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2010 Supreme(UK) 371
2010 (2) UAD 869
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice V.K. Bist
Writ Petition No. 744 of 2007 (M/S)
RAJEEV BERRY – Petitioner
Versus
ADDL. DISTRICT JUDGE & ORS. – Respondents
Decided on : 25.06.2010
For the Petitioner:Mr. Ramji Srivastava, Advocate
For the Respondent Nos. 1 & 2: Mr. Sudhir Kumar, Brief Holder
For the Respondent No. 3: Mr. M.M. Lamba with Mr. Neeraj Garg, Advs.
Headnote:Civil Procedure Code, 1908, Or. 1, R. 1, Or. 22, R. 10, Transfer of Property Act, 1882, Sec. 52 — Sale deed — Maintainability of — Doctrine of lispendens — Transfer of property prohibited during proceedings of suit — In the present case, civil suit was pending between respondent no. 5 and respondent no. 3 — There was also order of status quo passed on the application of respondent no. 5 — The property in question was sold by the respondent no. 5 to the petitioner — And he was fully conversant that status quo order was in existence — In such circumstances, no sale deed could have been executed by the respondent no. 5 during the pendency of suit. (Paras 10 to 14)
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Present petition has been filed by the petitioner challenging the order dated 13.04.2007 (annexure no. 7), passed by Civil Judge (Sr. Div.), Dehradun as well as the judgment and order dated 31.05.2007 (annexure no. 9) passed by Addl. District Judge/1st F.T.C., Dehradun.
2. Concisely, the facts of the case are that the respondent no. 5, namely, Smt. Radhika Sarin was the owner and in possession by virtue of sale deed dated 30.03.2000 over 0.26 acres of land of Khasra No. 512M., situated at Mauja Dhakpatti, Pargana-Kendriyadoon, District Dehradun. As the respondent nos. 3 & 4 in the Court of Civil Judge (Sr. Div.). Dehradun seeking permanent injunction restraining them from interfering in her peaceful possession and ownership over the land in dispute. Notices were issued to the defendants by the Trial Court and after filing the written statement of respondent no. 4, the Trial Court vide order dated 08.05.2003, directed the parties to maintain status-quo over the land in question. The respondent no. 3 also turned up before the Trial Court and filed his written statement with the counter claim to pass mandatory injunction for demolition of the wall constructed by respondent no. 5. It is asserted in the petition that during pendency of said suit, the petitioner purchased the land in question from respondent no. 5 & one Varun Sarin vide sale deed dated 27.12.2005 and the interest of petitioner became involved in the said suit. Accordingly, on 04.04.2007, the petitioner moved an application (paper no. 98c-2) under Order XXII Rule 10 read with Order 1 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as the C.P.C.) before the Trial Court with the prayer seeking permission of his impleadment as plaintiff in the above suit. Against which, the respondent nos. 3 & 4 filed their objection (paper no. 100c-2). On 13.04.2007, the Trial Court rejected the application (paper no. 98c-2). Aggrieved with the order dated 13.04.2007 passed by the Trial Court, the petitioner preferred Misc. Appeal no. 46 of 2007 ‘Rajeev Berry vs. Rajesh Kumar Srivastava and others’ before the District Judge, Dehradun. Said Misc. Appeal was lateron transferred to the Court of Addl. District Judge, Dehradun who vide judgment and order dated 31.05.2007 also dismissed the appeal preferred by the petitioner. Hence this petition.
3. A counter affidavit has been filed on behalf of respondent no. 3 by his attorney holder, in which ownership of respondent no. 5 in respect of the land in question has been denied with the assertion that the respondent no. 3 is the lawful owner in possession of the property in question. It is further stated that no sale deed could have been executed by any parties during the pendency of the suit, and such sale, if any, is hit by doctrine of lis-pendens. It is further asserted that the learned Civil Judge vide its order dated 13.04.2007 rejecting the application for impleadment of the petitioner, held that application was not legally maintainable, the petitioner was neither necessary nor the party by virtue of Section 52 of Transfer of Property Act. Lastly, it is stated that the orders of Courts below are justified and reasonable and the writ petition deserves to be dismissed.
4. I have heard Mr. Ram Ji Srivastava, Advocate for the petitioner, Mr. Sudhir Kumar, Brief Holder for the State/respondent nos. 1 & 2, Mr. M.M. Lamba with Mr. Neeraj Garg, Advocates for respondent no. 3 and perused the record.
5. The Trial Court vide order dated 13.04.2007 while rejecting the application (paper No. 98c-2) has observed that the applicant/petitioner has moved the application just to obscure the subject matter in the suit which is nothing but merely the delaying tactics adopted by the applicant. The Trial Court has further observed that the sale of land in question executed by respondent no. 5 in favour of petitioner is not bonafide and the sale deed was executed without permission of the Court. Similarly, the learned Addl. Distric
