier suit i.e. defendant respondent hereof was aware of the execution of the deed of sale by Domini Mandalin in favour of the plaintiff-appellant. It is now well known that a legal representative includes an intermeddler also. Such intermeddler may also be a Class-II heir. Reference in this connection may be made to a recent Full Bench decision in the case of Sudama Devi and others v. Jogendra Chaudhary and others (1987 P.L.J.R. 793). Even assuming that defendant no.1 who was plaintiff in the earlier suit, was aware that Domini Mandalin transferred her interest in favour of the plaintiff-appellant, in such event the plaintiff could not have been impleaded as a party to the earlier suit as a legal representative of Domini Mandalin. 22. Order XXII Rule 3 of the Code of Civil Procedure would not have any application so far as the plaintiff-appellant is concerned for getting himself substituted in place of deceased Domini Mandalin, this view finds support from the Division Bench decisions in the case of Gobardhan Makharji v. Saligaram Marwari and others (A.I.R. 1936 Patna. 123) and Narayana Pillai v. Eravi Narayana Panicher and others (A.I.R. 1957 TRAV-CO 147). However, in terms of Order XXII Rule 10 of the Code of Civil Procedure the transferee shall become a representative in interest of the parry transferor. It may be pointed out that the plaintiff-appellant, as has been seen hereinbefore, in spite of his having knowledge about the pendency of T.S. 97 of 1964 did not get himself impleaded as a party thereto. The plaintiff• appellant can not, therefore, be permitted to take advantage of his own wrong. In such a situation it must be held that Nilkant Mandal and Maheshwar Mandal were rightly substituted in place of Domini Mandalin after her death. The plaintiff• appellant can not, therefore, be permitted to take advantage of his own wrong. In such a situation it must be held that Nilkant Mandal and Maheshwar Mandal were rightly substituted in place of Domini Mandalin after her death. Further it can not be assumed that only because the substituted Nilkant and Maheshwar did not contest the suit, it did not mean that there was no lis pending. A. lis which originally was initiated at the institution of the suit by defendant no. 1 as against Domini Mandalin continued. The effect of non-appearance of the substituted heirs after death of Domini Mandalin would not cause any change so for as the continuance of a suit is concerned. In my opinion, even in such a situation the ‘lis’ remains and by virtue of the decree passed in favour of defendant no. 1, all such persons who have been claimed any interest in the property through Domini Mandalin became bound thereby. In view of the fact that the plaintiff purchased the right, title and interest of Domini Mandalin in relation to the properties in suit he was bound by the decree which was passed against the substituted heirs of Domini Mandalin which, in law, would amount to a decree against Domini Mandalin herself. Further the question may be decided also from the angle of view as to what would have happened, if Domini Mandal in herself would not have contested the suit at a later stage. In my opinion, the effect in both the cases i.e. non-contest of the suit by Domini Mandalin or her legal representative would bear the same effect and result. 23. By reason of the provision of section 52 of the Transfer of Property Act, a transfer made during the pendency of the suit does not become illegal and in-operative. But section 52 of the said Act prevents any prejudice being caused to the other litigating party. As in the instant case the plaintiff has purchased the property during the pendency of the suit, by virtue of any action or in-action on hit part or on the part of his vendor or the substituted heirs of the vendors, the interest of defendant no. 1 who was the plaintiff in T.S. No. 97 of 1964 can not be affected. 1 who was the plaintiff in T.S. No. 97 of 1964 can not be affected. I am, after taking into consideration the facts and circumstances of the case, of the view that the doctrine of lis pendens as engrafted in section 52 of the T.P. Act shall apply in the present case also. 24. Further I do not find any substance also in' the submission made by Shri N.K. Prasad that the lis came to an end or the substituted heirs of Domini Mandalin namely, Nilkant Mandal and Maheshwar Mandal would be deemed to have abandoned the defence in the earlier suit. The defence of the earlier suit can not be said to be abandoned only by reason of a total silence on the part of a party to the suit or his legal representative. A lis may come to an end only by a reason of positive action on the part of the party to the suit and not by mere inaction. The consequence for not taking steps in a suit would fall in terms of the provisions of the Code of Civil Procedure but it can not be said that ‘lis’ itself comes to an end or for that matter the inaction on the part of the substituted heirs of Domini Mandalin rendered abandonment of the defence itself. 25. The reason for the aforementioned conclusion of mine is based on the fact that an ex-parte decree, unless the same is set aside, is as good as a contested decree and only because a defendant does not appear in a suit it does not mean that there was no lis by and between the plaintiff and the defendant or thereby the defendant abandons his defence, if any, inasmuch as even in such a case the plaintiff will have to, in order to obtain an ex-parte decree, prove his case to the satisfaction of the court. There is no doubt that in such an event the court shall be deprived of having assistance from the other litigating party but for that, only the absenting patty is to be blamed. 26. Coming to the second question as to whether the suit or the proceeding became collusive one at the later stage, in my opinion, the answer to this question also must be rendered in the negative. 26. Coming to the second question as to whether the suit or the proceeding became collusive one at the later stage, in my opinion, the answer to this question also must be rendered in the negative. There is no doubt that a suit or proceeding which was not collusive at an earlier stage may become collusive at a later stage. There is also no doubt or dispute that a decree obtained in such a collusive suit or a proceeding will render the decree in-operative so as to affect the interest of the transferee in terms of provision of section 52 of the Transfer of property Act. But in my view, it can not be said, having regard to the facts and circumstances of the case that the decree passed in T.S. No. 97 of 1964 became a collusive decree. 27. In my opinion, for the purpose of holding as to whether the decree is Collusive or not, it has to be held that there had been a collusion between the litigating parties which in turn would mean; entering in a secret arrangement between the two persons that one should institute a suit against the other in order to obtain the decision of a tribunal for some other purpose. In such a proceeding the claim put forward is fictitious, the contest over it is unreal and the decree passed therein is mere a collusive one. 28. In the instant case Mr. N. K. Prasad conceded that had Domini Mandalin been alive, the decree which had been passed in T.S. 97 of 1964 would have a binding affect on the plaintiff appellant in terms of section 52 of the Transfer of Property Act. As has been held hereinbefore the position in law does not change only because Domini Mandalin died and in her place, her heirs are substituted. There is nothing on the record to show that in fact, there was a secret arrangement between the plaintiff of T.S. No. 97 of 1964 and the heirs of the aforementioned Nilkant Mandal and Maheshwar Mamdal As a matter of fact it bas been seen that Maheshwar was on litigating terms with defendant no. 1. Further nothing bas been pointed out by the plaintiff-appellant to show as to how and in what manner the suit or a proceeding became collusive consequent upon the death of Domini Mandalin. 1. Further nothing bas been pointed out by the plaintiff-appellant to show as to how and in what manner the suit or a proceeding became collusive consequent upon the death of Domini Mandalin. After the death of Domini Mandalin, not only Nilkant Mandal and Maheshwar Mandal were substituted in place of her but later on their heirs have also been substituted in their places upon their death. Further only an inaction does not constitute a collusion nor an ex-parte decree passed lead to such an inference. Mr. Prasad submitted that the very fact that in the written statement the other defendants who were parties in the earlier T.S. No. 97 of 1964 have supported the case of defendant no. 1 in a pointer to the effect that there was a collusion between the defendants inter se. I am unable to accept this contention in view of the fact that what is necessary for the purpose of finding a collusion amongst the litigating parties is the existence of collusion when a suit or judicial proceeding was initiated or at a later stage thereof not after a lapse of time. Further in the instant case the plaintiff-appellant can not be heard to make a complain of any collusion. From the evidence on the record, as discussed hereinbefore, it is evident that the plaintiff has actually the knowledge of pendency of the earlier suit. He had also been keeping an eye over the proceeding of the suit and has been attending the court regularly. He had the opportunity to get himself substituted in place of Domini Mandalin as her representative in interest in terms of Order XXII Rule 10 of the Code of Civil Procedure. He evidently did not do so. The positive inaction on the part of the plaintiff in getting himself impleaded in the earlier suit or getting himself substituted in place of Domini Mandalin in terms of the provisions of Order XXII Rule 10 of the Code of Civil Procedure, in my opinion, amounts to negligence constituting an estoppel against him. He evidently did not do so. The positive inaction on the part of the plaintiff in getting himself impleaded in the earlier suit or getting himself substituted in place of Domini Mandalin in terms of the provisions of Order XXII Rule 10 of the Code of Civil Procedure, in my opinion, amounts to negligence constituting an estoppel against him. In view of the fact that he was aware or deemed to be aware of his legal liability to suffer the decree in terms of section 52 of the Transfer of Property Act, it was, in my opinion obligatory on his part to take all such positive steps so as to prevent him from suffering a decree resulting from an alleged collusion. The plaintiff, stood by the same, even assuming that there was collusion between defendant no.1 and the substituted heirs of Domini Msndalin and as such he is bound to suffer because of his own inaction and negligence. The plaintiff, therefore, was duty bound to take necessary steps to protect his own interest but his conduct in not taking proper steps in the suit amount to acquiescence as he remained silent even after knowing the proceedings of the suit. 29. In the result, I do not find any merit in this appeal which is hereby dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.