Research › Search › Judgment

Patna High Court · body

2009 DIGILAW 279 (PAT)

Sumitra Devi v. Sitasharan Bubna

2009-02-17

S.N.HUSSAIN

body2009
JUDGEMENT 1. Heard learned counsel for the petitioners (defendants), learned counsel for opposite party 1 st Set (plaintiff) and learned counsel opposite parties No. 31 and 32 (opposite party 3rd Set) (intervenors in the final decree proceeding). The aforesaid parties are the only main contesting parties in the instant matter. 2. This civil revision has been filed by defendants challenging order dated 3-6-2008 by which the learned Subordinate Judge, 1, Sitamarhi, allowed intervention petition of opposite parties 3rd Set and added them party to the final decree proceeding of Title Suit No. 56 of 1960. 3. It is not in dispute that plaintiff-opposite party 1st Set filed Title Suit No. 56 of 1960 for partition of their 1/3rd share which was decreed on contest in favour of the plainly tiff and preliminary decree of partition dated 25-2-1964 was prepared. Thereafter a petition for preparation of final decree was filed in the year 1987 in which Pleader Commissioner was appointed for Taktabandi etc. and he submitted his report dated 25-7-1992 to the learned Subordinate Judge I, Sitamarhi, before whom the proceeding for preparation of final decree was pending, but although no objection was raised to the said report nor the said preliminary decree had ever been challenged, the matter for preparation of final decree is still pending even after 16 years of the submission of the report. 4. From the averments of the parties, it also transpires that Eviction Suit No. 01 of 1989 was filed by the petitioners for eviction of opposite parties 3rd Set on the grounds of default in payment of rent as well as personal necessity, but the said suit was dismissed on contest by the trial Court on 28-9-1996 against which the petitioners filed Eviction Appeal No. 32 of 1996 which was allowed by the learned Court of appeal below on 31-3-2007 and the claim in the suit of the petitioners was decreed. Against the order of the lower appellate Court, opposite parties 3rd Set filed Second Appeal No. 93 of 2007 which was dismissed on merits by this Court on 3-10-2007. In the said circumstances, the petitioners have filed Execution Case No. 03 of 2007 for execution of the decree of eviction which is pending before the learned Subordinate Judge, I, Sitamarhi. Against the order of the lower appellate Court, opposite parties 3rd Set filed Second Appeal No. 93 of 2007 which was dismissed on merits by this Court on 3-10-2007. In the said circumstances, the petitioners have filed Execution Case No. 03 of 2007 for execution of the decree of eviction which is pending before the learned Subordinate Judge, I, Sitamarhi. The said order of this Court in the second appeal was challenged by opposite party 3rd Set before the Hon ble Apex Court In S.L.A. No. 1859 of 2008, whereafter vide order dated 4-2-2008, the Hon ble Apex Court directed maintenance of status quo as on that date. In the said circumstances, further proceeding of Execution case remained stayed. 5. Opposite parties 3rd Set were neither parties to the partition suit, nor were parties to the final decree proceeding and they filed a petition dated 10-8-2007 in the final decree proceeding of Title Suit No. 56 of 1960 for being added as parties to the said proceeding claiming that earlier they were tenants of two shop premises which were subject-matter of eviction suit, but subsequently they had purchased the same by two registered deeds dated 1-3-1988 and 2-3-1988 from the plaintiff (opposite 1st Set) and hence, they may be added as parties to the final decree proceedings. The said petition of opposite parties 3rd Set has been allowed by the learned Subordinate Judge, I, Sitamarhi, by the impugned order dated 3-6-2008 on the ground that since opposite parties 3rd Set had purchased a portion of the premises involved in the partition suit, they have acquired interest in the proceeding and they will be adversely affected if their purchased property is allotted to the share of any co-sharers other than the plaintiff. 6. A very strange observation has been made by the learned Court below in the third last paragraph of the impugned order holding that until a separate Takta of the shop rooms said to have been purchased by the opposite parties 3rd set is not prepared in the name of plaintiff, opposite parties 3rd Set would remain tenants of the plaintiff. A very strange observation has been made by the learned Court below in the third last paragraph of the impugned order holding that until a separate Takta of the shop rooms said to have been purchased by the opposite parties 3rd set is not prepared in the name of plaintiff, opposite parties 3rd Set would remain tenants of the plaintiff. This order is not only against the specific provisions of law, but is also against the order of the Hon ble Apex Court by which status quo was directed to be maintained only till the disposal of the S.L.A. pending before the Hon ble Apex Court, but the learned Court below has granted a free hand to the tenants opposite parties 3rd Set to remain in possession of the said property until it is allotted to their vendors, although it is not at all legally binding on any Court to prepare takhta as per the wishes of the purchaser pendente-lite. 7. So far the sale deeds of opposite party 1 st Set in favour of opposite parties 3rd Set dated 1-3-1988 and 2-3-1988 (Exts. E & E/ 1) are concerned, they are with respect to specific portions of land, namely the shop rooms involved in the eviction suit, but opposite party 1st Set himself being the plaintiff of partition suit claiming that all the properties, including the suit property, were joint, was not legally entitled to sell specific portions of the suit land, especially when preliminary decree of partition has been prepared and has attained finality and final decree proceeding with respect thereto was pending. Section 52 of the Transfer of Property Act is clear in that respect. Furthermore, the Hon ble Apex Court in case of Sarvinder Singh v. Dalip Singh, reported in (1996) 5 Supreme Court Cases 539, has specifically held that parties to the partition suit are prohibited by operation of Section 52 of the Act to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the other party except with the order or authority of the Court. In this case, admittedly the authority or order of the Court had not been obtained for alienation of the said properties. Therefore, the said alienation would obviously be hit of the doctrine of lis pendens by operation of Section 52 of the Act. In this case, admittedly the authority or order of the Court had not been obtained for alienation of the said properties. Therefore, the said alienation would obviously be hit of the doctrine of lis pendens by operation of Section 52 of the Act. This aspect of the matter has been completely overlooked by the learned counsel below. 8. The principle of law is well settled that if a person has purchased a property knowing about the litigation, his fate would lie with the fate of his vendor and as such opposite parties 3rd Set will get an appropriate portion from the lands/premises given to his share in the final decree of partition. In the instant case the opposite parties 3rd Set had full knowledge and information of the partition suit, but in spite of that he purchased the suit property during the pendency of the final decree proceeding, hence they had taken the risk and should be bound by the provisions of law as mentioned above. 9. So far the order of the Hon ble Apex Court is concerned, no doubt, opposite parties 3rd set shall not be evicted or ousted from the suit premises until the S.L.A. pending before it is dismissed or any such order is passed by the Hon ble Apex Court, but so far the final decree proceeding is concerned, there is no requirement for adding opposite parties 3rd set in the final decree proceeding as they are neither necessary parties, nor proper parties for deciding the final decree proceeding. In the said circumstances, the learned lower Court exceeded his jurisdiction while passing the impugned order, although he had no jurisdiction at all to implead the opposite party 3rd Set in the final decree proceeding. Furthermore, the order of the learned Court below is based on wrong presumption of law due to which it has misdirected itself. Accordingly, the impugned order is set aside and the civil revision is allowed. 10. It is quite strange that final decree proceeding is pending since 1987 and in the meantime, the Pleader Commissioner has submitted his report on 25-7-1992 against which no objection has been filed, but still the learned Subordinate Judge, I, Sitamarhi, has not taken a final decision in that regard, although more than 16 years have passed. 10. It is quite strange that final decree proceeding is pending since 1987 and in the meantime, the Pleader Commissioner has submitted his report on 25-7-1992 against which no objection has been filed, but still the learned Subordinate Judge, I, Sitamarhi, has not taken a final decision in that regard, although more than 16 years have passed. In the said circumstances, the learned Court below is directed to comply the order of this Court passed in another civil revision bearing C.R. No. 2216 of 2008" dated 15-1-2009 by which another Bench of this Court had directed the learned Court below to take up hearing of the final decree proceeding on day to day basis and ensure that the same is finally and conclusively disposed of within a period of three months from the date of receipt/production of a copy of this order.