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2007 DIGILAW 20 (ORI)

SHANTILATA MASANTA v. RAJANIMANI NAYAK

2007-01-09

A.S.NAIDU

body2007
( 1 ) THE order dated 12-3-2004 passed by the learned Civil Judge (JD), bhadrak in T. S. No. 6 of 1998-1/383 of 2001 rejecting a petition filed under Order 1, Rule 10 read with Section 151 CPC is assailed by the petitioners seeking to be impleaded as parties to the Title Suit. ( 2 ) AS the records reveal, the aforesaid title Suit had been filed by present opposite party no. 1 inter alia praying for partition of the suit land. Present opposite party no. 3 who is defendant No. 2 in the said suit filed this written statement taking the stand that he has sold the suit land to petitioner No. 1 and another Smt. Brijarani Das by means of a registered sale deed dated 11-9-1998 and has delivered possession thereof to them and they are possessing the same peacefully. It was alleged that after filing his written statement, opposite party No. 3 was exhibiting no interest to contest the suit. Therefore apprehending great prejudice and irreparable loss to her, petitioner No. 1 prayed before the Court below under Order 1, Rule 10 read with Section 151 CPC to implead her to protect her right to the suit property. The said petition was strongly resisted by opposite party No. 1 who is the plaintiff in the suit on the ground that petitioner No. 1 being a lis pendens purchaser no right in respect of the suit property had accrued to her and thus she was not a necessary party to the suit and that the petition was liable to be rejected. ( 3 ) THE Court below after discussing the facts and circumstances of the case and the law on the subject came to the conclusion that in view of the provisions of Section 52 of the Transfer of Property Act, the suit property having been transferred to the third party-intervener during pendency of the suit, that too without leave of the Court, the said third party-intervener was not a necessary party to the proceeding and thus rejected the prayer. Being aggrieved the intervener has approached this Court. The subsequent vendees of aforesaid Smt. Brajarani Das, who had also filed a similar petition before the Court for being impleaded as parties to the suit, have joined petitioner No. 1 in this writ Petition as petitioner Nos. 2 and 3. Being aggrieved the intervener has approached this Court. The subsequent vendees of aforesaid Smt. Brajarani Das, who had also filed a similar petition before the Court for being impleaded as parties to the suit, have joined petitioner No. 1 in this writ Petition as petitioner Nos. 2 and 3. ( 4 ) ACCORDING to learned counsel for the petitioners, admittedly defendant No. 2 had a share in the suit property. By a registered sale deed he has alienated the suit property in favour of petitioner No. 1 and the vendor of petitioner Nos. 2 and 3. He filed written statement in the suit admitting the said fact. but later-on exhibited his disinterestedness to contest the suit for which the petitioners apprehend that their right to the suit land may hamper, for which they filed petitions before the Court below to be impleaded as parties to the suit to protecj their right. Learned counsel for the plaintiff-opposite party No. 1 submits that the petitioners being lis pendens purchasers have acquired no right to the suit land. Thus any right to the suit land having not accrued in their favour, the question of protection of such right does not arise, and the Court below having rightly rejected the prayer this Court may not interfere with the impugned order. ( 5 ) I have heard learned counsel for the parties at length and perused the materials on record. Admittedly defendant No. 2 has alienated the suit land by a registered sale deed in favour of the petitioners. This fact has also been clearly stated by him in his written statement. The allegation of the petitioner is that after filing his written statement, defendant No. 2 is exhibiting his disinterestedness in contesting the suit. ( 6 ) LAW is well settled that an intervener who has purchased some land by registered sale deed steps into the shoes of his vendor having acquired right, title and interest to the said land. In the present case, whether the sale deed executed by defendant No. 3 is valid or not and whether right, title and interest to the land sold have passed on to the lis pendens purchasers and what would be the right of such interveners are questions of fact which have to be determined in some litigation or other. In the present case, whether the sale deed executed by defendant No. 3 is valid or not and whether right, title and interest to the land sold have passed on to the lis pendens purchasers and what would be the right of such interveners are questions of fact which have to be determined in some litigation or other. It is not an absolute rule that a transferee from a defendant pendente lite or an assignee cannot be impleaded as a party to a case with regard to the said land. To bring a lis pendens transferee or assignee, is the discretion of Court. In consonance with Section 52 of the Transfer of Property Act, a transferor pendente lite is treated in the eye of law as a repre-sentative-in-interest of the transferee who shall be bound by the decree that may be passed against the transferor. A transferee pendente lite has vital interest in the suit irrespective of the fact whether he has purchased the entire land or not. (See AIR 2005 SC 2209 . Amit Kumar Shaw v. Harida khatoon ). ( 7 ) IN a contingency where the transfer or after alienating the property, having no more any interest, does not properly defend the suit and colludes with the plaintiff, though the plaintiff is under no obligation to make the lis pendens transferee a party to the suit under Order 22, Rule 10 CPC, the alienee pendente lite may be joined as a party and on motion being made, the Court has a discretion to deal with such petition. Such discretion like any other must be judicially exercised and an alienee shall ordinarily be allowed to join the suit as a party to enable him to protect his interest. He is also entitled to be heard in the matter on the merit of the case. ( 8 ) THE power of Court to add a party to the proceeding may not depend solely on the question whether the said party has any interest in the suit property. The Court has also to consider whether right of the said person may be affected if he is not added as a party to the suit. Such right, however, will include necessary and unenforceable legal right. The Court has also to consider whether right of the said person may be affected if he is not added as a party to the suit. Such right, however, will include necessary and unenforceable legal right. An alienee pendente lite in consonance with Section 52 of the Transfer of Property act being bound by the final decree that may be passed in the suit, in all fitness can be brought on record so as to enable him to protest his right, more so when the transferor has lost interest and has decided not to contest the suit. ( 9 ) THUS the proposition of law that a lis pendens purchaser is not a necessary party to the suit is not an absolute one and the question depends upon facts and circumstances of each case and the Court in a given case has the discretion to add a pendente lite transferee as a party to the suit for a substantial justice and effectual adjudication of the suit, and also to avoid multiplicity of litigations. In the case at hand, as has been stated earlier, defendant No. 2 in his written statement has admitted to have alienated the suit land by a registered sale deed in favour of petitioner No. 1 and the vendor of petitioner nos. 2 and 3. Thereafter, it is alleged, he is not exhibiting any interest to contest the suit. Therefore this Court feels that it is a fit case, where the petitioners, though are transferees-pendente lite, should be added as parties to the suit as they apprehend that their interest in the subject matter of the suit may be affected. ( 10 ) IN view of the discussions made above, this Court feels that the impugned order passed by the Court below is not sustainable and therefore quashes the same. The petitioners are directed to be impleaded as defendants to the suit, but then they shall adopt the written statement already filed by defendant No. 2 and shall take part, in the suit from the present stage. The Writ Petition is thus allowed. Petition allowed. .