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2015 DIGILAW 990 (RAJ)

RAM SAHAI v. BOARD OF REVENUE RAJASTHAN, AJMER

2015-05-05

MOHAMMAD RAFIQ

body2015
ORDER This order will decide applications No. 56498/2012 (in W.P. No. 1134/2008) and 56500/2012 (in W.P. No. 3721/2008) filed by applicant Utthan Township and Land Development Pvt. Ltd., Jaipur through its authorised signatory Shri Banwari Lal Arya, seeking its impleadment as party-respondent in both these writ petitions. 2. Writ Petition No. 1134/2008 has been filed by the petitioners, Ram Sahai, Ganesh Lal, Bansi Lal, Brij Mohan and Babu Lal, who purchased agricultural land bearing Khasra No. 151/1, new Khasra Nos. 349, 350, 351, 347/15252 and 348/1253, measuring 24 Bigha situated at village Bhatton Ki Gali, Tehsil Amer, District Jaipur by registered sale deed dated 09.03.1981, from Raghunath and Bhagwana. This land was then mutated in their name on 12.06.1981. The Parcha Settlement dated 19.09.1987 was prepared by Assistant Settlement Officer, Tehsil Amer, Post Sikar showing measurement of the aforesaid land as 4.62 hectares whereas according to petitioners, actual size of the land was much more than that. Aggrieved thereby, the petitioners preferred appeal for correction of measurement of land before the Land Settlement and Land Record Officer, Sikar. Since neighbours of the said land, Shri Shyo Narain son of Balu Ram Kumawat and Shri Shankar son of Shri Shyonath Jogi were having excess land, they were made party to the aforesaid appeal. Appeal was allowed vide judgment dated 16.04.1988 and the order of Assistant Settlement Officer, Tehsil Amer was quashed and set aside and the matter was remanded back for redetermination of the measurement of land in question. The Assistant Settlement Officer, Tehsil Amer, Post Jaipur, after hearing all concerned, corrected measurement of the land in question vide order dated 05.12.1988 and prepared fresh Parcha Settlement and mutation was accordingly attested in their favour. Respondent No. 4, Shankar filed appeal under Section 75 of the Rajasthan Land Revenue Act, 1956 against Mutation No. 190 attested by Tehsildar Amer in respect of Khasra No. 151/1 measuring 24 bighas in favour of Raghunath and Baghwana before the Additional Collector (IVth), Jaipur on the basis of their cultivatory possession belatedly after 40 years. The said appeal was dismissed by the Additional Collector (IVth), Jaipur vide order dated 22.07.2003. The said appeal was dismissed by the Additional Collector (IVth), Jaipur vide order dated 22.07.2003. The petitioners, who had in the meantime, purchased the land in question from Raghunath and Bhagwana, Respondents No. 5 and 6, were not made party to the aforesaid appeal, although Respondent No. 4 had knowledge of the fact that land was purchased by the petitioners way back in the year 1981 and their names were recorded in the revenue records and correct measurement has also been done. Respondent No. 4 then filed second appeal under Section 76 of Land Revenue Act before Divisional Commissioner, Jaipur. In this appeal also, the petitioners were not made parties. Divisional Commissioner, Jaipur accepted the appeal vide order dated 30.08.2005 and quashed the order of Additional Collector (IVth), Jaipur as also mutuation dated 07.09.1962. The petitioners challenged the order dated 30.08.2005 before the Board of Revenue, Rajasthan, Ajmer, Bench at Jaipur, by way of filing revision petition, which was allowed vide order dated 01.12.2007 and the matter was remanded back to Tehsildar, Amer for deciding question of mutation afresh. Since the petitioners were not party before Divisonal Commissioner, Jaipur, they also filed an application under Section 96 CPC along with their revision petition. Respondents No. 5 and 6 also filed revision petition before the Board of Revenue, Rajasthan, Ajmer, Bench at Jaipur which was also allowed vide aforesaid order. The petitioners have challenged the order dated 01.12.2007 passed by the Board of Revenue, Rajasthan, Ajmer, Bench at Jaipur and order dated 30.05.2008 passed by Divisional Commissioner, Jaipur by filing Writ Petition No. 1134/2008. 3. This Court vide order dated 08.02.2008, while issuing notices of writ petition, stayed operation and effect of the aforesaid orders. The petitioners, in the meantime filed application(No. 5823/2009) dated 10.02.2009, to bring on record subsequent developments along with certain documents, alleging that Tehsildar, Amer, after passing of ad-interim order dated 08.02.2008 by this Court, malafidely with some extraneous consideration by making interpolation in the order sheet dated 02.02.2008 in File No. 96/2005, attested mutation in favour of Respondent No. 4, Shankar by making fabricated order dated 13.02.2008 despite having knowledge of ad-interim stay order dated 08.02.2008 passed by this Court. He has done so with an ulterior motive to provide undue benefit to Respondent No. 4. The petitioners have also filed second Writ Petition No. 3721/2008 assailing aforesaid order dated 13.02.2008 passed by Tehsildar Amer. He has done so with an ulterior motive to provide undue benefit to Respondent No. 4. The petitioners have also filed second Writ Petition No. 3721/2008 assailing aforesaid order dated 13.02.2008 passed by Tehsildar Amer. This Court, vide interim order dated 17.04.2008 passed in that Writ Petition, restrained the respondents from further alienating the property, if not transferred. 4. Mr. Gajendra Singh Rathore, learned counsel for the applicant has submitted that the applicant-company has purchased land bearing Khasra No. 347/1252, 348/1253, 349, 350 and 351, total five khasras, measuring 6.07 hectare by registered sale deed dated 25.03.2008 after paying the entire sale consideration to Khatedar Respondent No. 4, Shankar Lal. They verified the aforesaid fact from the revenue records wherein he was recorded as Khatedar of the land mutated in his favour vide order dated 13.02.2008 passed by Tehsildar, Amer. The applicant is thus bonafide purchaser, who purchased the said land after paying due sale consideration. The applicant has also taken possession of the land. Since present dispute belongs to the land, which has been purchased by the applicant and the applicant is likely to be adversely affected by the judgment of the writ petitions, it is necessary and proper party. Therefore, the applicant ought to be impleaded as respondent in both the writ petitions. 5. Mr. Gajendra Singh Rathore, learned counsel argued that presence of the applicant in the present writ petitions is very necessary for effective and complete adjudication of the dispute. Learned counsel for the applicant, as regards interim order dated 08.02.2008 passed by this Court, has submitted that this order was never brought to the notice of the Tehsildar, Amer. Divisional Commissioner, Jaipur in the reply submitted after enquiry to the Lokayukta, Rajasthan, submitted that there is no substance in the allegation about change of date "15.02.2008" to "08.02.2008". The matter was fixed on 11.02.2008 and thereafter, on 13.02.2008. The petitioners have put their signatures in the order sheets of 08.02.2008, 11.02.2008 and 13.02.2008 and therefore, their opposition to impleadment of the applicant as respondent is wholly unjustified. Learned counsel for the applicant has relied upon decision in A.Nawab John & Ors. Vs. V.N. Subramaniyam, 2012 DNJ (SC) 720 and argued that the Supreme Court in that case held that in a suit for specific performance, if property has been purchased pendente lite, application for impleadment filed by the buyer should be considered liberally. Learned counsel for the applicant has relied upon decision in A.Nawab John & Ors. Vs. V.N. Subramaniyam, 2012 DNJ (SC) 720 and argued that the Supreme Court in that case held that in a suit for specific performance, if property has been purchased pendente lite, application for impleadment filed by the buyer should be considered liberally. Learned counsel has also relied upon the decision of Co-ordinate Bench of this Court in Nisar Mohd. Vs. Smt. Dhapu Bai &Ors. 2014 (3) DNJ(Raj.) 978 and submitted that application for impleadment filed by subsequent purchaser, who purchased the land by registered sale deed and received possession of the same pendente lite, should be considered liberally. Reliance is also placed on the judgment of the Supreme Court in Vishnu Dutt & Ors. Vs. State of Rajasthan & Ors., 2006 DNJ (SC) 90 wherein the Apex Court on the basis of its previous judgment in Mulraj Vs. Murti Raghunathji Maharaj, AIR 1967 SC 1386 held that only effect of the stay order was to prohibit the executing Court from proceeding further and that could only take effect when the executing Court has knowledge of the order. Since in the present case, Tehsildar Amer had no knowledge of the stay order passed by this Court, mutation was rightly attested. The applicant is therefore required to be impleaded as party respondent in both the writ petitions. 6. Mr. Ashok Mishra, learned counsel for the petitioners has opposed the applications for impleadment and submitted that the applicant is trying to over simplify the case of deliberate and willful disobedience of the orders passed by this Court by Tehsildar, Amer, who, despite the petitioners repeatedly bringing to his notice stay order passed by this Court, has passed order of mutation in a hasty manner by interpolation of the dates and fabrication of records. Tehsildar, Amer has done so only with a view to giving undue favour to the builder, which is the applicant-company. Learned counsel for the petitioners has argued that the petitioners immediately brought to the notice of the Tehsildar, Amer the order dated 08.02.2008 passed by this Court in Writ Petition No. 1134/2008. Tehsildar, Amer has done so only with a view to giving undue favour to the builder, which is the applicant-company. Learned counsel for the petitioners has argued that the petitioners immediately brought to the notice of the Tehsildar, Amer the order dated 08.02.2008 passed by this Court in Writ Petition No. 1134/2008. Learned Counsel for the petitioners has invited attention of the Court towards certified copy of aforesaid order dated 08.02.2008 and submitted that the petitioners obtained copy of that order on 12.02.2008 and Petitioner No. 4 went to Tehsildar, Amer on 13.02.2008 at about 10 O' Clock in the morning and informed Tehsildar, Amer about passing of stay order and also handed over a copy of the same to Tehsildar, Amer. Tehsildar after going through the copy of stay order dated 08.02.2008, told the Petitioner No. 4 that since he has not been made party to writ petition, stay order does not bind him. Even then, he kept the copy of order with him and obtained signatures of Petitioner No. 4 on the blank order sheet of the file. Petitioner No. 4, in bonafide belief and impression, put his signature on order sheet as told by the Tehsildar, Amer. 7. Shri Ashok Mishra, learned counsel for the petitioners has submitted that entire transaction of sale was made in a clandestine manner to circumvent the orders passed by this Court. Even though, it was alleged that sale deed was executed on 25.03.2008, but Respondent No. 4, who filed reply to writ petitions as early as 01.04.2010, did not utter a single word about incidence of sale. It was a conscious non-disclosure, as it would amount to breach of stay orders passed by this Court and the sale was made in violation of the stay orders passed by this Court. The alleged sale deed was executed on 25.03.2008 and the applications for impleadment have been filed on 13.12.2012, i.e., with delay of four years and nine months after the date of sale. The builder has taken advantage of the situation by purchasing the disputed land on lesser price. His action is actuated by oblique motive and therefore, he cannot be considered as bonafide purchaser, as the land was purchased with malafide intention by flouting stay order passed by this Court. The builder has taken advantage of the situation by purchasing the disputed land on lesser price. His action is actuated by oblique motive and therefore, he cannot be considered as bonafide purchaser, as the land was purchased with malafide intention by flouting stay order passed by this Court. Although, sale deed was shown to have been made after the order of mutation, but the order of mutation has been got passed in connivance with Tehsildar, Amer, who was in league with them. The petitioners made complaint against Tehsildar, Amer to Lokayukta, Rajasthan and District Collector, Jaipur alleging that Tehsildar, Amer, in fact demanded a sum of Rs. 10,00,000/- from the petitioners for passing order. Lokayukta called for complete report from Divisional Commissioner, Jaipur, who sent his report on 12.12.2008. When they failed to oblige him, he has passed the order by fabrication of record and making interpolation thereof. Divisional Commissioner, Jaipur in his report has concluded that the matter was fixed on 02.02.2008, on which date status report was ordered to be obtained from Patwari Halka concerned of Rampura Dabri and matter was ordered to be placed on 08.02.2008, in which by over writing, 1' was made 0' and 5' was made 8'. It appears that originally date so fixed was 15.02.2008 and 1' was made 0' and 5' was made 8'. This is how the matter was fixed on 08.02.2008, on which date matter was fixed for judgment on 11.02.2008. On 11.02.2008, presence of parties was shown and matter was again fixed for decision on 13.02.2008 when judgment was pronounced by Tehsildar, Amer. Divisional Commissioner, Jaipur has noted that perusal of the order dated 11.02.2008 does not indicate the reason for change of date for decision. Although, Divisional Commissioner has not accepted the allegation of demand of bribe by Tehsildar, Amer, but he has ordered disciplinary enquiry against the Tehsildar, Amer and charge sheet has been issued to Tehsildar, Amer on 02.02.2010. It is also argued that even though applications for impleadment were filed by the applicant on 13.12.2012, but copies thereof were supplied to counsel for the petitioners before this Court in January, 2015. Learned counsel for the petitioners in support of his arguments has relied upon the judgment of the Supreme Court in Vidur Impex & Traders Private Limited & Others Vs. Tosh Apartments Private Limited & Others, (2012) 8 SCC 384 . 8. Learned counsel for the petitioners in support of his arguments has relied upon the judgment of the Supreme Court in Vidur Impex & Traders Private Limited & Others Vs. Tosh Apartments Private Limited & Others, (2012) 8 SCC 384 . 8. The facts, which are apparent from the record and are not denied, are that this Court, while issuing notices of Writ Petition No. 1134/2008 on 08.02.2008, stayed operation and effect of the orders dated 30.08.2005 and 01.12.2007. Till that date, land was not mutated in favour of Respondent No. 4, pursuant to order of remand passed by the Board of Revenue, Rajasthan, Ajmer, Bench at Jaipur. Note sheet maintained in the relevant file, in which order of mutation has been passed on 13.02.2008, has been placed on record by the petitioners. Visual examination and careful perusal of the order dated 02.02.2008 passed by Tehsildar, Amer clearly indicates that originally 15.02.2008 was fixed as the date and this date by over writing has been changed to 08.02.2008, on which date report of Patwari Halka concerned was shown to have been taken on record and the matter was fixed for hearing and decision on 11.02.2008. However, on 11.02.2008, matter was again postponed to 13.02.2008. 9. This case has had a chequered history. Dispute in the present case pertains to 24 Bighas of land situated at Village Bhatton Ki Gali, Tehsil Amer, District Jaipur, in the vicinity of Jaipur City. This Court can take judicial cognizance of the fact that land prices in the vicinity of Jaipur have appreciated enormously. This fact explains the interest of the applicant-builder in purchasing the land despite ongoing litigation. It does not appeal to logic why the petitioners, having secured interim stay order in their favour, would not bring this fact to the notice of the Tehsildar, Amer. Had the order of mutation been simply passed, the Court would not agree with the contention of the petitioners, but here entire mutation proceedings conducted by Tehsildar, Amer are shrouded in doubt. The Divisional Commissioner, Jaipur has, at the askance of Lokayukta, Rajasthan, conducted enquiry. He has also found conduct of the Tehsildar, Amer dubious and directed disciplinary proceedings against him. In fact, charge sheet under Rule 16 of the Rajasthan Civil Services(Classification, Control and Appeal) Rules, 1958, for award of major penalty, has been served upon the Tehsildar, Amer. The Divisional Commissioner, Jaipur has, at the askance of Lokayukta, Rajasthan, conducted enquiry. He has also found conduct of the Tehsildar, Amer dubious and directed disciplinary proceedings against him. In fact, charge sheet under Rule 16 of the Rajasthan Civil Services(Classification, Control and Appeal) Rules, 1958, for award of major penalty, has been served upon the Tehsildar, Amer. Allegation about connivance of the Tehsildar, Amer with the applicant-builder also gains ground in view of fact that when the matter was fixed to be taken up on 15.02.2008, then how and in what manner the same was got fixed for 11.02.2008 for decision and why decision was not delivered on that date and it was fixed for 13.02.2008, is not clear. The petitioners obtained certified copy of order dated 08.02.2008 passed in Writ Petition No. 1134/2008 on 12.02.2008 and submitted it before the Tehsildar, Amer on 13.02.2008 at about 10 O'clock in the morning, but it has been alleged that Tehsildar, Amer refused to acknowledge the same contending that he was not party to the writ petition, therefore, the order would not be binding on him. Execution of sale deed by Respondent No. 4 in favour of the applicant-builder soon after the attestation of mutation in his favour by Tehsildar, Amer, despite restraint order passed by this Court, poorly reflects on the conduct of both, i.e., Respondent No. 4 as well as the applicant. 10. Decisions of the Supreme Court in Vishnu Dutt & Ors. (supra) and A. Nawab John & Ors.(supra) and decision of this Court in Nisar Mohd.(supra) relied by the applicant are of no help to it because they are distinguishable on the facts. Ratio of decision of the Supreme Court in Vidur Impex & Traders Private Limited & Others(supra), relied by the petitioners in the present case, squarely apply to the facts of this case. The Supreme Court in that case was dealing with a situation, wherein the suit was filed by the plaintiff for specific performance on the basis of agreement to sell dated 13.09.1988 executed by owner of the property. The suit was filed in April, 1993 and ad-interim injunction order was passed in that suit on 18.02.1993 restraining the defendants from transferring, alienating or parting with the possession of suit property in any manner or creating third party rights therein. The suit was filed in April, 1993 and ad-interim injunction order was passed in that suit on 18.02.1993 restraining the defendants from transferring, alienating or parting with the possession of suit property in any manner or creating third party rights therein. The plaintiff then filed interim application seeking restraint against Defendant No. 1 and 3, from changing the nature of the suit property by making structural changes, additions and alterations therein. On this application, order was passed directing them not to carry out any structural additions, alterations and permitted only the renovations like painting, polishing of the suit property. Despite the restraint order dated 18.02.1993, defendant No. 1-owner transferred the suit property by executing six sale deeds on 28.05.1997, in favour of Vidur Impex & Traders Private Limited and others (appellants before the Supreme Court). It was alleged that six sale deeds were intentionally executed showing consideration of Rs. 48 Lakhs, keeping each of them below the prescribed limit of Rs. 50 Lakhs, with a fraudulent intent to avoid the application of Chapter 20-C of the Income Tax Act. The plaintiff, on coming to know about aforesaid sale transactions, filed application under Order 39 Rule 1 and 2 CPC for restraining Defendants 1 and 2 from transferring possession of the suit property to the said transferees under the alleged six sale deeds. Restraint order to this effect was passed by the learned Single Judge of the High Court. Further orders were passed restraining these six transferees from acting upon the impugned sale deeds. Defendant No. 1-owner in his reply, took the stand that impugned sale deeds were forged and fabricated and were not executed by him. He filed a suit for declaration to this effect. However, that suit was withdrawn on 10.01.2001 by his advocate in his absence. Defendant-owner thereafter filed application stating that he had not authorised any counsel to withdraw the suit and whole proceedings were collusive and fraudulent and he had not entered into any compromise with the said six transferees. Despite a restraint order against the Defendant No. 4 to 9, i.e., Vidur Impex and Others, not to act upon the impugned sale deeds, they further entered into agreement dated 18.03.1997 for transfer of their purported rights and interest in the suit property, in favour of Bhagwati Developers Private Limited. Despite a restraint order against the Defendant No. 4 to 9, i.e., Vidur Impex and Others, not to act upon the impugned sale deeds, they further entered into agreement dated 18.03.1997 for transfer of their purported rights and interest in the suit property, in favour of Bhagwati Developers Private Limited. Bhagwati Developers Private Limited obtained an order from Calcutta High Court to take possession of the suit property, deliberately suppressing the fact about pending suit filed by Respondent No. 1 before Delhi High Court. Delhi High Court then also passed order for appointment of another receiver. After 11 years of the execution of agreements to sale in their favour by Respondent No. 2, the appellants filed application for impleadment as defendant in the suit before the Dehil High Court. 11. The Supreme Court in the aforesaid case of Vidur Impex & Traders Private Limited & Others(supra), while dismissing the appeals held that agreement to sell and sale deeds were executed by Respondent No. 2 in favour of the appellants in clandestine manner and in violation of injunction order granted by Delhi High Court. No valid interest was acquired by the appellants in the suit property. Further, suppression of material facts by Bhagwati Developers Private Limited and the appellants therein before the Calcutta High Court, which was persuaded to pass an order in their favour, take the appellants out of the category of bonafide purchaser. Their presence was not required to decide the controversy involved in the suit filed by the Respondent No. 1-owner. The appellants as well as Bhagwati Developers Private Limited were saddled with cost of Rs. 5,00,000/-each for their contemptuous conduct of suppressing the facts from Calcutta High Court thereby prolonging the litigation. Their presence was not required to decide the controversy involved in the suit filed by the Respondent No. 1-owner. The appellants as well as Bhagwati Developers Private Limited were saddled with cost of Rs. 5,00,000/-each for their contemptuous conduct of suppressing the facts from Calcutta High Court thereby prolonging the litigation. The Supreme Court rejected the explanation of the appellants for filing application with delay that they did not know about the suit filed by Respondent No. 1, observing that it is difficult, if not impossible, to accept their statement because the smallness of time gap between the agreements for sale and the sale deeds executed by Respondent No. 2 in favour of the appellants and the execution of agreement for sale by the appellants, in favour of Bhagwati Developers, would make any person of ordinary prudence to believe that Respondent No. 2, the appellants and Bhagwati Developers had entered into these transactions with the sole object of frustrating the agreement for sale dated 13.09.1988 executed in favour of Respondent No. 1 and the suit pending before the Delhi High Court. 12. Facts of the present case are to a great extent identical to those of Vidur Impex & Traders Private Limited & Others (supra). Assertion of the applicant is not believable that it was not aware about pendency of present writ petitions. The plea that the applicant and Respondent No. 4 were unaware about interim orders passed by this Court cannot be believed or in the words of their Lordships of the Supreme Court, as noted above, it is difficult to so believe, if not impossible. It cannot be implied that neither of them would be aware of the interim order passed by this Court. The manner, in which the order of mutation has been obtained, despite specific restraint order passed by this Court, staying operation of judgment passed by the Revenue Board and the conduct of the Tehsildar, Amer thereabout, makes them disentitled to any indulgence whatsoever. Sale deed in question does not confer any valid title or interest in their favour. Reference in this connection can be made to judgment of the Supreme Court in Surjit Singh V. Harbans Singh, (1995) 6 SCC 50 which was relied by the Apex Court in Vidur Impex & Traders(P) Ltd.(supra). Sale deed in question does not confer any valid title or interest in their favour. Reference in this connection can be made to judgment of the Supreme Court in Surjit Singh V. Harbans Singh, (1995) 6 SCC 50 which was relied by the Apex Court in Vidur Impex & Traders(P) Ltd.(supra). The Supreme Court in Surjit Singh(supra) considered the question whether a person, to whom the suit property is alienated after passing of the preliminary decree by the trial Court, which had restrained the parties from alienating or otherwise transferring the suit property, has the right to be impleaded as party. The trial Court accepted the application filed by the transferees and the order of the trial Court was confirmed by the lower appellate Court and the High Court. While allowing the appeal against the order of the High Court, the Supreme Court observed as under: “4...... In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the respondent assignee could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders.” 13. The Supreme Court in Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb, (2004) 1 SCC 191, was considering the correctness of the order of the High Court declining to interfere with the order passed by the Trial Court, whereby applications filed by the appellants for impleadment as party to the cross suits, of which one was filed for redemption of mortgage and the other was filed for specific performance of the agreement for sale, were dismissed. The Supreme Court relied upon its earlier judgment in Sarvinder Singh Vs. Dalip Singh, (1996) 5 SCC 539 and Dhurandhar Prasad Singh Vs. The Supreme Court relied upon its earlier judgment in Sarvinder Singh Vs. Dalip Singh, (1996) 5 SCC 539 and Dhurandhar Prasad Singh Vs. Jai Prakash University, (2001) 6 SCC 534 , and also dismissed the appeal observing that there is no absolute rule that the transferee pendente lite shall be allowed to join as party in all cases without leave of the Court and contest the pending suit. 14. In Sarvinder Singh(supra), the Supreme Court had the occasion to consider the question whether the respondent, who purchased the property during the pendency of a suit for declaration filed by the appellant, on the basis of the registered will executed by his mother, is entitled to be impleaded as party and observed thus: “5.... The respondents indisputably cannot challenge the legality or the validity of the Will executed and registered by Hira Devi on 26-5-1952. Though it may be open to the legal heirs of Rajender Kaur, who was a party to the earlier suit, to resist the claim on any legally available or tenable grounds, those grounds are not available to the respondents. Under those circumstances, the respondents cannot, by any stretch of imagination, be said to be either necessary or proper parties to the suit. A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the disputes. In either case the respondents cannot be said to be either necessary or proper parties to the suit in which the primary relief was found on the basis of the registered Will executed by the appellant's mother, Smt Hira Devi. Moreover, admittedly the respondents claimed right, title and interest pursuant to the registered sale deeds said to have been executed by the defendants-heirs of Rajender Kaur on 2-12-1991 and 12-12-1991, pending suit. 6. Section 52 of the Transfer of Property Act envisages that: '52. Transfer of property pending suit relating thereto.-During the pendency in any court having authority within the limits of India ... 6. Section 52 of the Transfer of Property Act envisages that: '52. Transfer of property pending suit relating thereto.-During the pendency in any court having authority within the limits of India ... 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 the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.' It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the court. Admittedly, the authority or order of the court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit.” (emphasis supplied) 15. The Supreme Court in Amit Kumar Shaw Vs. Farida Khatoon, (2005) 11 SCC 403 on this aspect of the matter examined the validity of order passed by the Calcutta High Court, which had approved the dismissal of the application field by the appellants for impleadment as parties to the suit filed by the original owner and the transferees, who claimed right, title and interest in the suit property by adverse possession. The suit was decreed by the Trial Court. On appeal, the same was remanded for fresh adjudication of the claim of the parties. The plaintiff challenged the order of remand by filing two second appeals. During the pendency of the appeals, one of the transferees assigned leasehold interest in respect of a portion of the suit property to the appellants. Another transferee sold other portion of the suit property to the appellants. The appellants claimed that they came to know about pendency of appeals only from the records of Municipal Corporation and eventually, thereafter, filed an application for impleadment, which was rejected by the High Court. Another transferee sold other portion of the suit property to the appellants. The appellants claimed that they came to know about pendency of appeals only from the records of Municipal Corporation and eventually, thereafter, filed an application for impleadment, which was rejected by the High Court. In those facts, the Supreme Court taking note of the provisions of Order 1 Rule 10(2) and Order 22 Rule 10 CPC as also Section 52 of the Transfer of Property Act, 1882, observed as under: “15. Section 52 of the Transfer of Property Act is an expression of the principle 'pending a litigation nothing new should be introduced'. It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. 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. (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 or order. 16. The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where 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. He may collude with the plaintiff. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where 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. He may collude with the plaintiff. Hence, 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. As already noticed, the court has 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.” (emphasis supplied) 16. The Supreme Court in Vinod Seth V. Devinder Bajaj, (2010) 8 SCC 1 , elaborating on the doctrine of lis pendens and the principles underlying Section 52 of TP Act, observed as under: “42. It is well settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit. 43. The principle underlying Section 52 of the TP Act is based on justice and equity. The operation of the bar under Section 52 is however subject to the power of the court to exempt the suit property from the operation of Section 52 subject to such conditions as it may impose. That means that the court in which the suit is pending, has the power, in appropriate cases, to permit a party to transfer the property which is the subject-matter of the suit without being subjected to the rights of any part to the suit, by imposing such terms as it deems fit. That means that the court in which the suit is pending, has the power, in appropriate cases, to permit a party to transfer the property which is the subject-matter of the suit without being subjected to the rights of any part to the suit, by imposing such terms as it deems fit. Having regard to the facts and circumstances, we are of the view that this is a fit case where the suit property should be exempted from the operation of Section 52 of the TP Act, subject to a condition relating to reasonable security, so that the defendants will have the liberty to deal with the property in any manner they may deem fit, in spite of the pendency of the suit.” 17. The Supreme Court in Vidur Impex & Traders Private Limited & Others(supra), after survey of the previous case laws and above referred to judgments, in para 41 of the judgment, laid down following principles, for deciding an application for impleadment of a party, who claims to have acquired interest in the suit property pendente lite: "41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are: 41.1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 41.3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. 41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment." 18. Last of the aforesaid principles, laid down by the Supreme Court, would squarely apply to the facts of the present case because the applicant herein is guilty of contumacious conduct and clandestine transaction of sale made in his favour by the owner-Respondent No. 4, in violation of the restraint order passed by this Court. Respondent No. 4, in his reply filed on 01.04.2010, did not disclose the fact about sale of property in dispute and the applications have been filed by the applicant with delay of more than four and half years, thus, the applications have been filed by the applicant with huge delay. 19. In view of above, Applications No. 56498/2012(in Writ Petition No. 1134/2008) and 56500/2012(in Writ Petition No. 3721/2008) filed by applicant Utthan Township and Land Development Pvt. Ltd., Jaipur through its authorised signatory Shri Banwari Lal Arya seeking its impleadment as party-respondent, in both the writ petitions, are dismissed. 20. Office is directed to place a copy of this order on record of Writ Petition No. 3721/2008.