(Oral)
1. Heard learned counsel for the petitioners and Sri Durga Prasad holding brief of Sri P.K. Yadav, who appears for respondent no.1, the contesting respondent.
2. In view of the order proposed to be passed by this Court, the necessity of issuing notice to respondents no.2 and 3 is dispensed with.
3. The petitioners, by means of this writ petition, have challenged the order dated 28.9.2019 passed by the Additional Commissioner (Judicial), Ayodhya Division, Ayodhya in Appeal no.908/2019 (Smt. Shahjahan vs. Panch Bahadur and others) and also pray for quashing of the entire proceedings of the said appeal. Certain other prayers have been made with regard to issuance of a direction to the respondents not to dispossess the petitioners and in the alternative, a direction to the respondent no.4-Additional Commissioner (Judicial), Ayodhya Division, Ayodhya to decide the appeal bearing Appeal no.908 of 2019 as expeditiously as possible within a time period as is fixed by this Court.
4. It has been submitted by the learned counsel for the petitioners that respondent nos.2 and 3 were parties to the Suit for Declaration under Section 229-B of the U.P. Z.A. and L.R. Act filed by the petitioners before the Sub Divisional Magistrate, Jaisinghpur, Sultanpur on 9.10.2001, numbered as Case no.140 of 2001. The property in question i.e. Gata nos.257 and 298B situated at Village Sahinwa, Pargana Aldemau, Tehsil Kadipur, District Sultanpur was sold out during the pendency of the aforesaid Suit for Declaration by the respondent no.2 to respondent no.1 through a registered Sale Deed dated 19.12.2017. The name of respondent no.1 was also mutated in the revenue records. The aforesaid suit was decreed on 30.3.2019 and the respondent nos.2 and 3 filed an appeal under Section 331 of the Act before the Commissioner, Ayodhya Division, Ayodhya on 27.5.2019 along with an application for stay of the order dated 30.3.2019. The stay application was rejected by the Additional Commissioner (Judicial), Ayodhya Division, Ayodhya on 14.8.2019. The respondent no.1, who was not a party to the suit and who had purchased the land in question from respondent nos.2 and 3 during the pendency of the suit, also filed an appeal registered as Appeal no.908 of 2019 before the same authority and while hearing the appeal of respondent no.1, respondent no.4 has passed an interim order, staying the operation of the order dated 30.3.2019 till the next date of listing and directing the matter to be listed on 9.1.2020.
5. It has been submitted by the learned counsel for the petitioners that respondent no.1 knew about the pendency of the suit as she belongs to the same village and she should have got herself impleaded either in the suit, which was still pending at the time she bought the property in question or in the appeal filed by respondent nos.2 and 3 and she should not have filed a separate appeal. Such separate appeal was not maintainable. The interim order granted in the appeal of respondent no.1 by the respondent no.4 is arbitrary and, therefore, the said order should be set aside.
6. This Court has heard the learned counsel for respondent no.1. It appears also from the pleadings on record that respondent no.1 was not impleaded in the Regular Suit, which was pending at the time when the Sale Deed was made out to her and her name was mutated in the revenue records. After the name of respondent no.1 was mutated in the revenue records, it was the duty of the plaintiffs in the Regular Suit to have impleaded such subsequent purchaser. It is no doubt true that a subsequent purchaser during the pendency of the lis, is bound by the Decree passed against the original defendants, but it is also true that such a person ought to be heard before any order, prejudicing his or her interest, is passed by the learned trial court.
7. Learned counsel for the petitioners, in support of his submissions, has placed reliance upon a judgment rendered by the Supreme Court in the case of Amit Kumar Shaw and another vs. Farida Khatoon and another, (2005) 11 SCC 403.
8. From a perusal of the said judgment rendered by the Supreme Court, it is apparent that the Court has considered Section 52 of the Transfer of Property Act and has held that during the pendency of 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 at the same time, the transferee pendente lite can be added as a proper party, if his/her interest in subject matter of suit is substantial and not just peripherial. 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 a party. 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. Since an alienee pendente lite is bound by the final decree that may be passed in the suit, such an alienee can be brought on record both under Order 22 Rule 10 as also under Order 1 Rule 10. The Court was considering a case where the application for impleadment in second appeal was rejected of the alienee pendente lite. The Supreme Court observed that since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed.
9. In this case, the respondent no.1 did not move any application and the plaintiffs also did not move any application under Order 1 Rule 10 of CPC. Nevertheless, the fact remains that the respondent no.1 was a alienee pendente lite and had a vital interest and not just a peripherial interest in the property in question. Therefore, this Court is of the considered opinion that her appeal is maintainable. In case the petitioners are aggrieved by the interim order passed in the appeal filed by respondent no.1, they may file a stay vacation application, bringing out the fact that respondent no.1 has colluded with respondent nos.2 and 3 to defeat the interest of the petitioners, who are the Decree holders and kept quiet even though she had knowledge of the suit remaining pending of the property, which she had bought from respondent nos.2 and 3.
10. The writ petition stands disposed of.
Order Date :- 28.11.2019 Sachin