Kundalik Hindurao Patil vs Gunda Hari Khot, since deceased by L. Rs. and Others

Mohta Anoop V., J.—The petitioner/plaintiff''s application to implead a third person who is in possession of the property in view of the subsequent events is rejected by the trial Court. It was moved under Order 1, Rule 10 of the CPC (for short, "C.P.C."). The suit is for removal of encroachment and for possession. Therefore, whosoever is in physical possession even though in view of subsequent events, is a necessary party for proper adjudication of the dispute.

The learned trial Judge by relying on the observations made by the Apex Court in para 6 of its decision in Sarvinder Singh Vs. Dalip Singh and Others, , held that the transferee pendentilite need not be impleaded as party to the suit. The relevant observations in the said para 6 reads thus:

Therefore, the alienation obviously would be hit by the doctrine of lis pendense by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit.

Reference is also made to Section 52 of the Transfer of Property Act. Admittedly, the defendants, without prior permission for sale, transferred the property during the pendency of the suit.

The person who is the main party in the suit if transfers such property and/or alienates the premises or the property, it will create great difficulty during the execution of the decree. In a suit of this nature which is basically for removal of encroachment and possession, such transfer need detail scrutiny and inquiry for proper adjudication of the issues, otherwise such decree in the absence of the person who is in physical possession will be futile.

The Apex Court in Dhanalakshmi and Ors. v. P. Mohan and Ors. reported in 2007 DGLS (soft) 53 : AIR 2007 S.C. 1062, while considering the same provision i.e., Order 1, Rule 10 of the C.P.C. and Section 52 of the Transfer of Property Act held as under:

Section 52 deals with a transfer of property pending suit. In the instant case, the appellants have admittedly purchased the undivided shares of the respondents Nos. 2,3,4 and 6. It is not in dispute that the first respondent P. Mohan has got an undivided share in the said suit property. Because of the purchase by the appellants of the undivided share in the suit property, the rights of the first respondent herein in the suit or proceeding will not affect his right in the suit property by enforcing a partition. Admittedly, the appellants, having purchased the property from the other co-sharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the appellants are necessary and proper parties to the suit, which is now pending before the trial Court. We also make it clear that we are not concerned with the other suit filed by the mortgagee in these proceedings.

We, therefore, set aside the order passed by the High Court and order the application for impleadment filed by the appellants herein and array them as party defendants Nos. 7, 8 and 9 in the Suit. The appellants will now be at liberty to file the written statements in the pending suit.

The principle whosoever transfers the property during the pendency of the suit is definitely governed by the provisions of Section 52 of the Transfer of Property Act. But in the present facts and circumstances of the case, in my opinion, the amendment as sought needs to be considered in favour of the plaintiff.

In the result, the application, as moved, is allowed. The petition is also allowed accordingly. No order as to costs.