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2009 Supreme(Cal) 307
JYOTIRMAY BHATTACHARYA, J.
Arun Bhusan Guha & Ors. – Appellant
Vs.
Amal Roy &Anr. - Respondent
C.O. No. 4633 of 2006
Decided on :- 17-4-2009
Probal Mukherjee, Suhrid Sur, for Petitioner; Jiban Ratan Chatterjee, for Respondent.
The vendor has a legal and moral obligation to protect the title and/or possession of the property in question until registration of the deed of transfer is completed so that on completion of such registration, the purchaser can enjoy the fruits of such transfer with retrospective effect from the date of execution of the deed of sale.
Headnote:
CIVIL PROCEDURE - ORDER 1 RULE 10(2) - Impleadment of Co-plaintiff - Limitation - Registration of Sale Deed - Completion of Registration - Title of Purchaser - Relation Back - Interregnum Period - Vendor's Duty to Protect Title and Possession - Maintainability of Suit - Addition of Co-plaintiff during Pendency of Suit.
Fact of the Case:
Plaintiff filed a suit for declaration of absolute ownership and permanent injunction against defendants. During the pendency of the suit, the plaintiff sold the suit property to the opposite party No. 2 by a registered deed of conveyance dated 14th November, 2002. The registration of the deed was completed in March 2006 due to non-payment of deficit stamp duty. The opposite party No. 2 filed an application under Order 1, Rule 10(2) of the Code of Civil Procedure for her addition as co-plaintiff in the suit. The defendants opposed the application contending that the suit was not maintainable as the plaintiff had no title in the suit property as on the date of filing of the suit and that the suit was barred by limitation as the cause of action arose on 18th September, 2003 and the application for addition of party was filed in 2006.
Finding of the Court:
1. The suit is maintainable at the instance of the plaintiff as he had the right to project himself as the owner of the suit property before the learned trial Judge as on the date of presentation of the plaint. 2. The opposite party No. 2 became the owner of the suit property upon completion of registration of the sale deed during the pendency of the suit, and her title related back to the date of execution of the deed. 3. The learned Trial Judge did not commit any illegality by impleading the opposite party No. 2 as co-plaintiff in the said suit. 4. The issue of limitation is a mixed question of law and fact and will be decided by the learned trial Judge on its own merit after taking evidence of the parties in the suit.
Issues: 1. Whether the suit is maintainable at the instance of the plaintiff who had no title in the suit property as on the date of filing of the suit? 2. Whether the suit is barred by limitation as the cause of action arose on 18th September, 2003 and the application for addition of party was filed in 2006? 3. Whether the opposite party No. 2 can be added as co-plaintiff in the suit after the completion of registration of the sale deed during the pendency of the suit?
Ratio Decidendi: 1. So long as the registration of a sale deed is not completed, the purchaser cannot project himself as the owner of the property in question, though his title will relate back to the date of execution of the said deed immediately on completion of registration of the said document. 2. The vendor has a legal and moral obligation to protect the title and/or possession of the property in question until registration of the deed of transfer is completed so that on completion of such registration, the purchaser can enjoy the fruits of such transfer with retrospective effect from the date of execution of the deed of sale. 3. The opposite party No. 2 became the owner of the suit property upon completion of registration of the sale deed during the pendency of the suit, and her title related back to the date of execution of the deed. 4. The learned Trial Judge did not commit any illegality by impleading the opposite party No. 2 as co-plaintiff in the said suit. 5. The issue of limitation is a mixed question of law and fact and will be decided by the learned trial Judge on its own merit after taking evidence of the parties in the suit.
Final Decision: The revisional application is dismissed. The findings on the maintainability of the suit due to bar of limitation are tentative and the learned trial Judge will decide the issue on its own merit after taking evidence of the parties in the suit.
This application under Article 227 of the Constitution of India is directed against an order being No. 87 dated 16th November, 2006 by which the opposite party No. 2 was added as co-plaintiff in the suit. By the said order, the defendants' application under Section 151 of the Code of Civil Procedure for dismissal of the suit and/or for rejection of the plaintiffs application for temporary injunction, was also rejected by the learned trial Judge.
2. The propriety of the said order is under challenge in this revisional application at the instance of the defendants/petitioners herein.
3. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. .
4. The opposite party No.1 /plaintiff filed a suit for declaration of his absolute ownership in the suit property. A decree for permanent injunction for restraining the defendants from taking any water connection underneath the suit premises and also from disturbing the possession of the plaintiff therein, was sought for.
5. The defendant is contesting the said by filing written statement denying the allegations made out by the plaintiff in the plaint.
6. An ad interim order of injunction was also passed in favour of the opposite party No. l/plaintiff herein on his application under Order 39, Rules 1 and 2 of the Code of Civil Procedure.
7. In both the plaint as well as in the application for temporary injunction, the opposite party No. 1 /plaintiff claimed his absolute title in the suit property. The plaintiff filed the said suit on the basis of the cause of action which allegedly had arisen firstly on 18th September, 2003 and interim injunction was sought for therein on the basis of said cause of action. In fact, ad interim order of injunction was passed in the said suit on the-basis of the plaintiffs claim for title in the suit property.
8. Long thereafter, an application under Order 1, Rule 10(2) of the Code of Civil Procedure was filed by the opposite party No.2 inter alia praying for her addition as co. plaintiff in the said suit. The said application was filed on 21st July, 2006. It was stated in the said application that the opposite party No. 1/ sole plaintiff sold and transferred the suit property in her favour by a registered deed of conveyance dated 14th November, 2002. It was further stated therein that though the said deed of conveyance was executed on 14th November, 2002 but the registration of the said deed was kept in abeyance till 29th March. 2006 for non-payment of the deficit stamp duty on the said deed of conveyance. Thus, ultimately on payment of the deficit stamp duty, registration of the said deed was completed and the said deed of conveyance was entered into book No.1 volume No. 166 being No. 02129 pages 98 to 126 for the year 2006. Thus, the opposite party No.2 claimed that she has now become the owner of the suit property by virtue of such transfer, made by the opposite party No. 1 /plaintiff in her favour. The opposite party No.2, thus, prayed for her addition in the said suit as co-plaintiff on the basis of her aforesaid claim for title in the suit property.
9. The opposite party No. 1 /plaintiff did not oppose such prayer of the said opposite party No.2. The defendant/petitioner, however, contested such prayer of the opposite party No.2 by filing objection. It was stated by the petitioner therein that the opposite party No.2 is not a pendente lite transferee as she purchased the suit property from the plaintiff by deed of conveyance dated 14th November, 2002. It was further stated therein that since the cause of action of the said suit arose on 18th September, 2003 and the suit having been filed on 24th September, 2003, she cannot be added as plaintiff in the suit in 2006 as on the date when she applied for her addition as party in the said suit, the reliefs claimed in the suit so far as she is concerned, became barred by limitation.
10. The defendants/petitioners also filed an app
