1. Heard Mr. Prashant Singh Gaur and Mr. Ankit Srivastava, learned counsel for appellants as well as Mr. Hari Om Singh, learned counsel for respondents no. 1 and 2, Mr. Dwijendra Mishra, learned counsel for respondent no. 3 and Mr. Mohd. Arif Khan, learned senior Advocate assisted by Mr. Mohd. Aslam Khan, learned counsel for respondents no. 4, 5 and 6.
2. This second appeal has been filed by the appellants against the judgment and decree dated 02.03.2013 passed by the Court of learned Additional District and Sessions Judge, Ex-Cadre-1, Raebareli in Regular Civil Appeal No. 28 of 2010 (Dinendra Singh and another vs. Raebareli Development Authority and others) which has arisen out of the judgment and order dated 13.1.2010 passed by the Civil Judge (Senior Division), Court No. 14, Raebareli, in Regular Suit No. 194 of 1993 (Dinendra Singh and another Vs. Raebareli Development Authority and others).
3. Two applications for leave to appeal have been preferred by the appellants. One (C.M.A. No. 70720 of 2016) on behalf of all the appellants by Mr. Prashant Singh Gaur, learned counsel for appellants whereas another (C.M.A. No. 70794 of 2016) on behalf of appellants no. 2 and 5 by Mr. Ankit Srivastava, learned counsel for appellants.
4. The appellants-applicants were not party before the Trial Court as well as the First Appellate Court and they have filed the instant second appeal claiming themselves to be successor-in-title of respondent no. 3, Raebareli Development Authority as they have purchased the property in question through a valid conveyance-deed. They claim themselves to be real "aggrieved party".
5. In order to put the record state, it is to be noted that the instant appeal has been filed with an application under Section 5 Indian Limitation Act for condonation of delay. On 26.7.2016, when the appeal was listed before the Court, Mr. Hari Om Singh, learned counsel for respondents had raised objection regarding maintainability of the appeal on the ground that the instant second appeal is not maintainable without leave of the Court. The Court had granted time to the appellants to move appropriate application seeking permission to appeal. The order dated 26.7.2016, for convenience, is reproduced below:
"All the respondents are represented.
Mr. Hari Om Singh, learned counsel for respondents has raised objection regarding maintainability of the appeal on the ground that the second appeal is not maintainable without leave of the Court.
Learned counsel for appellants prays for and is granted 24 hours time to move appropriate application seeking permission to appeal giving copy of the same to the counsel for other side, who may file objections, if any, within three days thereafter.
List next week."
6. The applications for leave to appeal were filed by the appellants thereafter which are to be decided first.
7. Learned counsels for appellants-applicants submit that they are successor-in-title of respondent no. 3, Raebareli Development Authority as they had purchased the property in question through a valid conveyance-deed. The respondent no. 3, Raebareli Development Authority mischievously and in collusion with respondents no. 1 & 2 have not filed any second appeal against the impugned judgment and decree, in advantage whereof the respondents no. 1 and 2 are trying to dispossess the appellants-applicants from the property in question. The appellants are bona fide purchaser for full value of the property in question and are in actual possession of the property. In the event of their rights not being secured and protected by the respondent no. 3, they have no other option but to approach this Court by filing the instant appeal.
8. It is submitted by learned counsels for appellants-applicants that they are the real "aggrieved party" and have right to appeal being the "aggrieved party". It is contended that Section 146 as well as Order XXII Rule 10 Code of Civil Procedure, 1908 (for short "Code") protects the right of the appellants to institute and contest these proceedings as "aggrieved party".
9. Mr. Prashant Singh Gaur, learned counsel for appellants-applicants submits that the Apex Court in the case of Amit Kumar Shaw and another vs. Farida Khatoon and another1 has dealt in detail the doctrine of lis pendense. The transferee pendente lite can be added as a proper party if his interest in the subject matter of suit is substantial and not just peripheral.
10. In the case of Sri Jagannath Mahaprabhu vs. Pravat Chandra Chatterjee and others2, the Full Bench of Orissa High Court has considered the scope of Section 52 Transfer of Property Act and has held that the effect of Section 52 of Transfer of Property Act is that a lis pendense transferee is bound by the decree whether on contest, ex parte or on compromise. The plaintiff is not bound to implead lis pendense transferee, however, the Court in its discretion can implead him as a property party under Order XXII Rule, 10 (1) CPC.
11. Learned counsel for the appellant-applicants also relies on the judgment of the Apex Court in the case of Thomson Press (India) Limited vs. Nanak Builders and Investors Private Limited and others3 wherein the Apex Court while considering the effect of Section 52 Transfer of Property Act has held that the transferee pendente lite is neither illegal nor void ab initio but remains subservient to rights eventually determined by Court in pending litigation.
12. It is submitted that in the case of Hukum Chand vs. Om Chand and Others4 the Apex Court has held that the transfer of interest of plaintiff pendente lite would not affect the litigation and the transferee merely steps into the shoes of its predecessor-in-interest whether he is impleaded as a party or not. Such transferee becomes bound by the result of the eviction suit including any relevant directions, terms and conditions set out in the decree. Such transferee may, of course, seek leave of the Court to come on record.
13. It is contended that the Apex Court in the case of Harvinder Singh vs. Paramjit Singh and Others5 has dealt in detail the maintainability of appeal filed under Sections 96 as well as 100 CPC and it has been categorically held that a person whose legal rights are prejudicially or adversely affected by a decree is the "person aggrieved" by such decree and he can maintain appeal against that decree whether he is a party to the earlier proceedings or not. Reliance has been placed in this regard on paragraphs 17 onwards.
14. Mr. Ankit Srivastava, learned counsel for appellants has relied on the judgment of this Court in the case of Purshottam Das Verma vs. 2nd Addl. Distt. Judge, Allahabad and Others6 wherein it has been held that the effect of Section 52 Transfer of Property Act is not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit.
15. Mr. Mohd. Arif Khan, learned Senior Advocate as well as Mr. Hari Om Singh, learned counsel appearing on behalf of the respondents opposing the applications for leave to appeal submit that the applications for leave to appeal have been filed under misconception which is deliberate. The averments made in para 2 of the applications are not correct. No direction has been issued by the Court to the appellants to move any application seeking leave to appeal. The appellants having not filed any application for leave to appeal at the time of filing of the appeal and the said appeal having been filed with delay, it is not maintainable and liable to accordingly dismissed.
16. It is also submitted that the appellants had purchased the property in dispute knowing-fully-well that the litigation between the plaintiff of the suit and the defendant of the suit is pending in the Court. The appellants did not seek permission of the Court to purchase the property and, therefore, under Section 52 Transfer of Property Act they do not have any right or interest in the property and they cannot be "aggrieved party".
17. It is submitted that the remedy for the appellants lies somewhere else i.e., they may file a suit against respondent no. 3, Raebareli Development Authority in case the property in dispute was wrongly transferred to them without there being any right of transfer of Raebareli Development Authority.
18. It is wrong to say that the appellants are the successor-in-title of Raebareli Development Authority. The Court has held that in the property in dispute the defendants of the suit Raebareli Development Authority and Nagar Palika neither have any interest nor they have any right or title. It is denied that Raebareli Development Authority are in connivance with respondents no. 1 and2, therefore, not chosen to file any appeal. It is also denied that the appellants are the bona fide purchasers.
19. It is submitted that the applications for leave to appeal in the manner in which it has been filed is liable to be rejected as first of all there is no direction of the Court to file any such applications and secondly the applications for leave to appeal at this stage are not maintainable.
20. In support of his submissions, Mr. Mohd. Arif Khan, learned Senior Advocate has placed reliance on the judgment of the Apex Court in the case of The Municipal Corporation of the City of Ahmedabad vs. Chandulal Shamaldas Patel and Others7 wherein it has been held that appeal filed by non-aggrieved party is not maintainable. He has also placed reliance on the Full Bench judgment of this Court in the case of Shir Gaurdham Housing Co-operative Society Ltd. vs. Behari Lal and others8.
21. I have considered the submissions made by the parties' counsel and perused the records.
22. Long and lengthy arguments have been advanced from both the sides on the applications for leave to appeal.
23. It is to be noted that the instant second appeal has been filed with application for condonation of delay. The delay in filing the appeal has not yet been condoned and the appeal has not yet been admitted. Objections to the application for condonation of delay have been filed by the respondents. While considering the question of condonation of delay in filing of appeal, an objection with regard to maintainability of the appeal was raised by Mr. Hari Om Singh, learned counsel for respondents submitting therein that the instant appeal is not maintainable without leave of the Court as the appellants were not party to the proceedings before the lower Courts. At this stage, a request was made by the counsel for the appellants to grant them time to move application for leave to appeal. The Court considering the submissions made by the parties' counsel had granted 24 hours time to the appellants' counsel to move appropriate application seeking permission to appeal, giving copy of the same to the counsel for other side, who may file objections, if any, within three days thereafter.
24. The Apex Court in the case of Harvinder Singh (supra) has considered the right of a person to file an appeal against a decree. It has been held that any person whose legal right prejudicially or adversely affected by a decree is a "person aggrieved" by such decree and he can maintain the appeal against that decree. The Court has noted that in case of Jatan Kumar Golcha vs. Golcha Properties (P) Ltd. it has been held that it is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment. The Apex Court also noted that in the case of Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra it has been observed that the expression "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury, a person aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardized. Relevant paragraphs 17, 18, 19, 20, 24 and 25 in this regard are reproduced below:
"17. Presently, it is apt to note that Sections 96 and 100 of the Code make provisions for preferring an appeal from any original appeal or from a decree in an appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. If a judgment and decree prejudicially affects a person, needless to emphasize, he can prefer an appeal. In this context, a passage from Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Private Ltd. is worth noting: -
"It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment."
18. In State of Punjab v. Amar Singh and another, Sarkaria, J., while dealing with the maintainability of an appeal by a person who is not a party to a decree or order, has stated thus: -
"84. Firstly there is a catena of authorities which, following the doctrine of Lindley, L.J., in re Securities Insurance Co., (1894) 2 Ch 410 have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person who might have been made ex nominee a party - see Province of Bombay v. W.I. Automobile Association, AIR 1949 Bom141; Heera Singh v. Veerka, AIR 1958 Raj 181 and Shivaraya v. Siddamma, AIR 1963 Mys 127; Executive Officer v. Raghavan Pillai, AIR 1961 Ker 114. In re B, an Infant (1958) QB 12; Govinda Menon v. Madhavan Nair, AIR 1964 Ker 235."
19. In Baldev Singh v. Surinder Mohan Sharma and others, a three Judge-Bench opined that an appeal under Section 96 of the Code would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. In the said case, while dealing with the concept of ''person aggrieved', the Bench observed thus:-
"A person aggrieved to file an appeal must be one whose right is affected by reason or the judgment and decree sought to be impugned. It is not the contention of Respondent 1 that in the event the said judgment and decree is allowed to stand, the same will cause any personal injury to him or shall affect his interest otherwise."
Be it noted, in the said case, the challenge in appeal was to the dissolution of marriage of the appellant therein and his first wife which, this Court held, would have no repercussion on the property in the suit and, therefore, the High Court was not justified in disposing of the civil revision with the observation that the revisionist could prefer an appeal.
20. In Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar and another, it was observed that:-
"8..........the right given to a respondent in an appeal is to challenge the order under appeal to the extent he is aggrieved by that order. The memorandum of cross-objection is but one form of appeal. It takes the place of a cross appeal."
In the said decision, emphasis was laid on the term "decree".
24. In this context, we may refer to a recent pronouncement in Ayaaubkhan Noorkhan Pathan v. The State of Maharashtra & ors. wherein this Court has held thus: -
"10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of India & ors., AIR 1977 SC 1361)."
25. Though the said judgment was delivered in a different context, yet it is applicable to the obtaining factual matrix regard being had to the conception of legal injury. Thus, indubitably, the present appellant was a person aggrieved and was prejudicially affected by the decree and, hence, the appeal could not have been thrown overboard treating as not maintainable."
25. In the case of Amit Kumar Shaw (supra), it has been observed by the Apex Court that the doctrine of lis pendense 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. Relevant paragraphs 16, 17 and 18 of the judgment on reproduction read as under:
"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, 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 XXII 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.
17. In the instant case, the applications for substitution were filed by the respective appellants in the second appeals which are still pending on the file of the High Court though it was filed in the year 1993. The appellants have properly, sufficiently and satisfactorily explained the delay in approaching the Court. We see bona fide in their explanation in not coming to the Court at the earliest point of time. Therefore, the appellants who are transferees pendente lite should be made as parties to the pending second appeals as prayed for by them. In our opinion, the High court has committed serious error in not ordering the applications for substitution filed by the appellants. In our view, the presence of the appellants are absolutely necessary in order to decide the appeals on merits. Since the High Court has committed error by rejecting the appellants' applications for substitution treating the same as additional parties and thereby rendering the appellants non-suited. We have no hesitation in setting aside the said orders and permit the appellants to come on record by way of substitution as prayed for. The High Court proceeded on a wrong premise that the appellants had made the application for addition of party whereas the application under consideration was for substitution as the owner had sold the suit property to the appellants and had no interest in the pending litigation.
18. In our opinion, the presence of the appellants was absolutely necessary since the appellants are the only persons who has got subsisting right, title and interest in the suit. The appellants are at liberty to contest the matter on merits."
26. In the case of Sri Jagannath Mahaprabhu (supra) the Full Bench of Orissa High Court while considering the scope of Section 52 Transfer of Property Act has held that even if a lis pendense transferee is not a necessary party and the plaintiff can ignore the transfer even if he has notice thereof and a decree or order obtained by him would be binding on the lis pendense transferee, when a motion is made by the lis pendents transferee to be impleaded as party, the Court may, in exercise of its discretion judicially, add him as a proper party to prevent multiplicity of suits. Relevant paragraph 9 of the judgment on reproduction read as under:
"9. Though in Basant Ram's case (ILR (3974) Him Pra 276) (supra), it has been held that a lis pendens transferee is not a proper party, we are of the view that even if a lis pendens transferee is not a necessary party and the plaintiff can ignore the transfer even if he has notice thereof and a decree or order obtained by him would be binding on the lis pendens transferee, when a motion is made by the lis pendens transferee to be impleaded as a party, the court may, in exercise of its discretion judicially, add him as a proper party to prevent multiplicity of suits."
27. In the case of Thomson Press (India) Ltd. (supra), the Apex Court has considered a case where the property in question was transferred despite having notice and knowledge of injunction granted by the Court below in such pending suit. It was held that the transfer pendente lite is neither illegal nor void ab initio but remains subservient to rights eventually determined by Court in pending litigation. It was also held that the transfer in favour of purchaser pendente lite is effective in transferring title subject to certain obligations as decision of Court in a suit is binding not only on litigating parties but also on those who derive title pendente lite.
28. In the case of Hukum Chand (supra) the Apex Court has held that transfer of interest of plaintiff pendente lite would not affect the progress of litigation and it will remain unaffected, except when transfer results in wiping out cause of action itself or deprives transferee of the right to the decree, for example if cause of action were personal to original plaintiff. Relevant paragraph 9 of the judgment on reproduction read as under:
"9. As to the second contention, we have already pointed out that the appellant tenant has not taken any steps for bringing the tranferee or the assignee of the respondent landlord on record in this appeal in spite of his having acquired knowledge as early as in November 1988, of the respondent having transferred his title in the suit property through sale deeds. The sale deeds are registered deeds. The appellant tenant could have obtained copies thereof and placed on record the terms and conditions of the transfer, which has not been done. In the absence of any application under Order 22 Rule 10 CPC having been filed by the appellant tenant and in the absence of the relevant transfer deeds having been brought on record, we are handicapped in determining the terms and conditions of the transfer effected by the respondent landlord. The situation is coverned, and is taken care of, by Section 52 of the Transfer of Property Act and Order 22 Rule 10 CPC. The transfer is lis pendense. In case of any assignment or creation of any interest during the pendency of a suit, under Order 22 Rule 10 CPC, 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. The Rule is an enabling one and permissive in nature. A Full Bench of the Patna High Court has held in Mahant Sukhdeo Das v. Kashi Prasad Tiwari that in spite of a devolution of interest having taken place during the pendency of a litigation, the same can continue. It is for the assignee to appear in the suit at any stage and defend himself with the leave of the court but he cannot seek to be brought on record as of right. The discretion vests in the court. Though ordinarily the leave will not be refused, nevertheless the court would exercise its discretion in granting the leave on the facts and circumstances of a given case. The tenant having suffered a decree from the High Court, it was for him to make an appropriate application and to seek leave of the court for prosecuting appeal against the person in whom the right and title in the suit property has come to vest. It was also open to such tranferee pendente lite to seek leave of the court for coming on record. The Full Bench has opined in Sukhdeo Das case that such assignment or devolution of right during the pendency of the litigation did not arrest the progress of the litigation. We agree with the view taken by the Full Bench. In our opinion, the only exception is when the transfer of property forming the subject-matter of the suit, pendente lite, results in wiping out the cause of action itself or deprives the transferee of the right to decree, such as where the cause of action was personal to the original plaintiff. Otherwise the only result is that such transferee steps into the shoes of his predecessor-in-interest and remains bound by the result of the suit and would not, at a later stage, be permitted to raise the plea that he was not bound by the result of the litigation because he was not brought on record of the suit and impleaded as a party. The second contention of the learned counsel for the appellant also fails."
29. This Court in the case of Purshottam Das Verma (supra) has held that the effect of the provision of Section 52 Transfer of Property Act is not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit. It does not create any bar in the way of the transferee to proceed with the suit. The decree will have binding effect on the vendee, though not party in the suit. Execution proceeding are continuation of the suit. Relevant paragraphs 30 to 36 are reproduced herebelow:
"30. Durga Prasad Nigam has brought it on record that after filing the suit he executed a sale deed in favour of Smt. Janki Pandey on 16-1-84. This fact is not disputed. The only question is whether Smt. Janki Pandey had any right to file the application on 20-5-86 for setting aside the compromise decree.
31. Section 146 of the Civil Procedure Code reads as follows.
"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."
32. There is no dispute that Smt. Janki Pandey never chose to proceed with the suit after the sale deed was executed in her favour. She was watching her interest and felt that it was safe in the hands of Durga Prasad Nigam but it did not debar her from coming in the picture at the time of the execution of the suit. Execution proceedings were the continuation of suit in proceeding as contemplated under Section 52 of the Transfer of Property Act.
33. Order 22 Rule 10 of the Civil Procedure Code which provides for procedure in case of assignment before final order in the suit runs as follows:
"In the case 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."
34. It empowered her to proceed with the execution proceeding.
35. Accordingly, I agree with the view of the trial court that Smt. Janki Pandey had a right to file an application for setting aside the order dated 7-5-86 and the order has been rightly set aside.
36. No other point was pressed for consideration. The impugned orders have resulted into substantial justice between the parties. I do not find any error of law apparent on the face of record. Accordingly the writ petitions are dismissed with cost."
30. Learned counsel for respondents, on the other hand, have relied on the judgments of the Apex Court in the case of The Municipal Corporation of the City of Ahmedabad (supra) where the Court has held that an appeal by non-aggrieved party is not maintainable.
31. The counsel for the respondents has also relied on the Full Bench judgment of this Court in the case of Shri Gaurdham Housing Co-operative Society Ltd. (supra) particularly paragraph 12 which on reproduction reads as under:
"12. We have no doubt, therefore, that the society would be person interested in the subject matter. We also agree with the view expressed by the learned Judges of the Bombay High Court in the case of Bombay Province v. W.I. Automobile Association (Supra) that technicalities should never be permitted to over ride substantial justice and a person though may not be strictly a party to the proceedings in that court below should be given leave to file an appeal if he has sufficient interest in the subject matter and his interest has been prejudicially affected."
32. Bare perusal of para 12 of the aforesaid judgment clearly indicates that it has been observed by the Full Bench that the technicalities should never be permitted to override substantial justice and a person though may not be strictly a party to the proceedings in that Court below should be given to leave to file an appeal if he has sufficient interest in the subject matter and his interest has been prejudicially affected.
33. It is but evident from the above discussed judgments that there is no dispute to the legal proposition that an appeal is maintainable against a decree by a person who is a "person aggrieved" and non-aggrieved party cannot maintain the appeal filed under Section 96 or 100 CPC.
34. In the instant case, a suit for permanent and mandatory injunction was filed by respondents no. 1 and 2 against respondents no. 3 to 8. It was dismissed on merit vide judgment and order dated 13.1.2010 holding that the entries relied by the plaintiff were neither in consonance with the revenue records and the location of the property in dispute cannot be established. The property in question is shown as nazool land in the management of the Collector, as such, ownership status can never be acquired by the plaintiffs-respondents no. 1 and 2. Respondents no. 1 and 2 thereafter had filed Regular Civil Appeal No. 28 of 2010 which was allowed vide judgment and order dated 02.03.2013 whereby the judgment and order of the Trial Court was set-aside and suit for permanent injunction was allowed granting permanent injunction in favour of respondents no. 1 and 2. Respondent no. 3 was restrained from interfering in the possession and title of the plaintiff over the property in dispute without due process of law and shall not dispossess them without adopting due procedure.
35. During pendency of suit respondent no. 3, Raebareli Development Authority had sold/executed agreement to sale the land in question subsequent to which the appellants were delivered actual physical possession of their respective plots and they had also erected boundary walls. The appellants had no knowledge about the proceedings either, when it appeared before the Trial Court or the appellate Court. It is alleged that the land in question belongs to a Colony developed by Raebareli Development Authority on the basis of the land having been given by the State Government for that purpose. The appellants after coming to know about the decision passed in Regular Civil Appeal No. 28 of 2010 have filed the instant second appeal without any delay.
36. It has been submitted that the appellants are the bona fide purchasers of their respective plots and are in actual physical possession thereof on the basis of the registered sale-deed/agreement to sale and in case their interest in the property in question is not protected, they would suffer irreparable loss and injury. It is also submitted that the appellants have no other remedy but to approach this Court by filing the instant second appeal.
37. It is not in dispute that the appellants have acquired their right over the land in dispute on the basis of the alleged sale-deed/agreement to sale executed by the respondent no. 3, Raebareli Development Authority in their favour during pendency of the proceedings before the learned Courts below. They are the successor-in-interest of Raebareli Development Authority. The first appellate Court has set-aside the judgment and order passed by the Trial Court and has allowed the suit for permanent and mandatory injunction filed by respondents no. 1 and 2 against Raebareli Development Authority and other respondents. Raebareli Development Authority has been restrained from interfering in the peaceful possession and title of respondents-plaintiffs and has also been restrained to dispossess respondents no. 1 and 2 without due process of law. The present appellants claim that they are in possession over the property in dispute and have also raised certain constructions over the land in dispute.
38. It is to be noted that the appellants/applicants were not party to the proceedings before the learned Courts below. Respondent-Raebareli Development Authority has not filed any second appeal challenging the impugned judgment and decree till date and in case leave to appeal is refused to the appellants the impugned judgment and decree shall stand confirmed.
39. Respondents no. 1&2, on the basis of impugned judgment and decree, claim their right to hold possession over the land in dispute. The interest of present appellants would definitely be adversely affected. The appellants as such are "aggrieved party" as their legal right is prejudicially or adversely affected by impugned decree.
40. Moreover, it is to be noted that Section 146 CPC provides that where any proceedings taken by or against any person, then the proceedings may be taken by or against any person claiming under him. Order XXII Rule 10 CPC envisages the procedure in case of assignment, creation or devolution of any interest during the pendency of a suit and provides that the said suit by leave of the Court, be continued by or against any person to or upon whom such interest has come or devolved. The effect of Section 52 Transfer of Property Act is not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit. The decree will have a binding effect on the vendee, though not a party in the suit. As such, in any case, appellants have a right to maintain this appeal.
41. Leave to appeal is granted to the appellants.
42. The applications preferred in this regard are accordingly decided.
43. List this case in the next cause list.
[Ritu Raj Awasthi, J.] Dated: 11th August, 2016 Santosh/-