IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7833 of 2010 1. Sri Rishikesh Kumar S/O Sri Ram Lakhan Rai A Resident Of Mohalla- Sultanpur, Devi Asthan, P.O.- Danapur Cantt., P.S.- Danapur, Distt.- Patna Versus 1. Sri Binay Kumar Srivastva S/O Late Ram Babu Srivastva R/O Mohalla- Near Sultanpur Math, P.O.- Danapur Cantt., P.S.- Danapur, Distt.- Patna 2. Sushri Payal Srivastva Minor Daughter of Sri Binay Kumar Srivastva, Respondent No. 1 R/O Mohalla- Near Sultanpur Math, P.O.- Danapur Cantt., P.S.- Danapur, Distt.- Patna 3. Sushri Lovely Srivastva Minor Daughter of Sri Binay Kumar Srivastva, Respondent No. 1 R/O Mohalla- Near Sultanpur Math, P.O.- Danapur Cantt., P.S.- Danapur, Distt.- Patna 4. Sushri Gungun Kumari Minor Daughter Of Sri Binay Kumar Srivastva, Respondent No. 1 R/O Mohalla- Near Sultanpur Math, P.O.- Danapur Cantt., P.S.- Danapur, Distt.- Patna 5. Sri Dhiraj Kumar Srivastva S/O Sri Binay Kumar Srivastva R/O Mohalla- Near Sultanpur Math, P.O.- Danapur Cantt., P.S.- Danapur, Distt.- Patna 6. Smt. Poonam Kumari W/O Sri Manjay Kumar R/O Vill.- Bhatehri, P.O.- Vayapur, P.S.- Maner, Distt.- Patna. At Present Subhash Bhawan, Hathikhana Mor, Mainpura, P.O.- Danapur Cantt., P.S.- Danapur, Distt.- Patna 7. Sri Manjay Kumar S/O Sri Vishwanath Singh R/O Vill.- Bhatehri, P.O.- Vayapur, P.S.- Maner, Distt.- Patna. At Present Subhash Bhawan, Hathikhana Mor, Mainpura, P.O.- Danapur Cantt., P.S.- Danapur, Distt.- Patna 8. The State of Bihar through Collector, Patna having Office at Patna Museum, P.O.- G.P.O., P.S.- Pir Bahore, Distt.- Patna 9. Circle Officer, Danapur At Circle Office, Mohalla- Nasriganj, P.O.- Digha, P.S.- Danapur, Distt.- Patna 10. The Registrar General of Registration Bihar Government having Office at Old Secretariat, Patna 11. The District Registrar, Patna 12. The Sub-Registrar, Danapur, Patna 13. Special Officer, Danapur Nagar Parishad, Patna 14. The 2nd Sub-Ordinate Judge, Danapur, Patna ----------- 5 14.11.2011 Heard Mr. A.B. Ojha, learned counsel for the petitioner and Mr. Ram Janam Maharaj, learned counsel for the respondent Nos. 7 to 9. The petitioner is aggrieved by the order dated 10.02.2010 passed by learned Sub- Judge-2nd , Danapur in Title Suit No. 38 of 2008 whereby the petition filed on behalf of the petitioner seeking 2 impleadment in the title suit as a co-plaintiff has been rejected. Facts of the case in brief is that a sale deed was executed by the plaintiff-respondent No.1 in favour of the defendant respondent Nos. 6 and 7 on 26.07.2006 and which was duly registered on 27.07.2006. On around two years since after the registration of the sale deed the suit in question came to be filed by the plaintiff on 26.02.2008 seeking a declaration of title and confirmation of possession over the property which was subject matter of the sale deed registered on 27.07.2006 and for declaration thereof as null and void on grounds of fraud having been committed by the defendants and upon non payment of the consideration amount. Even while the suit was pending consideration before the trial Court, a second sale deed was executed by an Attorney holder of the plaintiff namely Sanjay Kumar in favour of the present petitioner on 29.03.2008. It is not in dispute that neither the plaintiff had executed the sale deed himself nor any such permission had been taken from the trial Court before execution of the sale deed in favour of the petitioner on 29.03.2008 by either the plaintiff or the Attorney holder in terms of the provisions of Section 52 of the Transfer of Property Act,1882 (hereinafter referred to as the ‘Act’). Soon thereafter the petitioner filed an application in question invoking the provisions of Order 1 Rule 10 of the Code of Civil Procedure seeking impleadment in the suit proceeding as a co-plaintiff. The application having been rejected by the learned court below inter alia on grounds of transaction being hit by the provisions of Section 52 of the Act as also that the presence of the petitioner was not required for adjudication of the lis in question, hence the present writ petition. 3 Mr. A.B. Ojha, learned counsel for the petitioner relying upon a catena of judgments submits that as admittedly the entire subject matter of the sale deed which is pending adjudication before the trial Court in the suit in question, stands transferred in favour of the petitioner hence he becomes a relevant party as he has stepped into the shoes of the vendor by virtue of the sale deed executed on 29.03.2008. It is submitted that even if a right of a party can be remotely traced, he becomes a necessary party to the proceedings and his impleadment cannot be refused. Learned counsel for the petitioner in support of his contentions has relied upon the following judgments:- (1) AIR 1958 SC 886 para 13 (Razia Begum versus Sahebzadi Anwar Begum & Ors.) (2) 2009(3) PLJR 801 para 9 (Smt. Dharm Shila Devi & Ors. Versus Ramesh Chandra Tiwari & Ors.) (3) AIR 2005 SC 2209 para 16 (Amit Kumar Shaw & Anr. Versus Farida Khatoon & Anr.) (4) AIR 1983 SC 355 para 6 (Bhagwan Swaroop & Ors. Versus Mool Chand & Ors.) (5) AIR 1999 SC 976 ( Savitri Devi versus District Judge, Gorakhpur & Ors.) (6) AIR 2010 Patna 5 (Anita Kuwar & Ors. Versus Chandra Bhushan Singh & Ors.) Learned counsel with reference to the judicial pronouncements 4 relied upon and taken note of hereinabove submits that in each of the judgments the Hon’ble Court have recognized that where any interest of a party is involved in a suit proceedings then notwithstanding the provisions of Section 52 of the Act, he becomes a proper party to the proceedings. It is submitted that the suit property stood transferred in favour of the petitioner by virtue of the sale deed dated 29.03.2008 is not in dispute and regard being had to the fact that if at any stage of the proceedings, the plaintiff chose to abandon the suit, the interest of the petitioner would be seriously prejudiced and in this background he becomes a proper party to the proceedings. Mr. Ram Janam Maharaj, learned counsel for the defendant- respondent submits that an impleadment of any party to a suit proceeding is not on mere asking and the circumstances that has to be gone into. With reference to the order impugned in the writ proceedings learned counsel submits that the petitioner even being aware of the suit proceedings took a calculated risk of purchasing the property which was subject matter of the suit proceeding and thus purchased litigation and for which only he can be blamed. It is further submitted that the property in question was purchased by the petitioner not through the plaintiff but through an Attorney holder and thus even in this background the petitioner does not become a necessary party to the proceedings. Learned counsel for the defendant-respondent has relied upon the following judgments of this Court as well as other Courts and the Supreme Court. (1) AIR 2010 Patna 5 5 (Anita Kuwar & Ors. Versus Chandra Bhushan Singh & Ors.) (2) AIR 2011 Delhi 89 (S.N. Arora versus Brokers & Borkers Pvt. Ltd.) (3) AIR 2004 SCC 173 (Bibi Zubiada Khatoon versus Nabi Hassan Saheb and Anr.); “which is same as (2004) 1 SCC 191; 2004 (1) PLJR 66 ; (4) (2010) SCCR 770 para 20 (Vinod Seth versus Devinder Bajaj & Anr.). Learned counsel for the defendant relied upon the judgment of the Supreme Court since reported in 2011 SCCR 344 (Kanhaiyalal Lalchand Sachdev versus State of Maharastra ) submits that the petitioner in stead of seeking impleadment in the present proceedings has an alternative remedy of filing of an independent suit. Learned counsel thus submits that the order passed by the learned Court below being well within the discretionary jurisdiction vested in the Court below under the provisions of Order 1 Rule 10 of the Code, no interference is required by this Court in exercise of powers under Articles 226 or 227 of the Constitution of India. I have heard learned counsel for the parties and have perused the materials available on the record. The only issue which requires consideration is whether the petitioner is a relevant party for adjudication of the issue raised and pending before the Court below. The suit has been filed for declaration of title and possession over the property mentioned at Schedule 2 of the plaint and for 6 declaration of the sale deed dated 26.07.2006/27.07.2006 as forged inoperative, illegal, unconstitutional and without payment of any consideration amount. It is thus manifest and even where the suit in question with regard to the property which is said to have been purchased by the petitioner remained pending for adjudication before the Court below including the issue as to whether or not the sale deed dated 26.07.2006/27.07.2006 could be declared null and void on grounds of fraud and non payment of consideration amount, a person by the name of Sanjay Kumar claiming to be an Attorney holder of Smt. Kirandeep Srivastava, wife of Deepak Kumar Srivastav, the plaintiff respondent No.1, executed the sale deed in favour of the petitioner on 29.03.2008. Neither Sanjay Kumar, the Attorney Holder nor Smt. Kirandeep Srivastava from whom the said Sanjay Kumar claims to derive power to execute the sale deed, are party before the Court below. In the circumstances set forth where the suit in question has not been filed by the person who executed the sale deed in favour of the petitioner or the persons from whom he claims to have derived power to execute the sale deed i.e. Sanjay Kumar or Smt. Kirandeep Srivastava, no right has accrued on petitioner to seek impleadment. Apart from the aforesaid circumstances, the issue raised before the Court below seeking declaration of the sale deed dated 26.07.2006/27.07.2006 as null and void on grounds of fraud and non consideration of payment of amount in no manners requires the presence of the petitioner for adjudication of the lis, pending in the Title Suit. The petitioner having taken a calculative risk in purchasing the property even if it is assumed that he had no information about the suit, yet the transaction would be hit by 7 the provisions Section 52 of the Act and would be conditional upon the outcome of the suit proceeding as held by the Supreme Court in the case of Vinod Seth versus Devinder Bajaj & Anr reported in 2010 SCCR 770 paragraph 21. The mere apprehension of the petitioner of the possibility of the plaintiff colluding with the defendant in the suit proceeding pending before the Trial Court cannot be a ground for seeking impleadment. Even on merits the petitioner does not have a cause to seek impleadment for the reason that the property which is subject matter of the sale deed executed in his favour on 29.03.2008 already stood transferred in favour of the defendant by virtue of registered sale deed executed on 27.07.2006 and thus the title of the vendor stood transferred in the defendant and which was yet to be negated by a Court of competent jurisdiction. Thus until the sale deed dated 26.07.2006/27.07.2006 is declared null and void on grounds of fraud and non payment of consideration amount by the trial Court, the petitioner cannot claim any right either legally or on equitable grounds to seek impleadment in the suit proceedings by virtue of the sale deed dated 29.03.2008, which again has not been executed by the plaintiff in the suit proceedings but a third person claiming to be an attorney holder. For the reasons aforesaid, I find no merit in the writ petition and the same is dismissed. Bibhash (Jyoti Saran, J.)