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2016 DIGILAW 352 (MP)

Mor Singh v. Anar Singh

2016-04-29

S.K.PALO

body2016
JUDGMENT 1. The present miscellaneous appeal has been filed challenging the judgment and decree dated 13.2.2015 passed by First Additional District Judge, Sehore in Civil Appeal No.13-A/2010, whereby the learned first appellate Court allowed application under Order 1 rule 10 CPC filed by respondents No.5 and 6 (the purchasers) and remanded back the suit for fresh consideration on merit (by settling aside the judgment and decree dated 24.11.2008 passed by the 2nd Civil Judge, Class-I, Sehore in Civil Suit No. 4-A/2008, which was decreed in favour of the plaintiff/appellant by granting declaration of title and injunction over the suit land.). 2. Civil Suit No.4-A/2008 was instituted by Mor Singh against respondents No.1, 2 and 3, who were the brothers of Mor Singh stating that the suit land situated as Survey Nos.44/1, 44/2 admeasuring 2.94 acres at village Lasuriya was received by the plaintiff/appellant on partition affected during the life time of his father, however, the same was not mutated in the name of plaintiff/appellant Mor Singh, but continued to remain in the name of defendant/respondents No.1, 2 and 3 as the plaintiff was a minor at that time. After he became major, he continued his possession. His title and possession was acknowledged by the defendant/respondents No.1, 2 and 3. As his name has not been mutated in the revenue records, respondent No.3 threatened him to dispossess and sell the suit land, hence, he sought the declaration of title and injunction against defendant No.3/respondent No.1 (Anar Singh). 3. Defendant No.2/respondent No.3 (Bhagwan Singh) admitted the plaintiff's case in the civil suit. Defendant No. 3/respondent No.1 (Anar Singh) opposed the same. Judgment dated 24.11.2008 was pronounced by the First Civil Judge, Class- I, Sehore and decreed the suit in favour of the plaintiff/appellant. The defendant No.3/respondent No.1 (Anar Singh) preferred an appeal before the First A.D.J, Sehore in which defendant No.1/respondent No.2 (Madho Singh) and defendant No.2/respondent No.3 (Bhagwan Singh) remained ex parte. Only the plaintiff/respondent No.1 contested in the appeal. It would be appropriate to mention here that the plaintiff and the respondents are real brothers. 4. The defendant No.3/respondent No.1 (Anar Singh) preferred an appeal before the First A.D.J, Sehore in which defendant No.1/respondent No.2 (Madho Singh) and defendant No.2/respondent No.3 (Bhagwan Singh) remained ex parte. Only the plaintiff/respondent No.1 contested in the appeal. It would be appropriate to mention here that the plaintiff and the respondents are real brothers. 4. In the appeal before the First A.D.J, the respondents No. 5 and 6 filed an application under Order 1 rule 10 CPC to be impleaded as parties on the ground that Bhagwan Singh defendant No.2/respondent No.3 has sold 1.47 acres of land of Survey No.44/1 on 24.12.2007 for a consideration of Rs.3,37,000/- and handed over the possession to respondent No.6 by a registered sale deed whereas, the civil suit has been filed on 27.12.2007 by the plaintiff/appellant. 5. Similarly, respondent No.5 claimed that land admeasuring 1.47 acres of Survey No.44/2 has been sold to him by defendant No.3 (Bhagwan Singh) for a consideration of Rs.3,79,000/- by registered sale deed dated 5.4.2008 and handed over the possession. On the basis of which the learned first appellate Court setting aside the judgment and decree dated 24.11.2008 remanded the matter to the trial Court for affording opportunity to the proposed parties and to decide the same on merits. This order allowing the application under Order 1 rule 10 CPC and remanding the case to the trial Court has been challenged in this miscellaneous appeal. 6. As per the appellants, the first appellate Court has erred in law in not deciding the applications filed under section 151 CPC by the proposed respondents and allowing the application under Order 1 rule 10 CPC. It is also claimed that without deciding the appeal on merit, the first appellate Court erred in remanding the case ordering a de novo trial. It is contended that the sale deeds are null and void in the eyes of law for the proposed respondents are hit by section 52 of the Transfer of Property Act. 7. Heard the rival contentions. Counsel for the appellant placed reliance on Shivdayal v. Meenabai and others, reported as ILR (2014) M.P. 2174 in which a Co-ordinate Bench of this Court has held that :- by choosing to remand the case without reversing the findings of the trial Court, the first appellate Court has committed patent error of law- Impugned judgments set aside.� 8. Counsel for the appellant placed reliance on Shivdayal v. Meenabai and others, reported as ILR (2014) M.P. 2174 in which a Co-ordinate Bench of this Court has held that :- by choosing to remand the case without reversing the findings of the trial Court, the first appellate Court has committed patent error of law- Impugned judgments set aside.� 8. Counsel for the appellant further claimed that the order of remanding is erroneous and placed his reliance on Murari Lal v. Ram Kumar Ojha and another, reported as ILR (2014) M.P., 2162 in which a Co-ordinate Bench of this Court has held that:- first appellate Court ordering remand of the case for fresh decision, instead of deciding it on merit, is an erroneous exercise of jurisdiction- Decree is not sustainable in the eye of law-Appeal allowed. 9. Per contra, counsel for the respondents No. 5 and 6 has vehemently opposed the contentions raised by the learned counsel for the appellant and submitted that doctrine of lis pendence does not bind on all the parties to the suit but also purchasers pendente lite. He claimed that the purchaser is bound by the decree to be passed, therefore, justice requires that he should be heard and his rights should also be protected. He fortified his view by placing reliance on Kamta Prasad and another v. Smt. Vidyawati and others, reported as 1995 JLJ 178 in which a Co-ordinate Bench of this Court has held that:- (i) Transfer of Property Act, 1882- S.52 doctrine of lis pendence- does not only bind parties to the suit but also purchasers pendente lite- provision does not wipe out such sale altogether but subordinates it to the right based on the decree to be passed in the suit. (ii) Transfer of Property Act, 1882 S.52- purchaser pendente lite- is bound by the decree to be passed- justice requires to give him opportunity to protect his right- should be allowed to join the suit if comes with due diligence. 10. Considering the provision of Order 1 rule 10(2) of CPC and Order 22 rule 10 of CPC, this Court is of the opinion that it is within the discretion of Court to add any interested parties for completely settling all questions involved and, therefore, the Court can do so even suo motu or on the application by transferee pendente lite to be bound at appellate stage. In this regard, this view of the Court is supported by the decision rendered in Udit Narayan Singh v. Additional Member, Board of Revenue, Bihar, reported as AIR 1963 SC 786 and Munshi Ram v. Narsi Ram, reported as AIR 1983 SC 271 . Hon'ble the apex Court has held that it is within the discretion of the Court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the suit or an application filed at the instance of such other party. Hon'ble the apex Court is of the opinion that Order 1 rule 10 (2) of the CPC enables the Court to implead a person who appears to be necessary party so as to effectually and completely adjudicate upon and settle all the questions involved in a suit. 11. True, the plaintiff is dominus litis, but a Court has to see that it may not be that a collusive decree is obtained against the real owner or interested person without impleading him as a necessary party and it may not become final affecting vitally the rights of such person. Therefore, to avoid such a situation and also to avoid multiplicity of proceedings, the Court should permit such a person to be added as party. 12. It may not be lost sight of that, the plaintiff and the defendants are the real brothers in the present case. The element of collusion cannot be ruled out. In such circumstance, in the opinion of this Court, the order of the learned lower appellate Court does not seem to be erroneous. 13. In the case in hand, the purchasers (respondents No.5 and 6) will be vitally affected by the decree which may ultimately be passed against the defendants. Some of them have not filed written-statements and some have not opposed the plaintiff's case with regard to the property and one of the defendant transferred the property and executed the sale-deeds in favour of the purchasers without disclosing the fact about pendency of the suit. 14. Some of them have not filed written-statements and some have not opposed the plaintiff's case with regard to the property and one of the defendant transferred the property and executed the sale-deeds in favour of the purchasers without disclosing the fact about pendency of the suit. 14. In the opinion of this Court, a reading of the two provisions of Order 22, rule 10 and Order 1, rule 10, CPC, it is amply clear that under Order 22, rule 10, if the interest is assigned of the subject-matter of the suit, the assignee may apply to be impleaded as a party even at an appellate stage and if a person is vitally interested in the litigation and ultimate decree which may be passed in the said litigation vitally affecting his rights, he may apply to be added as a party under Order 1, rule 10(2), CPC. However, the Court, while considering the application under Order 1, rule 10(2) or under Order 22, rule 10, has to exercise the discretion judicially. 15. In the case of Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi, reported as AIR 1958 SC 394 in which Hon'ble the apex Court while considering the rights of pendente lite a purchaser to be joined as a party observed that such a person will be bound by the proceeding taken by the parties in whose favour the decree is passed in execution of the decree, the justice requires that such purchaser should be given an opportunity to protect his rights. In the result, this miscellaneous appeal is dismissed upholding the impugned order of the learned first appellate Court giving the plaintiff/present appellant liberty to demonstrate before the trial Court that the transfer to the respondents No.5 and 6 are null and void.