The transferee pendente lite without leave of the court cannot be impleaded as a party in all cases.

1. Defect Nos. 3 and 4 as pointed out by the Stamp Report are ignored.

2. Heard, Mr. Jitendra Kishore Verma, learned counsel for the appellants-petitioners as well as Mr. Arun Kumar Rai, learned counsel for the respondent-opposite party No. 1.

3. The petitioners are aggrieved by the order dated 26.11.2008 passed by the Additional District Judge, F.T.C.-II, Saran at Chapra in Title Appeal No. 4 of 1986 whereby a petition under Order I, Rule 10 C.P.C. for impleading the purchaser from the respondent opposite party No. 1 as a party respondent in the appeal has been refused by the lower appellate court.

4. Learned counsel for the petitioners submits that though the transaction is of the period of the pendency of the appeal without taking any leave from the court concerned, still the purchaser should have been impleaded as a party in this appeal to avoid the multiplicity of the proceedings. In support of his submissions, he has relied upon a decision of Apex Court in Amit Kumar Shaw and Another V/s. Farida Khatoon and Another reported in AIR 2005 Supreme Court 2209 wherein substitution of purchaser on account of sale in place of vendor was permitted by the Apex Court.

5. The trial court on consideration of the rival submissions has come to the conclusion that the transaction concerned is hit by the principle of lis pendens as without taking leave of the court of the aforesaid transaction has been done and as such, the transferer and transferee has taken a risk. It has come to the conclusion that the purchasers are not the necessary party for deciding the lis between the parties and thus, has rejected the prayer. In this connection, a decision of Apex Court in Bibi Zubaida Khatoon V/s. Nabi Hassan Saheb & Anr. reported in 2004(1) PLJR (SC) 66, wherein it has been held that transferee pendente lite without taking leave of the court cannot be impleaded as a party in all cases. Relevant passages of the aforesaid decision of the Supreme Court is as under:

"10. The decisions cited and relied on behalf of the appellant turned on the facts of each of those cases. They are distinguishable. 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. The decision relied on behalf of the contesting respondents of this court in the case of Savinder Singh (supra) fully supports them in their contentions. After quoting Section 52 of the Transfer of Property Act, the relevant observations are thus: "Section 52 of the Transfer of Property Act envisages that: 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.

It would, therefore, be clear 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. Admittedly, the authority or order of the court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit".

11. In case of Dhurandhar Prasad Singh (supra), observations relevant for the purpose of these appeals read thus: "Where a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, yet he will be bound by the result of the litigation e