TMI Blog2005 (4) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... dering the applications for substitution filed by the appellants. In our view, the presence of the appellants are absolutely necessary in order to decide the appeals on merits. Since the High Court has committed error by rejecting the appellants applications for substitution treating the same as additional parties and thereby rendering the appellants non-suited. We have no hesitation in setting aside the said orders and permit the appellants to come on record by way of substitution as prayed for. The High Court proceeded on a wrong premise that the appellants had made the application for addition of party whereas the application under consideration was for substitution as the owner had sold the suit property to the appellants and had no interest in the pending litigation. In our opinion, the presence of the appellants was absolutely necessary since the appellants are the only persons who has got subsisting right, title and interest in the suit. The appellants are at liberty to contest the matter on merits. Consequently, the appeals shall stand allowed. However, there shall be no order as to costs. - HON'BLE ASHOK BHAN AND A.R. LAKSHMANAN, JJ. For the Appellant : L. Nageswara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmediately thereafter, the appellants filed the petitions praying for adding them as a party in connection with those two appeals. In this factual background, the following questions of law arise for consideration by this Court in these appeals: 1) Whether on a combined reading of Order 1 Rule 10, Order XXII Rule 10 of the Code of Civil Procedure, 1908 and Section 52 of the Transfer of Property Act, 1882, an application for substitution by a subsequent transferee can be rejected and he be non-suited altogether? 2) Whether a decree for adverse possession is set aside in First Appeal in the year 1992 and no stay application was filed for long 12 years (till 2004) in the Second Appeal, whether a transferee interregnum from the owner/defendant, without knowledge of the second appeal, is a necessary party or whether their application for substitution can be rejected, when there is no allegation of mala fide or ill motive? 3) Whether the High Court has not committed serious error while concluding that the presence of the appellants is not necessary in order to decide the appeal and there is no merit in the application for addition of party though the application was made by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy. An attempt has been made by the applicants to show that they were not aware about the pendency of the appeals. But this claim, in my opinion, is not believable since the litigation is going on for more than 40 years. Moreover being a purchaser, it is the duty of the applicants to make proper enquiry before the purchase. Section 52 of the Transfer of Property Act has clearly prohibited the transfer of property which is subject matter of a pending suit. The purchase, in this respect, can only be done with the permission of the Court. Admittedly no permission has been obtained and as such, this transfer in favour of the applicants is certainly hit by the doctrine of lis pendens as provided under Section 52 of the Act. So, the applicants cannot claim at this stage that their interest is going to be affected unless they are made a party in this appeal. In my considered opinion, the presence of the applicants is not at all necessary in order to decide the appeals in question effectively and conclusively. As such, I hold that there is no merit in the applications of the applicants praying for adding them as parties in these two appeals. Therefore, from my above discussion, I am of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule(1). Section 52 of the Transfer of Property Act Transfer of property pending suit relating thereto During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation - For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale executed on 15.12.1995, duly registered with the Additional Registrar of Assurances, Calcutta, Kalyani Dey Sold the property being 132 B of the above address to the other appellant. The second appeals filed by the parties were pending on the file of the High Court at Calcutta. The appellants had no knowledge of the second appeals. Thereafter on verification, the appellants came to know about the pendency of the appeals which necessitated them to file the applications for substitution in the second appeals. In the meanwhile, the appellants filed the applications before the Municipal authorities for mutation of their names in respect of the property on 24.12.2002 and the Municipal authority informed the appellants that they are not in a position to mutate the names of the appellants of the property in question because of the pendency of the two second appeals before the High Court at Calcutta. Thereafter the appellants engaged an advocate to find out whether any such appeals have been filed by the parties. The advocate so engaged informed the appellants that two appeals being S.A.Nos. 631 and 632 of 1993 were filed by Fakir Mohammad, Farida Khatoon Ors. Respondent Nos. herein. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 2. The suit or proceeding must not be collusive. 3. The litigation must be one in which right to immovable property is directly and specifically in question. 4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. 5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. 16. The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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