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2016 DIGILAW 3325 (ALL)

Adarsh Kumar v. State of U. P.

2016-09-28

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Rahul Kumar Tyagi, for the petitioner. 2. The writ petition has been filed against the order of Board of Revenue, U.P. dated 01.06.2016 allowing impleadment application of Ramesh Chandra Jain and Smt. Abha Jain (respondents-4 and 5) in second appeal, filed by Buddhu (now represented by respondents-6 to 11), being transferee of the disputed land through registered sale deed dated 15.01.2011, from Buddhu. 3. Buddhu filed a suit (registered as Suit No. 13/20) for declaring him as 'bhumidhar with transferable right' of 1/2 share in plot 401/1 (area 1.404 hectare) and 406/1 (area 0.253 hectare) of village Gangol, tahsil and district Meerut, which was decreed by Additional City Magistrate, by order dated 17.05.2008. The petitioner filed an appeal (registered as Appeal No. 98 of 2007-08) from aforesaid decree, which was allowed by Additional Commissioner by order dated 16.03.2009 and decree dated 17.05.2008 was set aside. Buddhu filed a second appeal (registered as Second Appeal No. 31 of 2008-09. 4. During pendency of the second appeal, Buddhu executed a sale deed dated 15.01.2011, in respect of his 1/2 share in disputed land in favour of Ramesh Chandra Jain and Smt. Abha Jain (respondents-4 and 5), who moved an application for their impleadment in second appeal as appellants-2 and 3. The petitioner filed his Counter Affidavit in impleadment application and stated that Buddhu was not recorded over disputed land prior of decree of trial court dated 17.05.2008. This decree dated 17.05.2008 was set aside by appellate court on 16.03.2009. Buddhu had no right to execute the sale deed dated 15.01.2011. Respondents-4 and 5 could not be impleaded on the basis of this sale deed in the second appeal. Board of Revenue, U.P., after hearing the parties by order dated 01.06.2016 allowed impleadment application. Hence this petition has been filed. 5. The counsel for the petitioner submitted that name of Buddhu was not recorded over disputed land prior of decree of trial court dated 17.05.2008. This decree dated 17.05.2008 was set aside by appellate court on 16.03.2009. Buddhu had no right to execute the sale deed dated 15.01.2011, in respect of disputed land. Through sale deed dated 15.01.2011, only right to sue has been transferred although in view of specific prohibition under Section 6 (e) of Transfer of Property Act, 1882, "mere right to sue" is not transferable. Buddhu had no right to execute the sale deed dated 15.01.2011, in respect of disputed land. Through sale deed dated 15.01.2011, only right to sue has been transferred although in view of specific prohibition under Section 6 (e) of Transfer of Property Act, 1882, "mere right to sue" is not transferable. Sale deed dated 15.01.2011 is void and on its basis respondents-4 and 5 could not be impleaded in the second appeal. The order, directing for impleadment of respondents-4 and 5 as the appellants of Board of Revenue U.P. is illegal and liable to be set aside. 6. I have considered the arguments of the counsel for the petitioner and examined the record. Section 6 (e) of Transfer of Property Act, 1882, provides that a mere right to sue cannot be transferred. Supreme Court in Union of India v. Sri Sarada Mills Ltd., (1972) 2 SCC 877 , held that Section 6 (e) of the Transfer of Property Act states that a mere right to sue cannot be transferred. A bare right of action might be claims to damages for breach of contract or claims to damages for tort. An assignment of a mere right of litigation is bad. An assignment of property is valid even although that property may be incapable of being recovered without litigation. The reason behind, the rule is that a bare right of action for damages is not assignable because the law will not recognise any transaction which may savour of maintenance of champerty. It is only when there is some interest in the subject-matter that a transaction can be saved from the imputation of maintenance. That interest must exist apart from the assignment and to that extent must be independent of it. 7. In present case, mere right to sue for the claims to damages for breach of contract or claims to damages for tort has not been transferred. Rather it is an assignment of property although that property may be incapable of being recovered without litigation. As such the arguments raised by the counsel for the petitioner in this respect is not liable to be accepted. 8. Otherwise, in view of Section 146 read with Order 22 Rule 10 C.P.C., respondents-4 and 5, being legal representative of Buddhu were entitle to be impleaded as the appellants and prosecute the appeal. Relevant provisions are quoted below 146. As such the arguments raised by the counsel for the petitioner in this respect is not liable to be accepted. 8. Otherwise, in view of Section 146 read with Order 22 Rule 10 C.P.C., respondents-4 and 5, being legal representative of Buddhu were entitle to be impleaded as the appellants and prosecute the appeal. Relevant provisions are quoted below 146. Proceedings by or against representatives.-- Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. Order 22 Rule 10. Procedure in case of assignment before final order in suit.-- (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. 9. Section 52 of Transfer of Property Act, 1882 safeguard the right of the litigant from pendete lite transfer. The Court is empowered to have the control over the subject matter of the suit so that decree obtained by successful party may not be defeated by pendente lite transfer. However it does not impose a complete prohibition of the transfer of subject matter of the suit as the Court is given jurisdiction to grant leave to transfer. The issue in this respect came for consideration before a Bench of three Hon'ble Judges of Supreme Court in Jayaram Mudaliar v. Ayyaswami, (1972) 2 SCC 200 , in which it has been held that expositions of the doctrine of lis pendence indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the court to deal with it and thus make the proceedings infructuous. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. Supreme Court again in Hardev Singh v. Gurmail Singh, AIR 2007 SC 1058 , held that Section 52 of the Transfer of Property Act, 1882 merely prohibits a transfer. It does not state that the same would result in an illegality. Only effect of this provision is the purchaser during the pendency of a suit would be bound by the result of the litigation. The transaction, therefore, was not rendered void and/or of no effect. Same view has been taken in T.G. Ashok Kumar Vs. Govind Ammal, (2010) 14 SCC 317 and Thomson Press (India) Ltd. Vs. Nanak Builders & Investors (P) Ltd., AIR 2013 SC 2389 . 10. Section 146 read with Order 22 Rule 10 C.P.C. confers right upon the person claiming title through a party to the litigation to be impleaded with the leave of the Court and continue the litigation. While deciding an application under Section 146 and Order 22 Rule 10 C.P.C., the Court is not required to go into the controversy as to whether person sought to be impleaded as party in the suit is either necessary or proper party. If the person sought to be impleaed as party is legal representative of a party to the suit, it is sufficient for the Court to order impleadment/substitution of such person. A transferee pendente lite is a legal representative of the party. 11. A Bench of four Hon'ble Judges of Supreme Court in Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 SC 394 held that Section 146 was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be maintainable under Section 146. 12. Supreme Court in Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534 , held that the plain language of Order 22 Rule 10 C.P.C. does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of the plaintiff has devolved. Likewise, in a case where interest of the defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of a party to the suit has devolved during its pendency, then there may be preposterous results as such a party might not be knowing about the litigation and consequently not feasible for him to apply for leave and if a duty is cast upon him then in such an eventuality he would be bound by the decree even in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for such a leave so that his interest may be properly represented as the original party, if it ceased to have an interest in the subject-matter of dispute by virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by colluding with the other side. If the submission of Shri Mishra is accepted, a party upon whom interest has devolved, upon his failure to apply for leave, would be deprived from challenging correctness of the decree by filing a properly constituted suit on the ground that the original party having lost interest in the subject of dispute, did not properly prosecute or defend the litigation or, in doing so, colluded with the adversary. Similar view are taken by Supreme Court in Raj Kumar Vs. Sardari Lal, (2004) 2 SCC 601 . 13. Supreme Court in Amit Kumar Shaw v. Farida Khatoon, AIR 2005 SC 2209 , held that 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. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. This judgement has again been followed in Thomson Press (India) Ltd. Vs. Nanak Builders & Investors (P) Ltd., AIR 2013 SC 2389 . 14. In view of the aforesaid discussions, the order of Board of Revenue allowing impleadment application of respondents-4 and 5, does not suffer from any illegality. The writ petition has no merit and is dismissed.