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2008 DIGILAW 1010 (ORI)

Sk. Siraj v. Nilamani Mohapatra

2008-11-12

SANJU PANDA

body2008
JUDGMENT S. PANDA, J. — Invoking inherent jurisdiction under Articles 227 of the Constitution of India, the petitioners have filed this writ petition challenging the order dated 18.9.2008 passed by the learned Civil Judge (Senior Division), Bhadrak in O.S.No.336 of 1997. 2. Opposite parties 1 and 2 as plaintiffs filed Original Suit No.336 of 1997 in the Court of learned Civil Judge (Senior Division), Bhadrak for partition. After the suit was filed, the order of status quo was passed on 30.4.1998 at the initial stage of the suit. In the said application, the specific prayer made by the plaintiffs was that defendants 7, 16 to 18 and 26 be injunct¬ed from cutting the trees standing on the suit land, digging the earth, constructing new house by preparing bricks and from put¬ting fence over the suit land. The said order of status quo is still continuing. While the matter stood thus, defendants 16, 17 and 18 purchased the aforesaid suit land by the virtue of the registered sale deed dated 3.9.1986. They are in exclusive possession of the suit property having mutated their names in the Settlement Re¬cords. The total area of the land is Ac.0.83 decimals. Defendants 17 and 18 by acting agents of defendants No.16 by virtue of a power of attorney executed by defendant No.16 in their favour and for themselves sold the suit land in favour of the petitioners by registered sale deed dated 2.6.2007. When the petitioners came to know about the pendency of the suit for partition, they filed an application under Order 1, Rule 10 of the Civil Procedure Code to implead them as parties in the suit. Plaintiffs filed their objection contending that the petitioners are not necessary par¬ties to the suit and therefore, they prayed for rejection of the application. Defendants 16 and 19 also filed their objection. The learned Civil Judge (Senior Division), Bhadrak rejected the said application taking into consideration the provision of Section 52 of the Transfer of Property Act (hereinafter referred to as “the T.P.Act”). 3. Defendants 16 and 19 also filed their objection. The learned Civil Judge (Senior Division), Bhadrak rejected the said application taking into consideration the provision of Section 52 of the Transfer of Property Act (hereinafter referred to as “the T.P.Act”). 3. The learned counsel appearing for the petitioners submitted that as there was a collusion between the vendor of the petitioners and the plaintiffs, the presence of the petitioners is necessary to protect their interest and since no prejudice would be caused to either of the parties, the petitioners should be impleaded as parties to the suit for avoiding multiplicity of proceedings and adjudication of the dispute effectively and conclusively. In support of his contention, he cited the decision of the Supreme Court in the case of Dhanalakshmi & others v. P. Mohan & others reported in AIR 2007 SC 1062 and the decision of this Court in the case of Parameswar Panda v. Adikanda Panda and others reported in 2004 (II) OLR 427 wherein it has been held that the sale of undivided share of suit property by co-sharers during pendency of the suit property would be entitled for alien¬or’s share inequity. Therefore, they would be necessary and proper parties to suit pending before the trial Court. This Court in a Full Bench decision reported in 1992 (I) OLR 17 (Sri Jagan¬nath Mahaprabhu, represented by Marfatdar Jagannath Ballav Endow¬ment Trustee Board through the Executive Officer v. Pravat Chan¬dra Chatterjee and others) has held that lis pendens purchaser should be impleaded as a proper party to the suit. 4. The learned counsel appearing for the opposite parties submitted that as the petitioners are lis pendens purchasers, they should not be impleaded as parties to the suit and the trial Court rightly rejected the application of the petitioners. The learned counsel appearing for the opposite parties further sub¬mitted that a transferee pendente lite without leave of the Court cannot, as of right, be impleaded as party to the suit and the present petitioners being pendente lite transferees, learned Civil Judge (Senior Division), Bhadrak rightly rejected their application as the transfer made in their favour is hit by the principle of lis pendens. In support of his contention, he also cited a deci¬sion of the Supreme Court in the case of Bibi Zubaida Khatoon v. Nabi Hassan Saheb and another reported in 2004 (I) SCC 191. 5. In support of his contention, he also cited a deci¬sion of the Supreme Court in the case of Bibi Zubaida Khatoon v. Nabi Hassan Saheb and another reported in 2004 (I) SCC 191. 5. From the facts stated above, it is clear that the vendor of the petitioner’s is member of the Hindu joint family. An outsider purchaser to a joint family has a right to sue for partition and get the property purchased by him carved out in the said suit and such right of the purchaser has been recognized in the Hindu Law. Admittedly, in the present suit, the parties are Hindus. A suit for partition of the joint family property was filed and some of the co-sharers sold the property in favour of the petitioners and by virtue of that sale, the petitioners claimed to have acquired title to the land purchased by them out of the share of their vendors. As there was no restraint order passed by the Court to alienate the property, the aliena¬tion cannot be held to be a violation of the Court’s order. 6. The effect of Section 52 of the Act is that a lis pendens transferee is bound by the decree whether on contest, ex parte or on compromise. Section 52 of the Act has been enacted with a view to safeguard the interest of the plaintiff so that his decree is not defeated at the instance of a third party in whose favour there has been a lis pendens transfer. The apex Court in the case of Nagubal Ammal and others v. B. Shama Rao and others reported in AIR 1956 SC 593 observed that “sale was not doubt pendente lite, but the effect of Section 52 is not to wipe it out altogether but to subordinate it to the rights based on the decree in the suit. As between the parties to the transac¬tion, it was perfectly valid, and operated to vest the title of the transferror in the transferee...”. 7. The aforesaid observation of the apex Court in Nagubal Ammal’s case (supra) makes it clear that a transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether 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. The object of Order 1, Rule 10(2) of the Civil Procedure Code is to facilitate an effectual adjudication of all the material ques¬tions arising between the parties inter se vis-a-vis the property in question. The Court is primarily concerned with the question whether the presence of the party proposed to be impleaded would advance complete and satisfactory adjudication of the subject-matter in controversy. If the Court feels that the presence of any party is required for effectual adjudication it has even the sou motu discretion to implead such party in the interest of justice. Therefore, it is clear that the discretion of a Court to direct impletion of a party is not always confined to filing of an application to that effect. 8. In the case at hand, as the petitioners purchased some property from one of the co-sharers, they can put-forth their claim on the undivided share of their vendor and in the suit for partition which is pending and the right of the parties can be adjudicated at the stage of final disposal of the suit. In a suit for partition also, parties can agitate their claims and preroga¬tives at the stage of final decree. While doing so, the Court is also to take into consideration the events/happenings occurring subsequent to passing of the preliminary decree as the Court has to adjudicate all the disputes completely and finally in respect of subject-matter of partition. Where the Court below comes to a finding of fact by asking itself a wrong question or approaches the questioning an improper manner, the said finding cannot be said to be one rendered with jurisdiction and, therefore, is amenable to correction under Article 227 of the Constitution. 9. In view of the aforesaid discussions, the impugned order passed by the learned Civil Judge (Senior Division), Bha¬drak is set aside and the learned Civil Judge (Senior Division), Bhadrak is directed to implead the petitioners as parties to the suit. However, it is made clear that this Court has not expressed any opinion with regard to the validity of the sale deed on the basis of which the petitioners have put forth their claims. It open to the learned Civil Judge to decide the same, if such an issue is raised to that effect. 10. Accordingly, the writ petition is allowed. No costs. Petition allowed.