Shakti Chand vs Chamaru Ram etc.

R.S. Pathak, C.J.—This appeal against the decree of the lower Appellate court dismissing a suit for possession has been brought by a transferee of the Plaintiffs to whom the land in dispute was sold during the pendency of the appeal in the lower Appellate court.

The Plaintiffs filed a suit for possession alleging that the Defendant Rirku (whose legal representative Chamaru has been brought on the record) executed a document dated December 22, 1964, undertaking to relinquish tenancy rights after the harvesting of the Rabi crop 1965, that the Defendant had not fulfilled the terms of the document and had insisted on maintaining possession thus contravening his undertaking, and hence it was prayed that a decree for possession should be granted. In the written statement filed by Rirku it was denied that any such agreement had been entered into by him, and it was asserted that a blank document had been signed by him on the representation that an objection had to be filed by him as tenant as the land would otherwise be acquired by the Government. It was also asserted that the agreement was without consideration and was a void transaction. The defence included the plea that the Defendant was an occupancy tenant under Punjab Act No. VIII of 1953 and that he had become owner of the land, and therefore, a civil court had no jurisdiction to entertain the suit.

The trial court decreed the suit, holding that it had jurisdiction to entertain it, that the agreement dated December 22, 1964, had in fact been executed by the Defendant, that the agreement had not been obtained by fraud and that the Defendant was not an occupancy tenant of the land.

An appeal was filed by Rirku before the lower Appellate court. During the pendency of that appeal the Plaintiffs obtained possession pursuant to the decree of the trial court and sold the property to the present Appellant and the Respondents Nos. 7 and 8. The vendees were put in possession of the land. On September 13, 1969, the learned Additional District Judge, Kangra, allowed the appeal and dismissed the suit. He held that the agreement had not been executed by Rirku and fraud had been practised upon him, and that the transaction was void inasmuch as no consideration had passed. And now this second appeal.

It may be pointed out that an application was made by the present Appellant for leave to prosecute the appeal, and that application has since been allowed.

The first contention on behalf of the Appellant is that he should have had an opportunity of being heard in the appeal before it was disposed of by the lower Appellate court and that for want of such hearing he has been gravely prejudiced. It is open to the Appellant or Respondent in appeal to apply under Order 22 Rule 10 read with Order 22 Rule 11 of the CPC for bringing on the record the transferee of a party to the appeal if during the pendency of that appeal the property in dispute has been sold to such transferee. No such application was made during the pendency of the appeal. Learned Counsel for the Appellant relies on Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, In that case, which was an appeal from the Calcutta High Court, the Supreme Court held that the transferee should have been impleaded in the appeal before the Calcutta High Court having regard to the circumstances which clearly showed that the transferor, although purporting to pursue the proceeding before the trial court, was acting against the interests of the transferee. The facts disclosed that the application by the transferee to be brought on the record in the appeal before the High Court had been opposed by the transferor. The allegation of the transferee was that the transferor had entered into collusive arrangements with the contesting parties with a view to defeat her rights, and she prayed that she should be brought on the record in order that she could protect her interest. It was in those circumstances that the Supreme Court took the view that the Calcutta High Court should have exercised its discretion in favour of the transferee in that case and should have brought her on the record as an Appellant. In the present case, there is nothing to show that the vendors have been acting against the interests of the transferee in the appeal before the lower Appellate court. The law does not require that if property is transferred during the pendency of an appeal and the transferors are already on the record it is still necessary that the transferee should be brought on the record. A discretion has been vested in the court, and all that is necessary to see is that the discretion is properly exercised. The mere circumstance that the property has been transferred during the pendency of the appeal does not give a right to the transferee to be brought on the record. In my opinion, there is nothing to suggest that ex debito justitiace the present Appellant and the Respondents Nos. 7 and 8 should have been brought on the record before the lower Appellate court.

On the merits of the appeal it is urged by learned Counsel for the Appellant that the finding of the lower Appellate court that Rirku had not entered into an agreement is erroneous in point of law. He has referred to the circumstances relied on by the lower Appellate court. After hearing learned Counsel, I am not satisfied that the judgment under appeal is vitiated by any error of law.

The appeal fails and is dismissed, but in the circumstances there is no order as to costs.