IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL th ON THE 19 OF JULY, 2023 MISC. PETITION No. 3956 of 2023 BETWEEN:-

1. GANGA PRASAD KURARIYA ( SINCE DEAD)

THROUGH LRS SATIS KURARIYA S/O GANGA PRASAD KURARIYA R/O H NO 232 SANJEEVANI NAGAR KURARIYA MARKET GARHA JABALPUR (MADHYA PRADESH)

2. ASHISH KURARIYA S/O LATE GANGA PRASAD KURARIYA, AGED ABOUT 46 YEARS, R/O H.NO. 232 SANJEEVANI NAGAR KURAIYA MARKET GARHA JABALPUR (MADHYA PRADESH)

3. MANISH KURAIYA S/O LATE GANGA PRASAD KURARIYA, AGED ABOUT 44 YEARS, R/O H.NO. 232 SANJEEVANI NAGAR KURAIYA MARKET GARHA JABALPUR (MADHYA PRADESH)

4. GIRISH KURARIYA S/O LATE GANGA PRASAD KURARIYA, AGED ABOUT 40 YEARS, R/O H.NO. 232 SANJEEVANI NAGAR KURAIYA MARKET GARHA JABALPUR (MADHYA PRADESH)

.....PETITIONERS (BY SHRI MANOJ SANGHI - ADVOCATE)

AND

1. SMT SIYA BAI ( SINCE DEAD) W/O BHAGWAN SINGH PATEL THROUGH LRS BHAGWAN SINGH PATEL BALKISHAN PATEL ( SINCE DEAD) THRUGH LRS RAGHUNATH SINGH PATEL S/O LATE BALKISHAN PATEL, AGED ABOUT 70 YEARS, R/O VILALGE SIMARIYA GOTEGAON DISTRICT NARSINGHPUR (MADHYA PRADESH)

2. STATE OF M.P. THROUGH COLLECTOR JABALPUR (MADHYA PRADESH)

3. DILIP MEHTA S/O DHEERAJ MEHTA, AGED Signature Not Verified Signed by: MOHD TABISH ABOUT 71 YEARS, R/O RAJUL ARCADE RUSSEL CHOWK JABALPUR (MADHYA PRADESH)

4. RAKESH GUPTA S/O GOPAL DAS GUPTA OCCUPATION: BUSINESS R/O 848 JDA GROUND DISTRICT (MADHYA PRADESH)

5. NEERAJ JAIN S/O SURESH JAIN R/O 1063 NARSINGH WARD AMANPUR JABALPUR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI SANKALP KOCHAR - ADVOCATE FOR RESPONDENT NO.3)

This petition coming on for admission this day, the court passed the following:

ORDER

This Miscellaneous Petition is filed under Article 227 of the Constitution of India by the plaintiffs being aggrieved of order dated 05.07.2023, Annexure P-7 passed by learned VII th Civil Judge, Junior Division, Jabalpur in Civil Suit No.222-A/2014 whereby an application under Section 151 CPC filed by the plaintiffs restraining the subsequent purchasers of the suit property from leading evidence in defense has been rejected.

Shri Manoj Sanghi has placed reliance on two judgments of the Hon'ble Supreme Court in Dhanna Singh and Others Vs. Baljinder Kaur and Others, (1197) 5 SCC 476, wherein it is held that right of the subsequent purchasers to lead evidence is restricted. It is held that as per the doctrine of lis pendens under Section 52 of the T.P. Act, the subsequent purchasers does not get any right to lead to any evidence, as he stepped into the shoes of the first defendant, who had given up the right to lead evidence.

Similarly, reliance is placed on the judgment of the Hon'ble Supreme Court in India Umbrella Manufacturing Co. and Others Vs. Bhagabandei Agarwalla (Dead) by Lrs. Savitri Agarwalla (Smt) and Others, (2004) 3 Signature Not Verified Signed by: MOHD TABISH SCC 178 where Supreme Court has held that the Transferee pendent lite cannot take a stand contrary to that of predecessor-in-interest.

Placing reliance on the said judgments, it is submitted that the Trial Court erred in rejecting the application under Section 151 C.P.C. and that be allowed.

Shri Sankalp Kochar, learned counsel for respondent No.3, in his turn, submits that case of the plaintiffs and respondents is quite different from the facts of the two cases cited. Plaintiffs are claiming title over the suit property on the strength of some power of attorney executed by the original owner of the property i.e. defendant No.1 Smt. Siya Bai whereas the respondent No.3 is the purchasers of the property from the legal heirs of Smt. Siya Bai and, therefore, it is not a case of lis pendens so to attract provisions of Section 52 of the Transfer of Property Act, 1882 but case being on a different footing, the application has been rightly rejected.

After hearing learned counsel for the parties and going through the record, it is evident that petitioners' plea is that in terms of the provisions contained in Order 22 Rule 10 C.P.C. without leave of the Co