IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE TWENTY NINTH (29TH) DAY OF JUNE, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.1224 of 2011 Between: Gotte Madhusudhan … Petitioner And: Gotte Sanjeevaiah @ Sanjeev & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.1224 of 2011 ORDER: This revision petition is directed against the order dated 17.02.2011 in IA No.383 of 2010 in AS No.1 of 2010 on the file of the Senior Civil Judge, Sircilla, wherein, the said application filed by the petitioner herein under Order I Rule 10 CPC to get impleaded as 3rd respondent in the appeal, was dismissed. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the record. 3. The 5th respondent herein-plaintiff filed suit partition. A preliminary decree was passed on 29.01.2010 declaring that the plaintiff was entitled for half share in the plaint schedule property. The petitioner herein claims that he purchased the said half share of the plaintiff on 07.04.2010 subsequent to passing of the preliminary decree. The first respondent and other defendants filed appeal in AS No.1 of 2011 challenging the preliminary decree. The said appeal is pending. The petitioner filed IA No.383 of 2010 under Order I Rule 10 CPC seeking to come on record as alienee of the un-divided half share of the plaintiff. The appellants filed counter, opposing the petition. After hearing both sides, the learned Senior Civil Judge, Sircilla, dismissed the application on the ground that he is neither proper nor necessary party, as he admittedly purchased the share of the plaintiff with full knowledge of the preliminary decree, following the decision of this Court in ‘Rukya Bee v. Syed Afzal’ (2005 ALT (4) 465) and the decision of the Apex Court in ‘Bibi Zubiada Khatoon v. Nabi Hassan Sahed’ (AIR 2004 SC 173). Aggrieved by the same, the present revision is filed by the proposed third party. 4. In ‘Bibi Zubiada Khatoon v. Nabi Hassan Sahed[1]’, the apex Court held as follows: “It is not disputed that the present petitioner purchased the property during pendency of the suit and without seeking leave of the court as required by section 52 of the Transfer of Property Act. The petitioner being a transferee pendente lite without leave of the court cannot, as of right, seek impleadment as a party in the suits which are long pending since 1983. It is true that when the application for joinder based on transfer pendente lite is made, the transferee should ordinarily be joined as party to enable him to protect his interest.” 5. It was further held that ‘there is no absolute rule that the transferee pendente- lite without leave of the court should in all cases be allowed to join and contest the pending suits.’ 6. Section 52 of the Transfer of Property Act states as follows: 'During the pendency in any court having authority within the limits of India ..... of any suit or proceeding which is not collusive and 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 such terms as it may impose.' 7. A plain reading of the above provision contained in section 52 of the Transfer of Property Act would disclose that the alienation of the property, which is subject matter of the suit, affecting the rights of the parties is prohibited, except under the authority of the Court. In the present case, admittedly, the petitioner has not obtained permission of the Court before he purchased the un-divided half share of the plaintiff, even though, he was aware of passing of the preliminary decree, which is subject matter of the appeal. Learned counsel for the petitioner invites attention to the observation in the above decision of the apex Court, wherein it was observed that application for joinder based on transfer pendente lite is made transferee should ordinarily be joined as party to enable him to protect his interest. But it was also observed by the apex Court in the above decision, that there is no absolute rule that the transferee pendente lite without leave of the court should in all cases be allowed to join and contest the pending suits. 8. In the above case, it was further held that ‘admittedly, the authority or order of the court had 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 the respondents cannot be considered to be either necessary or proper parties to the suit.’ 9. In the above decision, a reference was made to the decision in ‘Dhurandhar Prasad Singh v. Jai Prakash University[2]’, wherein it was held as follows: "Where a party does not ask for leave, he takes the obvious risk that the suit may not be property conducted by the plaintiff on record, yet he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary." 10. In ‘Rukya Bee vs. Syed Afzal[3]’ relied upon by the learned counsel for the respondents and referred to in the impugned order the suit for partition was filed in December 1991 and the alienation by respondents 2 to 4 in favour of first respondent took place in August 1991 prior to filing of the suit. A preliminary decree was passed on 19.07.1995, which attained finality with the dismissal of the first appeal and also second appeal. Thereafter, an application was filed by the plaintiffs for passing final decree, the first respondent therein filed an application under Order I Rule 10 CPC seeking to come on record on the ground that he purchased the entire schedule property on 20.08.1991 from respondents 2 to 5 even prior to filing of the suit. He contended that the suit was filed in collusion with the vendor with a view to defeat the alienation. The trial Court allowed the application filed under Order I Rule 10 CPC. While disposing the revision, this court directed that it shall not be open to the first respondent therein to canvass the correctness of the preliminary decree to the extent of the share of the petitioners therein and that it shall be open to him to enforce his rights in that regard, by filing a separate suit. It was further held that ‘the parties or persons claiming through them have to abide by the terms of the preliminary decree and if any third party is aggrieved by the preliminary decree in any manner, the only course open to him is to file an independent suit and to put forth his contentions.’ The doctrine of lis pendens under Section 52 of the Transfer of Property Act was not applied in the above case, as the purchase was prior to filing of the suit. 11. In the present case, as the alienation in favour of the petitioner is subsequent to passing of the preliminary decree, which is appealed against and the appeal being continuation of the original suit, the doctrine of lis pendens enshrined in Section 52 of the Transfer of Property Act comes in to operation and the petitioner cannot seek to come on record, as a matter of right, as the alienation in his favour was not with the lave of the court or under the authority of the Court. 12. Learned counsel for the petitioner would submit that as his vendor-plaintiff was old woman, aged 97 years, the petitioner seeks to come on record so as to assist her in the proceedings. The fact that the plaintiff-vendor of the petitioner is an old woman does not afford an exception to the operation of the doctrine of lis pendens and does not enable the petitioner to come on record when the alienation is hit by the said doctrine. As rightly observed by the trial Court, the petitioner cannot have better rights than what the vendor was having and even in his absence the appeal can be decided. 13. In the circumstances, the impugned order dismissing the application holding that the petitioner is neither proper nor necessary party to the appeal does not call for any interference by this court. 14. In the result, the civil revision petition is dismissed. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 29.06.2011 bss [1] AIR 2004 SC 173 [2] AIR 2001 SC 2552 [3] 2005 ALT (4) 465