Case Background
The dispute arises out of Title Suit No. 64 of 2011 pending before the court of Sub Judge-VI, Araria. The plaintiffs in that suit claim that the suit land is their ancestral property and that they and their ancestors have been in possession with valid right, title and interest.
They describe the land as Schedule A and say that Schedule B is a part carved out of Schedule A. They seek a declaration that both Schedules A and B belong to them as real owners.
The plaintiffs further allege that, during revisional survey (R.S.) operations, entries were wrongly made in the names of ancestors of defendant nos. 1 to 4 and in the names of defendant nos. 5 to 9 and 10 to 12. According to the plaintiffs, those persons were not connected with the original C.S. recorded tenants. Therefore, the survey entries in their favour are said to be not binding on the plaintiffs.
On this foundation, the plaintiffs ask the civil court for several reliefs: declaration of their title over Schedules A and B, a finding that the rival survey entries are illegal and not binding, confirmation of their possession, and, if they are dispossessed during the suit, recovery of possession as well as permanent injunction restraining defendant nos. 1 to 12 from dispossessing them or transferring the land during pendency of the suit.
During pendency of this title suit, the present petitioner purchased 2.16 acres of the suit property from defendant nos. 8 and 9. It is stated that defendants 8 and 9 themselves claimed interest only to the extent of this 2.16 acres, and that their whole interest stood transferred to the petitioner.
After this purchase, the petitioner moved an application dated 20.03.2015 under Order 1 Rule 10(2) of the Code of Civil Procedure, seeking to be added as a party to the title suit so that his rights as purchaser could be safeguarded.
The trial court, however, by order dated 08.09.2016, rejected this application. It held that the purchase was made during the pendency of the suit, that defendants 8 and 9 were already contesting the case, and that the intervenor had not produced material to show that the suit was collusive. The trial court was of the view that the petitioner’s interest was sufficiently protected through his vendors who were already on record as defendants.
Aggrieved by this refusal, the purchaser approached the Patna High Court under Article 227 of the Constitution of India in Civil Miscellaneous No. 1346 of 2016, challenging the trial court’s order and praying that his application for impleadment be allowed.
What the Court Examined and Decided
Hon’ble Mr. Justice Arun Kumar Jha heard learned senior counsel for the petitioner and learned counsel for respondent nos. 1 to 9. Counsel for the respondents raised no objection to the petitioner’s prayer for being added as a party.
The petitioner’s side argued that the trial court’s refusal went against settled principles laid down by the Supreme Court on impleadment and on the rights of a transferee pendente lite (a purchaser who acquires property while a case about that property is still pending).
To support this, learned senior counsel for the petitioner relied on several decisions of the Hon’ble Supreme Court and one decision of the Patna High Court.
First, he relied on the judgment in Amit Kumar Shaw & Anr. v. Farida Khatoon & Anr., AIR 2005 SC 2209. There, the Supreme Court held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the transferor and is entitled to be impleaded in the suit or other proceedings. Once impleaded, such a transferee is entitled to be heard on the merits of the case.
He next cited the judgment of a Single Judge of the Patna High Court in Gauri Shankar Pathak and Ors. v. Dr. Shankaranand Upadhyay and Ors., 2011(2) BBCJ V-50, which followed the principles of Amit Kumar Shaw.
The petitioner’s counsel also referred to the Supreme Court decision in Mumbai International Airport (P) Ltd. v. Regency Convention Centre and Hotels (P) Ltd. and Ors., (2010) 7 SCC 417, dealing with the scope of Order 1 Rule 10(2) CPC on impleadment of parties. There, the Court clarified the concepts of “necessary party” and “proper party”.
The Supreme Court in that case explained that while the plaintiff is dominus litis and normally free to choose whom to sue, the court can, under Order 1 Rule 10(2), add any person as a party who is either a necessary or proper party for effective and complete adjudication of the questions in the suit.
The Patna High Court judgment quotes important paragraphs from Mumbai International Airport. The Supreme Court defined a “necessary party” as one without whom no effective decree can be passed; absence of such a party can result in dismissal of the suit. A “proper party” is one whose presence enables the court to completely and effectively decide all matters in dispute, even if no direct relief is claimed against that person.
The Supreme Court also stressed that the discretion to add parties must be exercised on the basis of reason and fair play, not whims. No person can insist on being added solely on the ground that he considers himself a proper party. At the same time, where a person has a genuine and substantial interest in the subject matter, the court can exercise its discretion to add him.
Further reliance was placed on Kasturi v. Iyyamperumal, (2005) 6 SCC 733. In that case, the Supreme Court clarified again who are “necessary” and “proper” parties: necessary parties are those whose absence would prevent the court from making an effective decree or against whom some relief is claimed; proper parties are those whose presence is required for a complete settlement of all questions involved, even though no relief is claimed against them.
The petitioner’s counsel also cited Sumtibai v. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.), (2007) 10 SCC 82, where the Supreme Court held that even a person having a semblance of interest in the suit property could be added as a party.
Returning to Amit Kumar Shaw, the Patna High Court highlighted paragraphs 16, 17, and 18 of that decision. The Supreme Court there observed that though a transferee pendente lite does not have an absolute right to be added as a party, the court has discretion to include him as a proper party if his interest in the subject matter is substantial and not merely peripheral.
The Supreme Court pointed out that where the entire interest of the defendant in the property has been transferred, the defendant may lose incentive to defend the suit properly, or may even collude with the plaintiff. In such situations, it is generally appropriate to join the transferee pendente lite as a party so that he can protect his own interest.
In Amit Kumar Shaw, the Supreme Court ultimately held that the presence of the transferee purchasers was “absolutely necessary” as they were the only persons with subsisting right, title and interest in the suit property, and permitted them to be substituted.
Applying these principles, the Patna High Court examined the facts at hand. Here, the petitioner had purchased 2.16 acres of the suit land from defendant nos. 8 and 9. The whole interest of those defendants in that part of the land had been transferred to him. Therefore, in respect of that 2.16 acres, he now held the subsisting interest.
The trial court had refused impleadment mainly because the purchase occurred during pendency of the suit and because the original defendants 8 and 9 were still contesting the case. It had also said that there was no material to show collusion between those defendants and the plaintiffs, and that the purchaser’s interest was protected through his vendors.
The High Court disagreed with this approach. Looking to the law declared by the Supreme Court, the Court noted that a transferee pendente lite, whose interest in the suit property is substantial, is entitled to be heard and may be added as a party so that any decree passed in the suit is binding, and so that his rights are not decided behind his back.
The High Court held that, in light of these binding precedents, the trial court had committed an error of jurisdiction in refusing to add the petitioner as a party. The fact that defendants 8 and 9 were already on record, or that there was no proof of collusion, did not by itself justify denying impleadment when the purchaser had become the person directly affected by the outcome in respect of the purchased land.
Since counsel for respondent nos. 1 to 9 had no objection to the petitioner’s impleadment, and since Supreme Court judgments supported such impleadment, the High Court concluded that the order of the Sub Judge-VI, Araria, could not stand.
Accordingly, the High Court set aside the order dated 08.09.2016 passed in Title Suit No. 64 of 2011 and allowed the petitioner’s application dated 20.03.2015 under Order 1 Rule 10(2) CPC. As a result, the civil miscellaneous petition under Article 227 was allowed.
Why This Judgment Matters
This judgment is important for buyers who purchase land while a civil suit regarding that land is already going on. Many purchasers fear that their rights will be ignored because the case started before they came into the picture.
The Patna High Court confirms that such a purchaser is not helpless. If he has bought a substantial part of the disputed land, he can approach the court to be added as a party, so that he can speak for himself and protect his interest.
The judgment also guides trial courts not to reject such applications merely because the purchase happened during the suit or because the original seller remains on record. Courts must apply the principles laid down by the Supreme Court and use their discretion to secure fair hearing for all affected persons.
For families involved in ancestral land disputes in Bihar, this decision shows that transfers made during pending suits must be handled carefully, and that the courts will allow genuine purchasers to participate so that the final decision is complete and binding on everyone concerned.
Legal Issues and Answers
- Issue: Whether a purchaser of part of the suit land, who bought during pendency of the title suit, could be refused impleadment on the ground that his vendors (existing defendants) continued to contest the case and there was no proof of collusion.
Answer: No. Relying on Supreme Court precedent, the Patna High Court held that a transferee pendente lite with substantial interest in the suit property is a representative-in-interest of his vendors and can be impleaded as a party to protect his rights. The trial court’s refusal was an error of jurisdiction.
Cases Cited by the Court
- Mumbai International Airport (P) Ltd. v. Regency Convention Centre and Hotels (P) Ltd. and Ors., (2010) 7 SCC 417
- Kasturi v. Iyyamperumal, (2005) 6 SCC 733
- Sumtibai v. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.), (2007) 10 SCC 82
- Amit Kumar Shaw & Anr. v. Farida Khatoon & Anr., AIR 2005 SC 2209
- Gauri Shankar Pathak and Ors. v. Dr. Shankaranand Upadhyay and Ors., 2011(2) BBCJ V-50
Case Details
Case Number: Civil Miscellaneous Jurisdiction No. 1346 of 2016; arising out of Title Suit No. 64 of 2011 (Sub Judge-VI, Araria)
Case Title: Md. Ismail @ Md. Ismail Azad v. Md. Mozim & Ors.
Coram: Hon’ble Mr. Justice Arun Kumar Jha
Date of High Court Judgment: 27.08.2024
Citation: 2024 (4) PLJR 421
Advocates:
- For the Petitioner: Mr. Raghib Ahsan, Senior Advocate; Mr. Wasi Akhtar, Advocate; Mr. Ashar Akhtar, Advocate
- For the Respondents: Mr. Sanjay Kumar Sharma, Advocate (for respondent nos. 1 to 9)
Nature of the Case: Petition under Article 227 of the Constitution of India challenging an interlocutory order in a title suit (order on application for impleadment under Order 1 Rule 10(2) of the Code of Civil Procedure).
Final Outcome: High Court set aside the order dated 08.09.2016 of Sub Judge-VI, Araria in Title Suit No. 64 of 2011 and allowed the petitioner’s application for impleadment dated 20.03.2015. Civil Miscellaneous petition allowed.
Link to Judgment: Patna High Court Judgment in C.Misc. No. 1346 of 2016
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