IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19215 of 2010 1. Md.Khurshid S/O Late Md. Yasin R/O Vill.- Bardaha, Police Station- Bisfi, Distt.- Madhubani Versus 1. Md. Firoz S/O Late Reyazuddin R/O Vill.- Bardaha, Police Station-Bisfi, Distt.- Madhubani ----------- For the Petitioner :- Ms. Namrata Mishra, Advocate For the Respondent:- Mr. Dharmeshwar Mishra, Advocate ******** 4 29.08.2011 Heard learned counsel for the parties. With the consent of the parties the writ petition has been taken up for disposal at the stage of admission itself. The writ petition has been filed challenging the order dated 30.09.2010 passed by Sri Om Prakash, Sub-Judge-1, Madhubani in Title Suit No. 13 of 2007 (Md. Firoz Ahmad vs. Md. Ghayasuddin) whereby the petition filed by the petitioner seeking impleadment as party defendant in the title suit in question, has been rejected. Brief facts of the matter giving rise to the present writ petition is that a title suit was filed by the sole respondent giving rise to Title Suit No. 13 of 2007 praying inter alia for specific performance of the contract of sale, agreed upon by the defendant, Md. Ghayasuddin with the plaintiff-sole respondent herein in respect of the suit property, for a consideration amount of Rs. 1,53,200/- and which according to the plaintiff-respondent was received by the vendor in March, 2005 in full and final settlement of the claim. It was the case of the plaintiff-respondent that having agreed to sell the suit property in favour of the plaintiff-respondent and having received the entire consideration amount, the vendor-defendant residing 2 in England, failed to honour his agreement and did not take any steps for execution of the sale deed in furtherance of his commitment under the agreement for sale entered into between the vendor-defendant and the plaintiff-respondent herein. It is the case of the plaintiff-respondent that a sale deed in the form of „agreement-Mahadanama‟ was executed by the vendor-defendant on 13.03.2005 wherein his son Md. Jiyauddin stood as one of the witnesses and whereafter he was handed over the peaceful possession of the suit property upon receipt of the consideration amount of Rs. 1,53,200/- with an assurance of execution of the sale deed on his next visit to India. It is the case of the plaintiff-respondent that after execution of the „Mahadanama‟ on 13.03.2005, despite reminders, the vendor-defendant showed inability to come to India and lastly refused on 04.02.2007 to execute the sale deed in favour of the plaintiff-respondent. It is in these circumstances that the plaintiff-respondent filed the title suit in question praying for a decree of specific performance of contract on the basis of „Mahadanama‟ dated 13.03.2005 executed by the vendor-defendant in favour of the plaintiff-respondent. While the suit was put on trial, a petition came to be filed on behalf of the petitioner on 28.01.2010 before the trial Court with a prayer to implead him as defendant in the suit in view of the sale deed dated 24.11.2008 executed by the vendor-defendant in favour of the petitioner herein. It was the contention of the petitioner that as the property which is the subject matter of the suit, has been transferred by the vendor in favour 3 of the petitioner under the sale deed dated 24.11.2008 and as a consequence whereof the petitioner has stepped into the shoes of the original vendor, he becomes a necessary party to the suit and thus requires to be impleaded because any order affecting adversely the position of the vendor/defendant in the title suit would also have an impact on the interest devolved on the petitioner by virtue of the sale deed in question. The petition dated 28.01.2010 filed on behalf of the petitioner seeking impleadment was resisted and contested by the plaintiff- respondent herein inter-alia in view of the nature of the suit being that of the specific performance and the provisions of Section 52 of the Transfer of Property Act, 1882 (hereinafter referred to as the “Act”). It was the contention of the plaintiff-respondent herein that by allowing the impleadment of the petitioner, the very nature of the suit would stand altered from a suit of specific performance to a title suit It was contended that the petitioner having purchased the suit property during the pendency of the suit had done it on his own peril and would have to suffer the risk and loss if the suit ultimately is decided in favour of the plaintiff-respondent. It was also the contention of the plaintiff- respondent that on the date of filing of the suit, the petitioner had no right, title or interest in the suit property and thus being stranger to the contract, his presence was not a relevant factor for determination of the issue raised in the suit requiring specific performance of contract by the vendor-defendant. The petition filed on behalf of the petitioner seeking impleadment in the suit was rejected by the learned trial court vide order passed on 4 30.09.2010 and hence the present writ petition. It is not in dispute that the subject matter of the suit and the sale deed pertain to the same land bearing Khata No. 1000 Plot No. 216 (old)/981(new) measuring 3 bighas 16 kathas and 6 dhurs situated in village- Bardaha Jagban, P.S.-Bisfi, District-Madhubani. Learned counsel for the petitioner submits that by virtue of execution of the sale deed dated 24.11.2008 by the vendor-defendant, the property stood transferred in favour of the petitioner and hence he is a necessary party to the suit. Learned counsel for the petitioner further submits that the law as to the right of the parties for being impeaded in suit proceedings stands well settled under the judgments of the Supreme Court and even while the discretion of the trial Court in these matters have been upheld by the Supreme Court, it has also been held that if a party would be able to show some semblance of interest in the suit property and not having any interest adverse to the vendor of the property he is vested with the right to be impleaded in the proceedings. Learned counsel for the petitioner in support of her contention aforesaid has relied upon a judgment of the Supreme Court reported in A.I.R. 2010 SC 3109 (Mumbai International Airport Pvt. Ltd. Versus Regency Convention Centre). Learned counsel with reference to paragraphs 8 to 10 of the judgment submits that the Supreme Court while considering its earlier decision rendered in the case of Kasturi Versus Iyyamperumal reported in (2005) 6 SCC 733 and the judgment rendered in the case of Sumatibai versus Paras Finance Co. reported in (2007)10 SCC 82, has held that a transferee of a property which is a 5 subject matter of contract in a suit for specific performance is a necessary party to a suit. Learned counsel thus submits that as there is no dispute that a sale deed has been executed in respect of the suit property by the vendor- defendant in favour of the present petitioner, hence the purchaser petitioner becomes a necessary party to the suit filed by the plaintiff- respondent seeking decree of specific performance. Mr. Dharmeshwar Mishra, learned counsel for the respondent contesting the claim of the petitioner submits that as the suit has been filed for a decree requiring specific performance of contract by the defendant in favour of the plaintiff by execution of the sale deed pursuant to the „Mahadanama‟ dated 13.03.2005, hence there lies no occasion for the petitioner to get impleaded in the suit proceedings. It is contended that whether or not the petitioner had notice of „Mahadanama‟ dated 13.03.2005 and/ or knowledge about the pendency of the suit proceedings, it would not change the position in law as emanating from Section 52 of the Act and the principles governing the doctrine of „lis pendens‟. Learned counsel contends that the petitioner cannot seek his remedy in a suit filed by the plaintiff seeking decree of specific performance of contract and that the petitioner is free to institute independent case for enforcing his rights. It is the contention of the learned counsel that the purchase made by the petitioner of the suit property even while the suit in question was pending adjudication, is void in view of the provisions of Section 52 of the Act and the petitioner would have to abide by the final outcome of the suit proceedings. It is contended that any purchase of suit property while a lis relatable to the 6 property in question is pending before a competent court of civil jurisdiction, would be at the risk and loss of the person entering into such purchase and absence of knowledge would not come to his rescue. Learned counsel in support of his contentions relied upon the following judgments: (i) (1995) 3 SCC 147 (Anil Kumar Singh Vs. Shiv Nath Mishra) (ii) (1996) 5 SCC 539 para 5 (Sarvinder Singh Vs. Dalip Singh) (iii) 2004(1) PLJR 66 (SC) paras 9 to 12 (Bibi Zubaida Khatoon Vs.Nabi Hassan Saheb & Anr.) (iv) 2006(4) PLJR 65 paras 3 and 4 (Ram Lochan Sharan Vs. Sri Balmukund Yadav & Ors.). Learned counsel with reference to the judgments aforesaid submits that the Courts have examined the right of the plaintiff to establish his case in a suit of specific performance and the right of a purchaser, to be impleaded in such suits on the basis of a sale pendente lite and it has been held that such transferees do not have an absolute right of being impleaded in such suit proceedings. It is submitted that the judgment relied upon by the learned counsel appearing for the petitioner does not digress from this settled position nor the statutory provisions underlying Section 52 of the Act. I have heard learned counsel for the parties and have perused the materials available on the records of the proceedings. 7 The only issue which falls for considerations is whether considering the nature of the suit and the reliefs prayed therein, the petitioner would be a necessary party to the suit. During the course of proceeding the petitioner has produced a photocopy of the sale deed dated 24.11.2008. The copy of the plaint was also placed on the record by the learned counsel appearing for the plaintiff-respondent. It is now well settled that an application filed by any party seeking to join in a suit proceeding, has to be tested in the backdrop of the reliefs prayed in the suit. The reliefs prayed by the plaintiff-respondent herein, in the suit runs as follows:- “19. That the plaintiff seeks the following R e l i e f s :- A) The court be pleased to pass decree for specific performance of contract in favour of the plaintiff. B) The court be pleased to order the defendant to execute the sale deed with respect to suit land in favour of plaintiff within a fixed period of time failing which the sale deed be executed in favour of plaintiff through the process of the court. C) The court be pleased to pass any other relief or reliefs for which the plaintiff be deemed entitled. D) Decree for cost be passed against the defendant.” From a perusal of the reliefs prayed in the plaint by the plaintiff- respondent herein it is manifest that the plaintiff has sought for a decree of specific performance by the vendor-defendant and for execution of a sale deed in respect of the suit property. The basis for the relief prayed, is a „Mahadanama‟ dated 13.03.2005. Admittedly, as on the date of execution of the „Mahadanama‟ on 13.03.2005, no sale had taken place 8 as regarding the suit property. In fact the petitioner himself admits to the execution of the sale deed on 24.11.2008 i.e. 3 years thereafter and after more than a year of the filing of the title suit on 27.02.2007. It is, by virtue the execution of the sale deed dated 24.11.2008 that the petitioner claims to have acquired interest in the suit property. But the question remains whether in view of the Mahadanama dated 13.03.2005 and even while the suit was pending for adjudication on the issue before the Civil Court, the vendor would be within his rights to execute the sale deed in question on 24.11.2008, in favour of the present petitioner and whether any interest in the suit property devolved on the petitioner in the light of the statutory provisions of Section 52 of the Act. Even in the judgment relied upon by the learned counsel appearing on behalf of the petitioner rendered in the case of Mumbai International Airport (supra), their Lordships of the Supreme Court after considering the facts and circumstances governing the case have held in paragraph 14 of the judgment that as the plaintiff had not sought for any relief against the appellant seeking impleadment in the suit nor his presence was necessary for passing an effective decree in a suit of specific performance hence he was not a necessary party. The Supreme Court in paragraph 12.2 of the said judgment has given an example of tenanted property which is a subject matter of a suit of specific performance for sale of property in question and has held that if the prayer made in the suit is only for a decree of specific performance then the tenant would not be a necessary party but the moment a prayer for delivery of possession is made in the suit, the tenant becomes a necessary party. 9 Their Lordships of the Supreme Court in the judgment (supra), have referred to an earlier judgment of the Supreme Court reported in (2005) 6 SCC 733 (Kasturi Versus Iyyamperumal & Ors.). Paragraphs 15 to 18 of the judgment rendered in the case of Kasturi (supra) is a complete answer to the issue posed. In paragraph 15 of the judgment, it has been held that by impleadment of transferees in a suit of specific performance, the nature of the suit changes from a suit of specific performance to a suit for title and possession and which is not permissible in law. In paragraph 16 of the judgment their Lordships while discussing the scope of Order 1 Rule 10(2) of the Code of Civil Procedure have held that a Court cannot allow adjudication of collateral matters so as to convert a suit of specific performance of contract for sale into a complicated suit for title between plaintiff-appellant on the one hand and the vendor purchaser on the other hand. Their Lordships further have held that if the addition of the parties would be allowed, it would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit of the specific performance, would have to be gone into. In paragraph 18 of the judgment it has been held that the plaintiff who filed the suit for specific performance of contract for sale is “dominus litis” and cannot be forced to add party unless it is a compulsion of the rule of law. Even in the said case their Lordships have gone on to held that the purchasers were not necessary party in a suit for specific performance. Considering the issue in the backdrop of the judicial pronouncement relied upon by the learned counsel for the petitioner and the learned counsel appearing for the sole respondent, it is manifest that 10 the focal point for adjudicating as to whether a party is a necessary party to a suit, depends upon the nature of the reliefs prayed in the suit. The reliefs prayed in the suit as quoted explicitly hereinabove, clearly shows that no relief whatsoever has been claimed against the petitioner and the suit is entirely directed against the sole defendant requiring him to perform the specific performance of contract for sale in the light of the „Mahadanama‟ dated 13.03.2005. The petition filed by the petitioner seeking impleadment in the suit proceedings inter alia on ground that the final adjudication in the suit proceedings may affect his right claimed on the basis of the sale deed dated 24.11.2008, cannot be a ground for impleadment in the present suit . The petitioner can take recourse to the remedies available to him under the civil laws of the land. For the reasons aforesaid, there is no merit in the writ petition and it is accordingly dismissed. There shall be no order as to costs. Bibhash (Jyoti Saran, J.)