IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.114 of 2010 Mahendra Sahani, Son of Late Jamadar Sahani,resident of Village- Gaighat, P.O. Gaighat, P.S. Harsidhi, District-East Champaran --------------- Defendant-- Appellant Versus 1. Deyali Sah Son of Late Sheo Narayan Sah ( since deceased) 1(a) Savita Devi W/O Sri Nageshwar Prasad D/O Late Dayali Sah resident of Village- Senmariya, Tola-Bankat, P.O. & P.S. Turkaulia, District- East Champaran 1(b) Lalita Devi W/O Sri Rajan Prasad D/O Late Dayali Sah, resident of Village- Sirninara, P.O. Sirni Bazar, P.S. Malahi, District-East Champaran 2. Om Prakash Prasad, Son of Late Dayali Sah 3. Subhash Prasad, Son of Late Raghunath Sah Both residents of Village- Kauaha, P.O. Manguraha- Gobindganj, District-East Champaran ---- Plaintiffs--- Respondents. ----------- 07 22-07-2011 Heard Sri Sunil Kumar no.3, learned counsel for the appellant and Sri Anil Kumar, learned counsel appearing on behalf of Respondents. The present appeal has been preferred under Order 43, Rule 1 (r) of the Code of Civil Procedure against the order dated 17.11.2009 passed by learned Sub Judge- IV, Motihari, East Champaran in T.S.No.13/09, whereby the learned court below has allowed the petition filed under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure in favour of the plaintiffs-respondents. The plaintiffs-respondents had filed a suit for declaration of their title and possession over the suit land and also with a prayer to declare the sale deed dated 27.11.2007 executed in favour of the defendant –appellant as forged and fabricated document. After filing of the suit apprehending dispossession from the land by the defendant- appellant, a petition was filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The defendant- appellant also filed a reply to the petition filed under Order 39 Rules 1 and 2. The defendant-appellant has 2 come out with a case that he had purchased the land in question from one Nand Lal Sah, who was having his right and title over the suit land. It was pleaded that Nand Lal Sah had born from the wedlock of Dayali Sah, plaintiff-Respondent no.1. The case of the defendant-appellant was that Dayali Sah had solemnized marriage with one Fulmati Devi and Fulmati Devi subsequently was ousted from the house of Dayali Sah and at the relevant time the defendant-appellant was about 6-7 years old. She left the village along with defendant-appellant and settled in an another village- namely „Aamdoi‟, where she ( Fulmati Devi ) solemnized marriage with one Mahadev Sah. Accordingly, it was pleaded that Nand Lal Sah was having right and title over the suit property and he had rightly executed the sale deed in favour of the defendant- appellant on 27.11.2007. It was further pleaded that after the execution and registration of the sale deed possession over the land in question was also delivered by the transferee and he was having the possession over the land in question. From the impugned order as well as materials available on record, it appears that the plea of defendant-appellant regarding genuineness of Nand Lal Sah was seriously doubted. The reason behind the same was that in the voter list of the Village- Aamdoi , the said Nand Lal Sah was shown as son of Mahadev Sah and not the son of Dayali Sah. It is further evident that the land in question was ancestral land of one Chakkan Kanu, who had two sons, namely, Shiv Narayan Sah and Japal Sah . Shiv Narayan Sah had two sons, namely, Raghunath Sah and Dayali Sah. Plaintiff no.2, Om Prakash Sah is the son of Dayali Sah and plaintiff no.3 , Subhash Prasad is the son of Raghunath Sah , brother of Dayali Sah. It is further evident that before the court below the plaintiffs had 3 produced “Hisab Bandobasti” in respect of the suit land as well as a photo copy of registered partition deed dated 2.12.1993. The plaintiffs had filed the suit i.e. T.S.No.13 of 2009 for declaration of title and possession over the land and also for declaring the said sale deed dated 27.11.2007 as void, forged and fabricated. The story, which was introduced by the defendant-appellant, was seriously doubted. I have also perused the materials available on record. Learned court below , while allowing the petition filed on behalf of the plaintiffs- Respondents for granting ad-interim stay has examined the materials in detail and only after being fully satisfied that prima facie case was in favour of the plaintiffs, balance of convenience was also in their favour as well as the fact that in absence of granting any interim injunction the plaintiffs could have suffered irreparable loss, has rightly passed the impugned order. Sri Sunil Kumar, learned counsel for the appellant has seriously raised an objection that the suit was liable to be rejected on the ground of non-joinder of necessary party. He has argued that the vendor i.e. Nand Lal sah has not been impleaded as party defendant and in absence of Nand Lal Sah , the suit is not required to proceed further. He has further argued that the learned court below has not strictly followed the provisions contained in Order 39, Rules 1 and 2 of the Code of Civil Procedure. He has argued that as per Order 1, Rule-10 of the Code of Civil Procedure, it was mandatory on the part of the plaintiffs to implead the vendor of the land in question. Lastly, it was argued that in any event in view of Section 52 of the Transfer of Property Act, both the parties should be directed not to alienate the suit property during the pendency of the suit. 4 Sri Anil Kumar, learned counsel for the plaintiffs-Respondents has supported the impugned order and submits that since the so called transferor appears prima facie to be imposter or non-existent person, it was difficult to implead such person as party defendant. While referring to the impugned order, Sri Anil Kumar, learned counsel for the Respondents submits that the identity of said Nand Lal Sah was not found in the village i.e. Aamdoi, who is said to be transferee of the land. The said Nand Lal Sah S/O Dayali Sah was not found in the village- Aamdoi and, as such, a non-existent person cannot be impleaded as party in the suit. After hearing the parties and perusing the materials available on record, I do not find any material to interfere with the impugned order. So far as the question of issuance of direction restraining the parties to alienate the suit property is concerned, it goes without saying that so long the suit/proceeding is pending , the principle of lis-pendence will apply and, as such, no further direction is required to be passed by this Court. In view of the facts and circumstances, I do not find any merit in the appeal. Accordingly, the appeal stands dismissed. NKS/- ( Rakesh Kumar, J. )