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IN THE HIGH COURT OF JUDICATURE AT PATNA
MOHIT KUMAR SHAH, J.
Pushpa Drolia wife of Rajendra Drolia – Appellant
Versus
Sohrai Mahton S/o late Ramautar Mahton
Civil Writ Jurisdiction Case No.9470 of 2015
Decided on : 14-08-2020
Civil Procedure Code, 1908 – Order 22 Rule 10 – Impleadment of necessary party in partition suit – No period of limitation is prescribed under Order 22 Rule 10 of Code of Civil Procedure, 1908 inasmuch as right to apply under said rule is a continuous right and application can thereafter be made at any stage till proceedings are pending – Till passing of final decree, partition suit is said to be pending as also unless partition of suit property is effected by metes and bounds and allottees of shares are put in possession of their respective property, partition is not complete and preliminary decree which determines shares, does not bring about final partition. (Para 23)
Transfer of Property Act, 1882 – Section 52 – Civil Procedure Code, 1908 – Order 1 Rule 10 and Order 22 Rule 10 – Impleadment of necessary party in partition suit – Petitioners are transferee pendente lite – Courts are not supposed to encourage pendente lite transactions and regularise their conduct by showing equity in their favour at the cost of co-sharers – During pendency of any suit regarding title of a property, any new interest in respect of that property should not be created – Principle of Lis Pendens does not annual conveyance, but only renders it subservient to rights of parties to litigation – Transferee will be bound by result of suit or proceeding whether or not he had notice of suit or proceeding – A transferee pendente lite cannot claim his addition in pending suit as of right, though Court has a discretion to make him a party, he can be added as a proper party only if his interest in subject matter of suit is substantial and not just peripheral – Impleadment of a stranger in partition suit must be for substantial cause and a purchaser pendente lite if impleaded in a partition suit has a very limited right – Limited right of a purchaser pendente lite of first purchaser from a co-sharer to get equity worked out in his favour, gets exhausted with his impleadment in suit and a further alienation of same right by purchaser or purchaser pendente lite does not create a fresh equity or revive same right in second purchaser – Petitioners are not purchasers from a co-sharer and if at all they have any right, it is only against their vendors who are parties in suit – Writ petition dismissed. (Paras 27, 28, 29 and 30)
JUDGMENT :
The present writ petition has been filed challenging the order dated 30.4.2015 passed by the learned Sub-Judge II, Patna City in Title Suit No. 416 of 1985 whereby and whereunder the application filed by the interveners-petitioners herein under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure, 1908, for being impleaded as party to the said suit has been dismissed.
2. The brief facts of the case are that the plaintiffs-respondents herein filed a title suit bearing Title Suit No. 416 of 1985 against the defendants-respondents herein seeking the following reliefs:-
(b) That separate takhta of the plaintiffs be carved out by appointment of advocate commissioner and final decree be accordingly prepared and the plaintiffs be put in khas possession.
(c) For cost of the suit.
(d) For any other relief(s) for which the plaintiffs are found to be entitled.”
3. The description of the land in question has been given in Schedule A to the plaint as Khata no. 631, C.S. Plot No. 1456, M.S. Plot No. 1241, Ward No. 18 (old), 24 (new), Sheet No. 147, ad-measuring 10 kathas, situated at Mauza Sandalpur, P.S.-Alamganj, District-Patna-7.
4. It has been stated in the writ petition that the plaintiffs/respondents and main defendants/respondents belong to the branches of two brothers namely Late Ramcharan Mahton and Late Beni Mahton both sons of Late Tikam Mahton. The suit property belonged to daughter of Late Tikam Mahton namely Balkesia who was murdered in 1952 and was issueless. In fact husband of Balkesia, who predeceased her, gifted the suit property to her vide registered deed of gift dated 18.12.1928. After her death the two brothers of Balkesia, namely Late Ramcharan Mahton and Late Beni Mahton, fought tooth and nail for the suit property with Ram Chandra Mahton, Ram Das Mahton, Tuntun Mahton, Sheonath Mahton and Ram Prasad Mahton who claimed to be reversioners of Late Balkesia. Ultimately the matter travelled to this Hon’ble Court in Second Appeal No. 1891 of 1955. Then good sense prevailed on the parties and the dispute culminated into a compromise decree passed on 22.07.1958 in Second Appeal No. 1891 of 1955 by this Hon’ble court according to which the branches of two brothers namely Late Ramcharan Mahton and Late Beni Mahton were given 8 annas share each of the suit property. Subsequently wife of Late Ramcharan Mahton namely Quadri Devi fraudulently executed some sale deeds in favour of different persons (defendants/respondents) with respect to more land than what had actually fallen in the share of Late Ramcharan Mahton. Therefore the plaintiffs/respondents were forced to file title suit bearing T.S. No. 416 of 1985.
5. It is further stated that in the title suit bearing Title Suit No. 416 of 1985, the plaintiffs/respondents very cleverly suppressed the subsequent agreement dated 10.9.1958 entered into between Late Ramcharan Mahton and Late Beni Mahton by virtue of which the entire half share of total land measuring 8 Kathas, 6 Dhurs, which fell in equal share of the two brothers namely Late Ramcharan Mahton and Late Beni Mahton as per the decree passed on 22.7.1958 in Second Appeal No. 1891 of 1955, was relinquished by Late Beni Mahton in favour of his brother Late Ramcharan Mahton in lieu of cost of litigation and Rs. 100/- paid by Late Ramcharan Mahton.
6. It is further stated that after the death of Quadri Devi (wife of Late Ramcharan Mahton) in the year 1985, the agreement dated 10.9.1958 somehow came in possession of the plaintiffs/respondents who chose to file T. S. No. 416 of 1985 for half share of the suit property by suppressing the said agreement and misrepresenting facts. In fact, the son of Late Ramcharan Mahton namely Rameshwar Mahton had also died earlier leaving behind his wife and two minor children who were vulnerable target for the plaintiffs/respondents. The plaintiffs/respondents had in fact never tried to
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