IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1437 of 2008 ---- 1. Smt. Sumitra devi widow of Laxman Raja Prasad Bubna. 2. Sunil Raja Prasad Bubna son of Late Laxman Raja Prasad Bubna. Both residents of village Jhanjhihat Bazar, Police Station -Pupri, District-Sitamarhi. – Defendants-Petitioners. Versus 1. Sitasharan Bubna son of Late Kali Prasad Bubna, resident of village Jhanjhihat Bazar, Police Station- Pupri, District Sitamarhi. -- Plaintiff-Opposite Party 1st Set. 2. Shub Karan Prasad Bubna son of Late Mahadev Lal Bubna. 3. Saroj Kumari d/o Late Laxman Raja Bubna. 4. Gudi Kumari d/o Late Laxman Raja Bubna. All residents of Village Jhanjhihat Bazar, Police Station -Pupri, District-Sitamarhi. 5. Jusmi Devi w/o Mahabir Prasad Garg. 6. Gayatri Devi w/o Subh Karan Prasad Bubna. 7. Nand Kishore Bubna. 8. Krishna Kumar Bubna. 9. Ashok Kumar Bubna. All sons of Banshidhar Bubna. 10. Chanda Devi. 11. Nirmala Devi. 12. Usha Devi. 13. Miniya Devi. All daughters of Banshidhar Bubna. All are resident of Village Jhanjhihat Bazar Parganapur, Police Station -Pupri, Janakpur Road, Munsif Division Sitamarhi, District- Sitamarhi. 14. Sumitra Devi w/o Mahavir Prasad Murarka, Resident of Village Jainagar, P.O. and P.S. Jainagar, District Madhubani. 15. Indra Chandra Agrawal son of Late Ganga Saran Agrawal. 16. Ashok Chandra Agrawal son of Indra Chandra Agrawal. Both residents of Mohalla Muradpur, Anpurna Narsing Home, P.S. and P.O. Dakhar, District Gaya. 17. Smt. Gayatri Devi d/o Late Draupati Devi w/o Madan Lal Agrawal, Resident of Annpurna Nursing Home, Mohalla Muradpur, P.S. Dakhar, District-Gaya. 18. Savitri Devi d/o Late Drapuri Devi w/o Rajendra Prasad Agrawal, resident of Village-Mohalla Parbatganj Agarsen Awas 105 Delhi. 19. Shakuntala Devi d/o Late Draupati Devi w/o Shankar Lal Sawaragi, Resident of Alakhiya Road, Birganj, Nepal. 20. Sri Ganga Prasad son of Late Jagdish Prasad h/o Late Chanda Devi. 21. Anand Kumar son of Ganga Prasad. Both resident of New Neel Kamal Gudri Bazar Hazipur, P.O. and P.S. Hazipur, District Vaishali. - 2 - 22. Smt. Rekha Devi w/o Sri Vikash Kr. Agrawal d/o Late Chandra Devi. Resident of Guduriya Aushadhalaya Dashemegh P.O. and P.S. and District Varanasi. 23. Suchita Devi w/o Sri Ram Awatar Prasad Agrawal d/o Late Chandra Devi, resident of Village and P.O. Khatima, District Uttaranchal. 24. Sarita Devi w/o Lalit Kumar Banka d/o Late Chanda Devi, resident of Lalit Agency Mohalla Sutapatti, P.O. and P.S. and District Muzaffarpur. 25. Nirmal adopted son of Late Kamli Devi, resident of Village and P.S. and P.O. Rosawra, District-Samastipur. 26. Maniya d/o Late Kamli Devi w/o Late Shankar Prasad Banka, Resident of Village and P.O. and P.S. Sikandarpur, District- Muzaffarpur. 27. Panna Devi d/o Late Kamli Devi w/o Bharat Prasad Bajaj, Resident of P.O. and P.S and District Muzaffarpur. 28. Surya Nr. Prasad Agrawal. 29. Ratan Kumar Agrawal. Both sons of Late Kusheshwar Pd. Agrawal. Both resident of Village Sitaram Kuramal Firm Teghara, P.O. and P.S. Teghara, District-Begusarai. 30. Ram Awatar Banka son of Hanuman Prasad Banka Resident of Chitra Cinema Hall, P.O. and P.S. and District- Muzaffarpur. -- Defendants- Opposite parties 2nd Set. 31. Smt. Sarda Devi w/o Sheonath Prasad Gupta. 32. Rajesh Kumar Gupta s/o Sheonath Pd. Gupta. Both residents of Village Janakpur Road (Pupri) P.O & P.S. Pupri, District-Sitamarhi. Intervenors-Opposite Parties 3rd Set. ----------- For the petitioners : Mr. V.Nath, Ashok Kumar, Satish Kumar and Neeraj Kumar, Adocates. For opposite party no.1 : Mrs. Sarita Kumari, Advocate For opposite parties no.31 & 32: Mr. KumarUday Singh, Advocate. ----- 07. 17.02.2009 Heard learned counsel for the petitioners (defendants), learned counsel for opposite party 1st Set (plaintiff) and learned counsel opposite parties no.31 and 32 (opposite party 3rd Set) (intervenors in the final decree proceeding). The aforesaid parties are the only main contesting parties in the instant matter. 2. This civil revision has been filed by defendants challenging order dated 03.06.2008 by which the learned Subordinate Judge, I, Sitamarhi, allowed intervention petition of - 3 - opposite parties 3rd Set and added them party to the final decree proceeding of Title Suit No.56 of 1960. 3. It is not in dispute that plaintiff-opposite party 1st Set filed Title Suit No.56 of 1960 for partition of their 1/3rd share which was decreed on contest in favour of the plaintiff and preliminary decree of partition dated 25.02.1964 was prepared. Thereafter a petition for preparation of final decree was filed in the year 1987 in which Pleader Commissioner was appointed for Taktabandi etc. and he submitted his report dated 25.07..1992 to the learned Subordinate Judge I, Sitamarhi, before whom the proceeding for preparation of final decree was pending, but although no objection was raised to the said report nor the said preliminary decree had ever been challenged, the matter for preparation of final decree is still pending even after 16 years of the submission of the report. 4. From the averments of the parties, it also transpires that Eviction Suit No. 01 of 1989 was filed by the petitioners for eviction of opposite parties 3rd Set on the grounds of default in payment of rent as well as personal necessity, but the said suit was dismissed on contest by the trial court on 28.09.1996 against which the petitioners filed Eviction Appeal No.32 of 1996 which was allowed by the learned court of appeal below on 31.03.2007 and the claim in the suit of the petitioners was decreed. Against the order of the lower appellate court, opposite parties 3rd Set filed Second Appeal No.93 of 2007 which was dismissed on merits by this court on 03.10.2007. In the said circumstances, the petitioners have filed Execution Case - 4 - No.03 of 2007 for execution of the decree of eviction which is pending before the learned Subordinate Judge, I, Sitamarhi. The said order of this court in the second appeal was challenged by opposite party 3rd Set before the Hon’ble Apex Court in S.L.A No.1859 of 2008, whereafter vide order dated 04.02.2008, the Hon’ble Apex Court directed maintenance of status quo as on that date. In the said circumstances, further proceeding of Execution case remained stayed. 5. Opposite parties 3rd Set were neither parties to the partition suit, nor were parties to the final decree proceeding and they filed a petition dated 10.08.2007 in the final decree proceeding of Title Suit No.56 of 1960 for being added as parties to the said proceeding claiming that earlier they were tenants of two shop premises which were subject matter of eviction suit, but subsequently they had purchased the same by two registered deeds dated 01.03.1988 and 02.03.1988 from the plaintiff (opposite 1st Set) and hence, they may be added as parties to the final decree proceedings. The said petition of opposite parties 3rd Set has been allowed by the learned Subordinate Judge, I, Sitamarhi, by the impugned order dated 03.06.2008 on the ground that since opposite parties 3rd Set had purchased a portion of the premises involved in the partition suit, they have acquired interest in the proceeding and they will be adversely affected if their purchased property is allotted to the share of any co-sharers other than the plaintiff. 6. A very strange observation has been made by the - 5 - learned court below in the third last paragraph of the impugned order holding that until a separate Takta of the shop rooms said to have been purchased by the opposite parties 3rd Set is not prepared in the name of plaintiff, opposite parties 3rd Set would remain tenants of the plaintiff. This order is not only against the specific provisions of law, but is also against the order of the Hon’ble Apex Court by which status quo was directed to be maintained only till the disposal of the S.L.A pending before the Hon’ble Apex Court, but the learned court below has granted a free hand to the tenants opposite parties 3rd Set to remain in possession of the said property until it is allotted to their vendors, although it is not at all legally binding on any court to prepare takhta as per the wishes of the purchaser pendente-lite. 7. So far the sale deeds of opposite party 1st Set in favour of opposite parties 3rd Set dated 01.03.1988 and 02.03.1988 (Exts. E & E/1) are concerned, they are with respect to specific portions of land, namely the shop rooms involved in the eviction suit, but opposite party 1st Set himself being the plaintiff of partition suit claiming that all the properties, including the suit property, were joint, was not legally entitled to sell specific portions of the suit land, especially when preliminary decree of partition has been prepared and has attained finality and final decree proceeding with respect thereto was pending. Section 52 of the Transfer of Property Act is clear in that respect. Furthermore, the Hon’ble Apex Court in case of Sarvinder Singh Vs. Dalip Singh and others, reported in (1996) 5 Supreme Court Cases 539, has specifically held that parties to the - 6 - partition suit are prohibited by operation of Section 52 of the Act to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the other party except with the order or authority of the court. In this case, admittedly the authority or order of the court had not been obtained for alienation of the said properties. Therefore, the said alienation would obviously be hit of the doctrine of lis pendens by operation of Section 52 of the Act. This aspect of the matter has been completely overlooked by the learned court below. 8. The principle of law is well settled that if a person has purchased a property knowing about the litigation, his fate would lie with the fate of his vendor and as such opposite parties 3rd Set will get an appropriate portion from the lands/ premises given to his share in the final decree of partition. In the instant case the opposite parties 3rd Set had full knowledge and information of the partition suit, but in spite of that he purchased the suit property during the pendency of the final decree proceeding, hence they had taken the risk and should be bound by the provisions of law as mentioned above. 9. So far the order of the Hon’ble Apex Court is concerned, no doubt, opposite parties 3rd set shall not be evicted or ousted from the suit premises until the S.L.A. pending before it is dismissed or any such order is passed by the Hon’ble Apex Court, but so far the final decree proceeding is concerned, there is no requirement for adding opposite parties 3rd Set in the final decree - 7 - proceeding as they are neither necessary parties, nor proper parties for deciding the final decree proceeding. In the said circumstances, the learned lower court exceeded his jurisdiction while passing the impugned order, although he had no jurisdiction at all to implead the opposite party 3rd Set in the final decree proceeding. Furthermore, the order of the learned court below is based on wrong presumption of law due to which it has misdirected itself. Accordingly, the impugned order is set aside and the civil revision is allowed. 10. It is quite strange that final decree proceeding is pending since 1987 and in the meantime, the Pleader Commissioner has submitted his report on 25.07.1992 against which no objection has been filed, but still the learned Subordinate Judge, I, Sitamarhi, has not taken a final decision in that regard, although more than 16 years have passed. In the said circumstances, the learned court below is directed to comply the order of this court passed in another civil revision bearing C.R.No.2216 of 2008 dated 15.01.2009 by which another Bench of this court had directed the learned court below to take up hearing of the final decree proceeding on day to day basis and ensure that the same is finally and conclusively disposed of within a period of three months from the date of receipt/production of a copy of this order. Sunil (S. N. Hussain, J.)