IMPORTANT POINT
The court ruled that transferees pendente lite are necessary parties in a partition suit for effective adjudication, subject to the outcome of the suit.

ORDER :

1. Though the matter was listed in the 'Fresh' category, on the joint request of both the parties, the matter is heard today itself.

2. This writ petition has been filed by the petitioners/plaintiffs under Article 226 and 227 of the Constitution of India challenging the order dated 16.04.2024 passed by learned Additional District and Session Judge No. 3, Jodhpur in Civil Original Suit No. 162/2022, whereby the application filed by the petitioner under Order I Rule 10 of the Code of Civil Procedure, 1908.

3. The writ petition has been preferred with the following prayers:-

“(i) It is therefore, most humbly prayed that this writ petition may kindly be allowed and the order dated 16.04.2024 (Annexure-1) passed by Additional district and Session Judge, Jodhpur may kindly be declared illegal and the same may be quashed and set aside.

(ii) That subsequent purcharers may be impleaded as party respondent in Civil suit no 162/2022 (Rajendra Kumar Sharma v/s Rameshwari Sharma & Ors) for effectually and completely adjudication of the suit.

(iii) Any other order or direction that may be deemed fit, just and proper may kindly be issued in favour of the petitioner.

(iv) Costs may kindly be also awarded.”

4. Briefly stated, the facts of the case are that the petitioner- plaintiff filed a suit (Annex.2) for partition and permanent injunction for his share in the ancestral property and to restrain the parties from alienating the said property. In response to the said suit, the respondents no. 1 to 5 (hereinafter as ‘the respondents/defendants’) filed their written statement (Annex. 3). Subsequently, the learned Trial Court vide order dated 07.07.2022, dismissed the injunction application filed by the petitioner-plaintiff.

5. In the meanwhile, the respondent/defendants sold the entire property in two parts to Smt. Firoza Bano and Mr. Abdul Rahuf Khan (hereinafter as ‘the transferees pendente lite’) vide registered sale deeds dated 06.01.2023 (Annex.5) and thus the petitioner/plaintiff filed an application (Annex.4) under Order I Rule 10 of the Code of Civil Procedure, 1908 (hereinafter as ‘CPC’) to implead the transferees pendente lite. Also, the petitioner/plaintiff filed an application for temporary injunction, which came to be rejected by the learned Trial Court.

6. Subsequently, the application filed by the petitioner/plaintiff under Order I Rule 10 of CPC was also rejected by the learned Trial Court vide order dated 16.04.2024 (Annex.1) and thus, aggrieved by the order dated 16.04.2024 (Annex.1), the petitioner/plaintiff has preferred this writ petition.

7. Learned counsel for the petitioner-plaintiff submitted that the learned Trial Court has erred in rejecting the application under Order I Rule 10 inasmuch as, by virtue of the registered sale deeds dated 06.01.2023 (Annex.5), interest in the disputed property had been vested upon Smt. Firoza and Mr. Abdul Rahuf Khan and thus, they have become a necessary party to the suit, and therefore, they deserve to be impleaded to the suit for proper and effective adjudication of the issues involved in the suit.

8. Learned counsel for the petitioner-plaintiff also submitted that the instant suit is for partition of the disputed property and during pendency of the suit, the disputed property has been alienated and if the subsequent purchaser is not impleaded, then it will call for a separate suit to enforce the right of the petitioner-plaintiff, which will result in multiplicity of proceedings and thus, the subsequent purchasers should be impleaded to the suit.

9. Learned counsel for the petitioner/plaintiff further submitted that the respondent/defendants have acted against the statutory mandate of Section 52 of the Transfer of Property Act, 1882 ('Act of 1882'), inasmuch as they have sold the disputed property during the pendency of litigation, thus creating rights of the third party, i.e. Smt. Firoza and Mr. Abdul Rahuf on the property pending lis. He also placed reliance upon the following judgments: