Abdul Taher Khan and ors. Vs. Fatima Bibi and ors. - Court Judgment

Sanju Panda, J.

1. Since common questions are involved in both the Writ Petitions, they were heard together and are being disposed of by this common Judgment.

2. Both the Writ Petitions arise out of Title Suit No. 130 of 1980-I filed by present Opposite Parties 1 to 3 in the Court of Learned Civil Judge (Senior Division), Bhadrak for partition claiming 3/8th share. For better appreciation, the genealogy of both the parties is given below:

GENEALOGY

Sk. Manohar Ali

Sk. Asgar Ali

Jaheda @ Jabeda Bibi (wife) (D.3)

Sk. Akbar Ali (D.1) : Sk. Umar Ali (D.2): Fatema Bibi (Plff. 1) : Sayera Banu (Plff.2) : Ayesha Sultana (Plff.3)

From the above genealogy, it appears that Sk. Manohar Ali had one son, namely, Sk. Asgar Ali who died leaving behind his widow Jaheda @ Jabeda Bibi, Defendant No. 3- present Opposite Party No. 6 and two sons, namely, Sk.Akbar and Sk. Umar- Defendants 1 and 2 who are present Opposite Parties 4 and 5 in W.P.(C) No. 11179 of 2004 and three daughters who are the Plaintiffs. As per the Plaintiffs' case, the immovable properties described in Schedules 'Kha', 'Ga', 'Gha' and 'Cha' and the movable properties described in Schedule 'Una' belonged to Sk. Asgar Ali. Properties described in Schedule 'Cha' were acquired by the Transport and Railway Departments and compensation granted by those Departments was received by Defendants 1 and 2. There is a Lodging house and some other houses/shops standing in Schedule 'Chha' properties which has been rented out and rent amounting to Rs. 4,99,500 is being collected by Defendants 1 and 2. Plaintiffs claim 6 annas interest in all the properties mentioned in Schedules 'Kha', 'Ga', 'Gha', 'Cha' and 'Una' and as rent collected from the Schedule 'Chha' properties was never partible, the Plaintiffs filed the suit for partition and separate possession.

3. Defendants 1 and 2 filed their written statement controverting the Plaintiffs' claim in Schedule 'Kha' properties. They specifically averred that Schedule 'Kha' property belonged to their grand-father late Sk. Manohar Ali and he gifted away about Ac.14.00 acres of land to Defendants 1 and 2 separately in the year 1955. Schedule 'Chha' properties were sold by late Asgar Ali to different persons and the purchasers have been possessing those properties separately. As the said purchasers were not made parties, the suit was not maintainable for non-impleation of those purchasers as parties to the suit. They further averred that the properties mentioned in Schedule 'Cha' were acquired by Transport and Railway Departments. The properties described in Schedule 'Ga' belonged to the Government and their father Sk. Asgar Ali had got the same on annual lease basis and after the death of Sk. Asgar Ali in the year 1966 the properties had not been leased out till 1971. In the year 1971 Defendants 1 and 2 got fresh lease in their names and they constructed pucca houses thereon and rented out the said houses. Therefore, the property described in Schedule 'Ga' was not liable for partition.

4. So far as compensation received by Defendants 1 and 2 from the Transport and Railway Departments in respect of Schedule 'Cha' properties is concerned, it was averred that the same was received by Sk. Asgar Ali and as Defendants 1 and 2 have not received the same, they are not liable to get any share therefrom. As such, they prayed for dismissal of the suit. The suit was disposed of on 21.9.1988 on contest. The Trial Court on the basis of evidence on record held that the Plaintiffs have no claim over the properties mentioned in Schedule 'Ga' inasmuch as the properties described thereunder belong to Government and are being leased out and renewed from time to time, and the Plaintiffs' father has absolutely no right over the said properties. As such Plaintiffs cannot claim any share over such properties. After the death of Sk. Asgar Ali in the year 1966, the property was not leased out till 1971. In the year 1971, Defendants 1 and 2 in their personal capacity applied for lease and the same was granted in their favour. The said finding of the Trial Court was confirmed by this Court in First Appeal No. 248 of 1988 as Defendants 1 and 2 constructed Lodging and houses after they got the land from the Government on annual lease basis. As such, the Plaintiffs are not entitled to any share from those houses and the rent collected therefrom.

So far as compensation given by the Transport and Railway Departments in respect of the land was concerned, the finding of the first Appellate Court is that since the compensation was received by Sk. Asgar Ali and the Defendants had not received any compensation amount, the Plaintiffs were not entitled to any thing from the said amount.

5. So far as movable properties are concerned, whether the movable properties are still in existence or not. As there was nothing on record, the claim for partition in respect of those movable properties was rejected by the Trial Court which was confirmed by this Court and this Court allowed the First Appeal in part and remanded the matter to the Trial Court with the directions that Plaintiffs' claim for partition of properties in 'Ga', 'Gha', 'Una', 'Cha' and 'Chha' schedules is rejected. But the properties 'Kha' schedule, excluding the homestead properties and the properties gifted by Sk. Manohar Ali, are to be partitioned and Plaintiffs shall be allotted 3/8th share. As the Plaintiffs had not clearly described the plaint schedule, this Court gave liberty to the Plaintiffs to amend the plaint schedule and incorporate the Hal plot numbers excluding the properties gifted by Sk. Manohar Ali and also the homestead, the other houses and lodging-house enjoyed by the Defendants and directed the Trial Court to decide the Plaintiffs' right over the properties afresh. The Plaintiffs were directed to amend the plaint schedule and implead the subsequent purchasers during the pendency of the appeal in the suit as they had sold some properties during the pendency of the appeal as alleged by the Defendants. On the above findings, the first appeal was disposed of by this Court on 23rd August, 2002 setting aside the decree of the Trial Court and dismissing the prayer of the Plaintiffs for partition of the properties mentioned in Schedule 'Ga', 'Gha, 'Una', Cha' and 'Chha' and remanded the matter to the Trial Court to decide the Plaintiffs' right over 'Kha' schedule properties other than the house site, lodging house, other houses and shops enjoyed by Defendants 1 and 2.

6. As regards the land acquired by the Transport and Railway Departments and the land gifted by Sk. Manohar Ali, this Court in the First Appeal observed as follows:

After such amendment application is filed relating to the plaint Schedule by mentioned the corresponding Hal plot numbers in respect of 'Kha' Schedule properties and by impleading the subsequent purchasers, the Defendants and the subsequent purchasers shall be at liberty to file written statement confining to such amendment. The parties shall be permitted to lead evidence only in respect of 'Kha' Schedule properties of the plaint. The properties which were alienated in favour of third parties during the pendency of the appeal shall as far as possible by adjusted to the Plaintiffs' share and in case the Court finds that they had sold excess lands beyond their share those sales shall be declared as invalid.

7. After remand, the Plaintiffs filed amendment application which was allowed. The subsequent purchasers filed their applications under Order 1, Rule 10 of the Civil Procedure Code to implead them as parties to the suit but the same was rejected on 3.9.2004 by the Trial Court on the ground that they filed the sale deed dated 13.9.2002 after disposal of the First Appeal. Therefore, they were not entitled to be impleaded as parties as this Court directed to implead only the subsequent purchasers during the pendency of the appeal.

8. The Learned Counsel appearing for the Petitioners submitted that since the Petitioners are the purchasers from the Plaintiffs and have interest in the properties in question, to safeguard their rights, they are to be impleaded as parties to the suit. He further submitted that this Court in First Appeal No. 248 of 1988 disposed of on 23.8.2002 did not give any finding that subsequent purchasers should not be made parties to the suit. As such, there is no bar to implead the Petitioners as parties and the interpretation of the order passed by this Court in First Appeal No. 248 of 1988 by the Trial Court was completely erroneous and not sustainable in the eye of law.

9. The Learned Counsel appearing for Defendants 1 and 2, the present Opposite Parties 4 and 5, submitted that since the direction was given in First Appeal No. 248 of 1988 to implead the purchasers as parties during the pendency of the appeal, there was no scope to implead the present Petitioners, who are the subsequent purchasers from the Plaintiffs, as parties to the suit. As such, there is no necessity to interfere with the impugned Order Dated 3.9.2004.

10. The application filed by Defendants 1 and 3 under Order 1, Rule 10 of the Civil Procedure Code to strike out the name of Opposite Parties 9 to 19 who are the subsequent purchasers was rejected by the Trial Court on 7th August, 2007. Aggrieved thereby, Defendant No. 1 has filed W.P.(C) No. 14199 of 2007 stating therein that this Court in First Appeal No. 248 of 1988 specifically directed that the Plaintiffs have to amend the plaint schedule giving detailed plot numbers as the suit schedule was suffered from vagueness and the purchasers during the pendency of the appeal are only to be impleaded. As Opposite Parties 9 to 19 are the subsequent purchasers, they shall not be impleaded as parties to the suit. Observing the same fact, the Trial Court rejected the application filed by Defendants 1 to 3 to implead the subsequent purchasers as parties. It was contended by the Learned Counsel appearing for Defendant No. 1-Petitioner that the Trial Court should not have rejected the Defendants' application under Order 1, Rule 10 of the Civil Procedure Code to strike out the name of the Opposite Parties 9 to 19 as Defendants. As such, interference of this Court is necessary failing which the Defendants will face harassment and irreparable loss to proceed with the litigation against the lis pendens purchasers which is a bar under Section 52 of the Transfer of Property Act.

11. From the above submissions of the Learned Counsel for the parties, this Court has to decide whether the subsequent purchasers are to be impleaded as parties to the suit.

12. In a decision reported in Amit Kumar Shaw and Anr. v. Farida Khatoon and Anr. reported in : AIR2005SC2209 , the Apex Court taking into consideration the provision of Order 1, Rule 10 read with Order 22, Rule 10 of the Civil Procedure Code held as follows:

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 discretion to make him a party. But the transferee pendent 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 pendent 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 pendent 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 pendent 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 pendent lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.

13. The Court is primarily concerned with the question whether the presence of the party proposed to be impleaded would advance complete and satisfactory adjudication of the subject-matter in controversy. If the Court feels that the presence of any party is required for effectual adjudication, it has even the sou motu discretion to implead such party in the interest of justice. Therefore, it is clear that the discretion of a Court to direct impletion of a party is not always confined to filing of an application to that effect.

14. in the case at hand, as the Petitioners purchased some property from one of the co-sharers, they can put-forth their claim on the undivided share of their vendor and in the suit for partition which is pending and the right of the parties can be adjudicated at the stage of final disposal of the suit. In a suit for partition also, parties can agitate their claims and prerogatives at the stage of final decree. While doing so, the Court is also to take into consideration the events/happenings occurring subsequent to passing of the preliminary decree as the Court has to adjudicate all the disputes completely and finally in respect of subject-matter of partition. As the Court below has come to a finding of fact by asking itself a wrong question or approached the question in an improper manner, the said finding cannot be said to be one rendered with jurisdiction and, therefore, is amenable to correction under Article 227 of the Constitution.

15. In view of the above position of law, this Court sets aside the impugned Orders Dated 3.9.2004 as well as 7.8.2007 passed by the Learned Civil Judge (Senior Division), Bhadrak in O.S. No. 130 of 1980-I and directs that the subsequent purchasers from the Plaintiffs are to be imp laded as parties to the suit and the suit shall be proceeded accordingly.

The Writ Petitions are accordingly disposed of.