Writ Petition No. 564 of 2007

5th September, 2012

Petitioner Counsel: Mr. A. D. BHOBE

Cases Cited:
Devendra Kumar Sarewgee and others Vs. Purbanchal Estates (P) Ltd. and others, (2006) 9 SCC 199 [Para 7]

JUDGMENT

JUDGMENT :- Heard Shri A. D. Bhobe, learned Counsel appearing for the petitioner. None for the respondents though served.

2. The above petition challenges an order passed by the learned Civil Judge Senior Division, Mapusa, in Regular Civil Suit No. 58/1999 dated 08.06.2007 whereby an application filed by the petitioner to get himself impleaded in the suit as pendente lite transferee came to be rejected.

3. Shri Bhobe, learned counsel appearing for the petitioner has pointed out that the law is well settled that the pendente lite transferee can be impleaded in the suit to avoid multiplicity of the proceedings. The learned Counsel further pointed out that the petitioner himself has filed an application to be impleaded in the suit and any decree in the suit would affect the right of the petitioner in the suit property. The learned Counsel has taken me through the impugned order and pointed out that the learned Judge has erroneously dismissed the application on a spacious ground that there are no pleadings to that effect in the plaint. The learned counsel as such submits that the impugned order deserves to be quashed and set aside.

4. I have considered the submissions of the learned counsel appearing for the petitioner and I have also gone through the records as well as the impugned order. In order to consider as to whether the petitioner is to be impleaded as a party to the suit, it would be appropriate to note the scope and the meaning of doctrine of lis pendens under Section 52 of the Transfer of Property Act. Section 52 of the Transfer of Property Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation. The principle underlying Section 52 is that if during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognised or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the transferor is found to have no right or title in such property the transferee will not have any title to the property.

5. In the present case, the respondent nos. 1 and 2/original plaintiffs filed a suit for declaration and permanent injunction and demolition against the respondent nos. 3 to 9/original defendant nos. 1 to 7 on the ground that the respondent nos.1 and 2 along with respondent nos. 5 to 9 were the owners in possession of the property known as "Sironi" surveyed under no.132/2 of Village Calangute. It is further their case that on 27.03.1999, the respondent nos. 3 and 4 trespassed into the suit property bearing survey no.132/2 and commenced the construction of a compound wall around the suit property. It is further their case that on 28.03.1999, the respondent nos. 3 and 4 dumped rubble stones and mud in the suit property and taking note of the fact that there were holidays in the month of March, they have taken law in their hands and trespassed into the property surveyed under no. 132/2 and attempted to make a road through the suit property. It is further their case that the said respondents have no right to the suit property and not entitled to construct a compound wall or any road through the said property. On the basis of such pleadings, the respondent nos. 1 and 2 filed the suit inter-alia seeking a declaration that the respondent nos. 1, 2, 5, 6, 7, 8 and 9 are the owners in possession of the suit property and for permanent injunction restraining the respondent nos. 3 and 4 from constructing any compound wall or a road or interfere with the said portion of the property.

6. The respondent nos. 3 and 4 filed their written statement and it is their case that the said respondent nos. 1, 2, 5 to 9 have no right and interest in the said portion of the property surveyed under No. 132/2 and that the said plaintiffs/respondent nos. 1 and 2 were always in Bombay and that the respondent nos. 3 and 4 have been maintaining the eastern and western boundary of the property and that the said respondents and their predecessor in title used the property surveyed under no.132/2 as an access to proceed from the house which is situated on the southern side of the property through the traditional pathway since the time immemorial. It is further their case that the question of trespassing in the property as alleged by the respondent nos. 1 and 2 did not arise and that they have always been using the said portion of the property as a means of access. A counter claim came to be filed by the respondent nos. 3 and 4 praying inter-alia for a permanent injunction restraining the respondent nos. 1 and 2 from interfering with the said portion of the property surveyed under no.132/2 and/or doing anything within the suit property and from in any manner obstructing the said respondents from using or enjoying the suit access. The respondent nos. 5, 6, 7, 8 and 9 filed their written statement. The written statement to the counter claim also came to be filed on behalf of the respondent nos. 1 and 2. During the pendency of the said suit, on 27.05.2005 the respondent nos. 3 and 4 by a Deed of Sale transferred and conveyed their property surveyed under no.132/6 in favour of the petitioner. The said respondents also transferred all their rights, privilages, actions and claims accruing to them and appurtenant to the property purchased by the petitioner including the rights and claim of the respondent nos. 3 and 4 herein in respect of the access and right of way leading through the said property surveyed under no.132/6. Thereafter, an application came to be filed dated 03.06.2005 praying inter-alia to implead the petitioner to the said suit. By an order dated 08.06.2007, the learned Judge at Mapusa, dismissed both the applications filed by the petitioner. Being aggrieved by the said order, the petitioner has filed the above petition.

7. From the foregoing facts as stated by the petitioner in the petition, all rights claimed by the respondent nos. 3 and 4 over the suit property have been allegedly transferred in favour of the petitioner. In the background of such facts, it would be necessary to consider whether the petitioner is entitled to be impleaded in the suit filed by the respondent nos. 1 and 2. Taking note of the reliefs sought in the suit filed by respondent nos. 1 and 2, it cannot be disputed that the relief if granted therein would affect the right claimed by the petitioner over the suit property. In this context, the observations of the Apex Court in the judgment reported in (2006)9 SCC page 199 in the case of Devendra Kumar Sarewgee and others V/s Purbanchal Estates (P) Ltd., and others, at paras 11 and 12 would be relevant which read thus :

"11. This Court after detailed consideration of the case-law in Raj Kumar V/s Sardari Lal has held that the transferee pendente lite is treated in the eye of the law as a representative-in-interest of the judgment-debtor and bound by the decree passed against the judgment-debtor. In case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 CPC confers a discretion on the court hearing the suit to grant leave to the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing on a lis pendens transferee on record is not as of right but in the discretion of the court.

12. To the similar effect is the judgment of this court in Amit Kumar Shaw V/s Farida Khatoon. It has been observed as follows : (SCC p. 411)

"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, whether 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 the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case" .

8. Considering the said judgment of the Apex Court and taking note of the fact that the rights of the respondent nos. 3 and 4 in the adjoining property surveyed under no. 132/6 along with all rights and privileges appurtenant in the suit property have been transferred in favour of the petitioner, I find that in such circumstances to avoid multiplicity of the proceedings as any decree passed in the said suit would affect the alleged right claimed by the petitioner, the learned Judge was not justified to pass the impugned order refusing to implead the petitioner as a party defendant to the suit. In fact, the respondent nos. 1 and 2 had not even raised any objections to the application filed by the petitioner. In such circumstances, I find that the learned Judge has erroneously dismissed the application filed by the petitioner without considering the well settled principles as laid down by the Apex Court referred to herein above. Hence, the petitioner is entitled to be impleaded as a party defendant no.8 in the suit filed by the respondent nos. 1 and 2 and would be entitled to raise any defences as he may be permissible in law in such capacity.

9. In view of the above, the impugned order cannot be sustained and deserves to be quashed and set aside. Hence, I pass the following :

ORDER

(i) The impugned order dated 08.06.2007 is quashed and set aside.

(ii) The petitioner is allowed to be joined as defendant no.8 in Regular Civil Suit No. 58/1999/B.

(iii) Rule is made absolute in above terms.

(iv) The petition stands disposed of accordingly.

Ordered accordingly.