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2010 DIGILAW 1317 (PAT)

Smt. Bhagmani Devi v. Most. Kabiraj Devi

2010-05-20

MUNGESHWAR SAHOO

body2010
JUDGEMENT 1. This is an application under Order 1 Rule 10(2) and section 151 C.P.C. filed by 45 persons for being added as interveners-appellants in this appeal on the ground that during the pendency of this appeal all the purchasers interveners have purchased different area of disputed land from the appellant. Learned, Sr. counsel Sri Sidheshwari Prasad Sinha, appearing for the interveners submitted that after purchase they have acquired title in the property in suit and, therefore, they are vitally interested in this appeal. According to the learned Senior counsel if the interveners are not added as appellants then they will not be able to protect their interest. The learned Senior counsel further submitted that even if they are not necessary parties but being subsequent transferee are proper parties. Therefore, he prayed that they may be added as appellant. 2. The learned counsel for the appellant in support of his contentions relied upon two decisions (i) A.I.R. 2005 S.C. 2209 (Amit Kumar Shaw and another V/s. Farida Khatoon and Another) (ii) 2009 (3) P.L.J.R. 14 (Bal Mukund Singh V/s. Gautam Singh). 3. On the other hand, the learned counsel for the respondents submitted that the interveners are pendente lite transferee and therefore, transfer is hit under Section 52 of T.P. Act and, therefore, they are neither necessary party nor proper party and as a matter of right they cannot claim for being added as party in this appeal. In support of his contention the learned counsel relied upon 1996 (5) SCC 539 (Sarvinder Singh V/s. Dalip and others) and 2004 (1) SCC 191 [: 2004(1) PLJR (SC)66] (Bibi Zubaida Khatoon V/s. Nabi Hassan Saheb). 4. It is admitted fact that the interveners are transferee pendente lite. The registered sale deeds executed by the appellant have been annexed with the intervener application. From perusal of the record it appears that the suit for partition to the extent of 1/2 share of the plaintiff has been dismissed by the court below. Therefore, if it is found that the appellant has the title then only she can transfer and if it is found that she has no right to transfer then transferee will not derive title from the sale deeds. Therefore, if it is found that the appellant has the title then only she can transfer and if it is found that she has no right to transfer then transferee will not derive title from the sale deeds. As such the transferee appears to be vitally interested to protect their rights in this appeal because it may happen that after these sale deeds, the appellant may not prosecute or may be not interested to prosecute so deligently this appeal. 5. In the decision reported in 2009 (3) P.L.J.R. (supra) this Court after considering various decisions of the Honble Supreme Court has held that the pendente lite transferees have a right to be impleaded as party. In the other decision reported in A.I.R. 2005 S.C. 2209 (supra) the Honble Supreme Court has held that transferee pendente lite can be added as a proper party if his interest in the subject matter of suit is substantial and not just peripheral. In that case the Honble Supreme Court has also held that though the plaintiff is under no obligation to make a lis pendens transferee a party under Order 22 rule 10 an alienee pendente lite may be joined as party, the court had the discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. 6. So far as the decision cited by the respondents, i.e., 2004 (1) SCC 191. (supra) the Honble Supreme Court has also expressed the same view and held that transferee pendente lite without leave of the court cannot as a matter of right seek impleadment in the suit though normally a joinder based on transfer pendente lite is permitted to enable the transferee to protect his interest. 7. In the other decision, i.e., 1996 (5) SCC 539 (supra) in the facts and circumstances of that case the Honble Supreme Court found that the transferees pendente lite were neither necessary nor proper party to the suit in which the primary relief was found on the basis of the registered will executed by the appellants mother. The respondents could not challenge illegality or validity of the said will. 8. The respondents could not challenge illegality or validity of the said will. 8. In view of the discussions of the law propounded by the Honble Supreme Court it is clear that the transferee pendente lite cannot as a matter of right seek impleadment in the suit but it is the discretion of the court which must be judicially exercised. If it is found that the interest in the subject matter of the suit of the transferee is substantial then the alienee would ordinarily be joined as a party to enable him to protect his interest. Therefore, addition of party depends on the facts of each case and it is for the court to decide using judicial discretion in the matter considering the facts of each case. 9. In the present case as stated above the interveners are purchasers on payment of consideration. If they are added as party appellants there will be no change in the form of suit. They will be only protecting their rights and thereby no prejudice will be caused to the respondents and moreover, since they have stepped into the shoes of the appellants they are vitally interested and, therefore, in my opinion, it is a fit case where the interveners be allowed to. join as interveners appellants to protect their rights. 10. In view of the above facts and circumstances of this case and the law propounded by the Honble Supreme Court I allow the intervener application and the interveners are added as appellants no.2 to 46. 11. The Intervener Application being I.A. No. 3173/10 is allowed.