1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R (1) S.B.Civil Writ Petition No. 2235/2007 (Mst. Koyalee Vs. State of Rajasthan & Ors.) (2) S.B.Civil Writ Petition No. 2236/2007 (Mst. Koyalee Vs. State of Rajasthan & Ors.) ......... Date of Order : 15/09/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. N.S.Acharya for the petitioner. Dr. Sachin Acharya } Mr. S.N.Bhatt } Mr. Vinay Jain } Mr. N.S.Rajpurohit} Mr. S.G.Ojha } for the respondents. Mr. A.K.Singh } BY THE COURT REPORTABLE Both these writ petitions involve common question of law and facts and between the same parties and therefore, with the consent of learned counsel for the parties, both the writ petitions are heard and decided together taking the facts of 2 SBCW No.2235/07 as leading case. The facts and circumstances giving rise to the instant writ petitions are that a suit for declaration of Khatedari rights in respect of land bearing Khasra No.83 measuring 2 bighas 5 biswas, Khasra No.104 measuring 18 bighas 17 biswas and Khasra No.108 measuring 11 bighas 8 biswas, total 32 bighas and 10 biswas, was filed by respondent No.3 Girdhari in the year 1983 before the Sub-Divisional Magistrate, Jodhpur. The said suit came to be dismissed on 10.08.1989 on the ground that the land in question has been recorded in the name of Bhaira and brother of the respondent Girdhari who was plaintiff before the SDO and Bhaira said to have expired living behind his legal representation Smt. Koyalee, the wife, who was not impleaded in the suit. Against the order of SDO dismissing the suit, an appeal was preferred before the Revenue Appellate Authority by respondent Girdhari. In the appeal the respondent UIT filed an application under Order 1 Rule 10 CPC as also under Order 41 Rule 27 CPC seeking impleadment and taking additional evidence on record. The respondent Revenue Appellate Authority allowed the appeal declaring the respondent Girdhari as Khatedar. The respondent UIT filed an appeal before the Board of Revenue, however, the Board of Revenue remanded the matter to the Revenue Appellate Authority to decide the application filed by the respondent UIT under Order 41 Rule 27 CPC and decide the 3 matter afresh. Before the Revenue Appellate Authority, the petitioner moved an application seeking impleadment and she was impleaded as party as also Hanuman ram, Dwarka Prasad and Vikram Singh were impleaded as party. However, the Revenue Appellate Authority allowed the appeal observing therein that petitioner Koyalee may pursue her remedy for her rights. The rights of petitioner Smt. Koyalee were not adjudicated. A review petition was filed by the petitioner as also an appeal before the Board of Revenue. The UIT also filed an appeal which was dismissed. The petitioner Koyalee withdrawn the appeal with liberty to raise all contentions before the Revenue Appellate Authority where her review petition was pending. Ultimately, the review petition came to be allowed and that order came to be challenged by the petitioner as also the respondent Girdhari before the Board of Revenue. During the pendency of proceeding before the Board of Revenue, subsequent purchaser of the land in dispute sought to implead as party in the proceeding before the Board of Revenue. In both the writ petitions, the persons sought to be impleaded are father and son. The Board of Revenue allowed the impleadment. Hence these writ petitions. I have heard learned counsel for the parties. Carefully gone through the record of the case. It is contended by learned counsel for the petitioner 4 that the land originally was recorded in the name of Bhaira Ram husband of the petitioner as Khatedar tenant and after death of Bhaira Ram the recorded tenant, the petitioner being the sole legal representative of deceased Bhaira Ram inherited the land by succession and the respondent No.3 Girdhari real brother of deceased Bhaira Ram filed a suit for declaration of khatedari rights knowing well that Bhaira Ram, recorded Khatedar has expired living behind sole legal heir Smt. Koyalee the petitioner and suit was rightly dismissed by the SDO. Thereafter the matter travelled up to Board of Revenue and still the matter is pending before the Board of Revenue. During the interregnum period, the land in question have been sold by the respondent Girdhari to various persons and in turn those purchasers further sold the land to other persons and the subsequent purchasers are seeking impleadment. According to learned counsel for the petitioner, such subsequent purchasers cannot be said to be either necessary party or proper party to the lis. Learned counsel for the petitioner has relied on decisions of Hon'ble Supreme Court in Sanjay Verma Vs. Manik Roy and Ors. AIR 2007 SC 1332, in Ravi Rao Gaikwad and Others Vs. Rajajinagar Youth Social Welfare Association and Others (2006) 5 SCC 62, in Sarvinder Singh Vs. Dalip Singh and Ors. 1997 (Suppl.) Civil Cout Cases, 50 (S.C.), in Sriram Industrial Enterprises Ltd. Vs. Mahak Singh and Others (2007) 4 SCC 94, in Hardeva Vs. Ismail 5 and Others AIR 1970 Rajasthan 167 Full Bench, in Rekha Vs. Hindu Seva Prathistana 2002 (2) Civil Court Cases, 678 (Karnataka), in Pranakrushna and Others Vs. Umakantga Panda and Others AIR 1989 Orissa, 148, in S.G.Kannappan Vs. S. Murugesan and Anr. 2002 (3) Civil Court Cases 666 (Madras) and in Smt. Madhu Ganeriwala Vs. Shiv Kumar 1998 (3) Civil Court Cases 712 (P&H). Learned counsel for the petitioner submits that during the pendency of any suit in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein except under the authority of the Court and on the terms as it may impose and if any transfer is made without permission of the Court, it is hit by doctrine of lis pendens. Dr. Sachin Acharya, learned counsel appearing for the respondents submits that subsequent purchaser to the property in question are necessary party and therefore, the respondent Board of Revenue was justified in impleading them as party respondent by the order impugned. Learned counsel for the respondents has relied on decisions of Hon'ble Supreme Court in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another (2005) 11 SCC, 403, in Dhanlakshmi and Others Vs. P. 6 Mohan and Others (2007) 10 SCC, 719, in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Grater Bombay and Others (1992) 2 SCC, 524. Lastly, it has been contended by learned counsel for the respondents that the scope of interference under Article 227 of the Constitution of India, exercising supervisory jurisdiction this Court has limited scope of interference. Learned counsel has relied on a decision of Hon'ble Supreme Court in Sadhana Lodh Vs. National Insurance Co. Ltd. AIR 2003 SC, 1561. I have given my thoughtful consideration to the rival submissions made by the counsel for the parties. In Sanjay Verma Vs. Manik Roy and Ors. (supra), the doctrine of lis pendens as also provisions of Order 1 Rule 10 CPC came to be considered by Hon'ble Supreme Court. The Hon'ble Supreme Court held that the principles specified in Section 52 of the T.P. Act are in accordance with equity, good conscience and justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the T.P. Act being a principle of public policy, no question of good faith or bonafide arises. The principle underlying Section 52 is that a litigating party is exempted from 7 taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The Section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court and while consideration the contention raised by the subsequent purchaser/ transferee that since they are not parties in the suit, their interest will get jeopardized, the Hon'ble Supreme Court held that it is a trite law that if a person is not a party to a suit, the decree does not affect him unless the judgment is in rem and not in personem. On these premises, the Hon'ble Supreme Court held that transferee pending suit for specific performance of agreement to sell cannot claim impleadment in view of doctrine of lis pendens. In Ravi Rao Gaikwad and Others Vs. Rajajinagar Youth Social Welfare Assn. and Others (Supra), the Hon'ble Supreme Court while considering the provisions of Order 1 Rule 8-A CPC observed as under :- “In the present case, undisputedly the writ petition filed by respondent 1 was dismissed. Additionally, its prayer for intervention in the writ petitions was not accepted. As the impugned order of the Division Bench goes to show, the learned Single Judge has been directed to consider the effect of certain orders 8 which were placed for consideration by the official respondents. As rightly submitted by learned counsel for the appellants, the question whether there was deemed grant of licence has to be considered on the basis of materials to be placed by the appellants and the official respondents. Respondent 1 cannot throw any light on this issue. Therefore, the Division Bench was not justified in permitting Respondent 1 to participate in the proceedings before the learned Single Judge. That part of the directions is set aside. The appeals are allowed to the abovesaid extent. No costs.” In Sarvinder Singh Vs. Dalip Singh and Ors. (supra), while considering the application under Order 1 Rule 10 CPC filed by subsequent purchaser/ transferee seeking impleadment in place of original defendant on the ground that they have purchased the disputed property during the pendency of the suit without leave of the Court, the Hon'ble Supreme Court held that such sale is hit by doctrine of lis pendens. Since the suit was merely for declaration of rights and therefore, the applicants therein were held to be improper party and the application for their impleadment was wrongly allowed. While considering the provision of Section 52 of the T.P. Act, the Hon'ble Supreme Court held that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. In that case, admittedly, the authority or order of the Court had 9 not been obtained for alienation of those properties and therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52 and under these circumstances, the respondents therein cannot be considered to be either necessary or property parties to the suit. In Sriram Industrial Enterprises Ltd. Vs. Mahak Singh and Others (supra), the Hon'ble Supreme Court while considering the scope of Judicial review/ interference under Articles 226 and 227 of the Constitution of India, held that in appropriate cases High Court in its writ jurisdiction can interfere with findings of fact and that its powers under Art. 227 are very wide enabling it to ensure that courts and tribunals inferior to it discharged their duties and obligations. In Hardeva Vs. Ismail and Others (Supra), Full Bench of this Court while considering the provisions of Order 1 Rule 10 CPC observed that it may be urged that the sale of a property by a vendor ordinarily involves a warranty of title and if the vendee loses in a case filed by a third party, he has a right to recover back the sale-price paid by him to the vendor and in this way the vendor is interested in the result of the suit. This is true. But this does not mean that a person who claims title in the property cannot file a suit for recovery of the property or for declaration of his right therein against the vendee. In spite of the fact that the vendor is interested in the result of the suit to the extent 10 that he may be liable to refund the amount of consideration received by him, it cannot be said that the person claiming the property as his own cannot recover it from the vendee on proving that the vendor had no right, title or interest in the property. The vendor may or may not be bound by the decree passed in such a suit, but the person who has filed the suit can recover back the property from the vendee. In America the proper procedure which may be adopted by the vendee in order that the vendor may be bound is that he may give notice of the suit to the vendor. On these premises, one Noora who sought to be impleaded as party was held to be not a necessary party to the suit for declaration that the half of the share in the field belonged to the plaintiff therein. A Division Bench of Orissa High Court in Pranakrushna and Others Vs. Umakanta Panda and Others (supra) while considering the provision of Section 52 of the Transfer of Property Act in a suit for declaration of title and permanent injunction as also considering the provisions of Order 1 Rule 10 (2) CPC, held that there is an apparent distinction between an alienation made in violation of the order of injunction and that without any such order. The person obtaining an order of injunction had got some additional advantage of prosecuting the offender and also getting his properties attached and sold as laid down under O.39 R. 2A of the Code. This would work out a 11 deterrent for his indulging in the act of violation of the order of injunction. The order of injunction does not in any way militate against the right, title and interest of the offender in the property in question like an order of attachment of the property which makes the property in custodia legis. While considering the question of addition of purchasers of property as parties during the pendency of suit, it was held that they are neither necessary nor proper party for adjudication of issues involved in suit. A similar view was taken by Madras High Court in S.G.Kannappan Vs. S. Murugesan and Anr. (supra) and Smt. Madhu Ganeriwala Vs. Shiv Kumar (supra) holding therein that in a case of sale of property to third party during pendency of the suit, the subsequent purchaser is neither a necessary nor proper party. Thus, from the decisions referred herein above, it is clear that during pendency of the suit, a transfer or alienation of property without leave of the Court is hit by the doctrine of lis pendens as envisaged under Section 52 of the Transfer of Property Act and the purchaser is bound by the decree between the original litigating party and subsequent purchaser of the property during pendency of the suit is neither a necessary nor proper party. In Amit Kumar Shaw and another Vs. Farida Khatoon and Another (supra) Hon'ble Supreme Court while considering the question as to whether an enforceable right of a person may 12 be affected if he is not joined as also effect of final decree passed in the suit transferring the property pendente lite, Hon'ble Supreme Court held that 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 a discretion to make him a party. But the transferee pendente 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 pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where 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 22 Rule 10 an alienee pendente lite may be joined as party. However, the power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will necessarily include an enforceable legal right. A transferee pendente 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 13 the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. In Dhanlakshmi and Others Vs. P. Mohan and Others (supra), Hon'ble Supreme Court while considering the question of necessary and proper parties, held that transferees-in-interest of other co-owner acquiring interest during pendency of partition suit filed by co-owner, are necessary and proper parties in a partition suit filed by co-owner. In Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others (supra), Hon'ble Supreme Court while considering Order 1 Rule 10 (2) CPC in a suit relating to property and not for declaration of status or legal character, held that a person seeking impleadment must have direct or legal interest in the litigation in a suit by dealer in possession of a service station under an agreement with lessee thereof challenging validity of a notice issued by Municipal Corporation for demolition of certain structures raised by it on the premises as being unauthorised, held that lessee is not a necessary or proper party and addition of lessee would enlarge the issue of the suit. On these premises, Hon'ble Supreme Court held that the Court cannot direct the plaintiff dealer to add the lessee as defendant in the suit. In Sadhana Lodh Vs. National Insurance Co. Ltd. 14 (supra), Hon'ble Supreme Court while considering the scope of Article 227 of the Constitution of India, held that the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Art. 227 of the Constitution, the High Court does not act as an Appellate court or the Tribunal. It is also not permissible to a High Court on a petition filed under Art. 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision. Though so far as the scope of interference under Article 227 of the Constitution of India exercising the supervisory jurisdiction is limited, however, as has been held by Hon'ble Supreme Court in Sriram Industrial Enterprises Ltd. Vs. Mahak Singh (supra), that in appropriate cases, High Court in its writ jurisdiction can interfere with findings of fact and that its powers under Art. 227 are very wide enabling it to ensure that courts and tribunals inferior to it discharged their duties and obligations. Thus, while exercising supervisory jurisdiction under Article 227 of the Constitution of India, it cannot be said that where the courts and tribunals inferior to High Court when act 15 contrary to provisions, the High Court cannot interfere. The Court may interfere in appropriate cases. In the instant case, from the factual background noticed herein above, it appears that originally the land in dispute was recorded in the name of petitioner's husband Bhaira and after death of Bhaira, his brother Girdhari knowing it well that his brother Bhaira's wife the petitioner herein is alive and being the sole legal heir, without impleading her, filed a suit seeking declaration of Khatedari rights and thereafter she has been litigating being sole legal heir of the recorded Khatedar. The sequence of proceedings as noticed above clearly go to show that despite the pendency of the suit and the suit property being prohibited from being alienation or transfer during pendency of the suit, yet the respondent Girdhari went on transferring the land and thereafter the subsequent purchasers went on transferring the land making it joining various persons at every stage of proceeding not allowing the matter to proceed except by way of application seeking impleadment and joining of parties. In my view, keeping in view the decision of Hon'ble Supreme Court in Sanjay Verma Vs. Manik Roy and Ors. (supra) such transfer is hit by doctrine of lis pendens and therefore, the respondent Board of Revenue was not justified in impleading such subsequent transferees as party respondents and therefore, both the writ petitions deserve to be allowed. 16 In view of the aforesaid discussion, both the writ petitions are allowed. The orders impugned dated 31.05.2006 and 07.03.2007 in both the writ petition are set aside. The respondent Board of Revenue is directed to hear and decide the appeals pending before it utmost expeditiously. There shall be no order as to costs. Stay petitions also stand disposed of. (H.R.PANWAR), J. rp