Third-Party Purchaser Cannot Join Partition Execution Case — Patna High Court, 2025

Case Background

This case arises out of a very old family dispute over partition of joint family property between two brothers, sons of Late Benga Sao — Bhagwat Prasad and Krishna Dutta.
With intervention of family well-wishers, the dispute was referred to arbitration.
The arbitrators (Panchas) delivered a partition award on 26.06.1970, which was registered on 04.08.1970.

Thereafter, Bhagwat Prasad and a deity (through its Sewait, Bhagwat Prasad) filed Title Suit No. 54 of 1977/58 of 1978 before the Sub Judge-II, Patna, seeking to make the registered award a rule of court.
An ex parte decree was passed on 25.07.1978.

Krishna Dutta challenged that ex parte decree by filing Misc. Case No. 71 of 1979.
That application succeeded, and by order dated 13.12.1980 the ex parte decree was set aside and the title suit was restored.

Later, Krishna Dutta filed Misc. Case No. 383 of 1986 in the High Court against the trial court judgment making the award part of the decree.
The High Court dismissed his challenge by judgment and decree dated 28.04.1994.
Krishna Dutta then went to the Supreme Court in Civil Appeal No. 7475 of 1994.

Before the Supreme Court, the parties filed a compromise petition.
On 10.10.1996, the Supreme Court accepted the compromise and modified the decree with clear directions:
houses/buildings were to be divided 50:50 between the two brothers, lands were to remain as per the award schedules, and shebaitship was to be shared six months each.
The Supreme Court directed the District Judge, Patna, to appoint a person (Pleader Commissioner/Advocate Commissioner) to effect partition by metes and bounds and ensure delivery of possession, including remaining lands.

In compliance with that order, Misc. Case No. 227 of 1996 was instituted before the District Judge, Patna, to implement the modified decree.
Over the years, Pleader Commissioners were appointed, possession was delivered, and reports were submitted.
Both original brothers — Bhagwat Prasad and Krishna Dutta — have since died, and their heirs are now on record in the Misc. Case.

What the Court Examined and Decided

The present Civil Miscellaneous Petition No. 185 of 2023 was filed under Article 227 of the Constitution of India before the Patna High Court.
The petitioner is a woman who purchased certain land from Krishna Dutta on 16.10.2008 via a registered sale deed.
She sought to intervene in Misc. Case No. 227 of 1996 by filing an application under Order I Rule 10(2) read with Section 151 of the Code of Civil Procedure.

Her application for impleadment, filed on 30.07.2010 before the Additional District Judge-XIV, Patna, was rejected by order dated 12.12.2022.
That rejection order is what she challenged before the High Court under Article 227.

Petitioner’s Claim

The petitioner stated that she purchased:
Khata No. 145, Khesra No. 3205 (4275 sq. ft. / 3 decimals),
Khata No. 763, Khesra No. 3206 (5 decimals),
and Khata No. 145, Khesra No. 3207 (6 decimals),
from Krishna Dutta, son of Late Shiv Lal Sao, on 16.10.2008.
She claimed to be a bona fide purchaser who paid consideration and took possession.

According to her, under the original arbitration award of 26.06.1970 the immovable properties were divided into two schedules.
Schedule I went to Bhagwat Prasad; Schedule II went to Krishna Dutta.
She asserted that the land she purchased fell in Schedule II and was described as “ditch” land, not house property.
She argued that as per the Supreme Court’s modified decree dated 10.10.1996, Schedule II land remained with Krishna Dutta.
She further claimed that Krishna Dutta had partitioned his share by metes and bounds among his sons and daughters, and that the suit land came into his exclusive share, enabling him to sell it to her.

The petitioner said she later came to know about the pendency of Misc. Case No. 227 of 1996 and therefore sought to be added as a party so that her interest could be protected.
She pointed out that Krishna Dutta had died, and that his heirs were allegedly not interested in pursuing the miscellaneous case or protecting her rights as purchaser.
On that basis, she argued she was a successor-in-interest and needed to be impleaded.

The petitioner also attacked the handling of the Pleader Commissioners’ reports.
She stated that:
an earlier Pleader Commissioner had prepared a report in terms of the Supreme Court’s directions and, according to her, showed the land in question in Krishna Dutta’s share but left the work incomplete;
a second Pleader Commissioner was later appointed, whose incomplete report allegedly contained “objectionable” material and was objected to by Krishna Dutta;
that commissioner died before his report could be accepted; and
her vendor Krishna Dutta then died, leaving no one to contest the report or protect her.

She further argued that under Order 26 Rule 10(2) CPC, after the death of the Pleader Commissioner, his challenged report could not be accepted because he could not be examined.
According to her, this made the entire Misc. Case No. 227 of 1996 liable to be dismissed.

The petitioner also contended that the trial court wrongly interpreted the award and decree in saying that transfers of suit land would be void.
She asserted there was no prohibition on Krishna Dutta selling the property which, she claimed, was in his share.
She argued that the first Pleader Commissioner’s report had become final since objections were rejected, and that the second Commissioner could only deliver possession, not change the earlier report.
She tried to invoke constructive res judicata against the second report if it contradicted the first.

To support her plea for impleadment as a transferee, she relied on several Supreme Court decisions:
Dhanlakshmi v. P. Mohan (2007) 10 SCC 719 (purchasers of undivided share allowed to come on record in final decree proceedings),
Saila Bala Dassi v. Nirmala Sundari Dassi AIR 1958 SC 394 (purchaser allowed to intervene in execution of mortgage decree),
Khemchand Shankar Choudhary v. Vishnu Hari Patil (1983) 1 SCC 18,
Amit Kumar Shaw v. Farida Khatoon AIR 2005 SC 2209,
Dhurandhar Prasad Singh v. Jai Prakash University (2001) 6 SCC 534,
Savitri Devi v. District Judge, Gorakhpur AIR 1999 SC 976, and
Sharadamma v. Mohammed Pyarejan (2016) 1 SCC 730.

Respondents’ Stand

The respondents, including heirs of Bhagwat Prasad and others, strongly opposed the petition.
They argued that:
the petitioner’s purchase was from Krishna Dutta in 2008, long after the Supreme Court’s modified decree of 10.10.1996;
the property she claimed was, in fact, not in Krishna Dutta’s share but was the residential property of the respondents.

They relied on the Survey Knowing Pleader Commissioner’s report, including a report dated 03.03.2001, which, on their reading, showed that:
the eastern portion of Plot Nos. 3204, 3205, 3206 and 3207 was allotted to Bhagwat Prasad, and possession was delivered to him on 31.12.2000;
the western portion of those plots was given to Krishna Dutta.

They further alleged that Krishna Dutta had sold properties allotted to Bhagwat Prasad, both during litigation and even after possession was delivered, as a way to frustrate the award.
They gave examples where Krishna Dutta attempted to set up third parties:
a petition by one Sri Paswan and his son to be added and to claim Plot No. 529 was dismissed on 27.11.1998;
another petition by Krishna Dutta’s second wife Urmila Devi, filed on 11.04.1997 claiming that Plot Nos. 3204–3207 belonged to her, was dismissed on 03.04.1999;
later applications by Krishna Dutta in 2001 challenging how these plots were treated were rejected on 08.08.2003.

According to the respondents, after these failures Krishna Dutta “mischievously and dishonestly” sold the same disputed property to the present petitioner in 2008.
They thus said she had “purchased the litigation” and could not gain any higher right than her vendor.

They stressed that as per the Supreme Court’s directions, the Survey Knowing Pleader Commissioner had already given delivery of possession of all immovable properties, including Plot Nos. 3204–3207.
They also pointed out that Bhagwat Prasad’s name had been mutated in State records by order dated 09.11.2005 and that he had been depositing rent to the Government of Bihar from 2006–07 to 2017–18.
Hence, they argued, the petitioner’s claim of current possession was false.

The respondents also highlighted the Supreme Court’s clause dealing with third-party rights: any third-party actions, if desired, were to be taken separately and the District Judge’s role in Misc. Case No. 227 of 1996 was limited to implementing the modified decree.
Thus, the subordinate court had no jurisdiction to entertain third-party claims in that execution-like proceeding.
They relied on a recent Patna High Court decision in Dera Sahi Samadan Patiala v. The State of Bihar and another (Civil Misc. No.343 of 2023), where impleadment of a third party in execution was refused.

High Court’s Analysis

Justice Arun Kumar Jha examined Order I Rule 10(2) CPC and the Supreme Court judgment in Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd. (2010) 7 SCC 417.
That case explains the concepts of “necessary party” and “proper party” and stresses that impleadment is a matter of judicial discretion.

The Court noted that the trial court had rejected the petitioner’s impleadment mainly on two grounds:
delivery of possession in terms of the modified decree had already taken place, and
as per the award/decree (which attained finality after the Supreme Court’s order dated 10.10.1996), any transfer of land that formed part of the suit property was void.

The High Court then examined the petitioner’s central claim that her land was part of Schedule II, allegedly not falling within house property, and was in Krishna Dutta’s share.
The Court found this assertion unsustainable in light of the Survey Knowing Pleader Commissioner’s report.

The Court pointed out that the documents relied upon by the Pleader Commissioner, Advocate Shivanand Singh, showed that Plot Nos. 3205 to 3207 contained houses.
This was treated as a finding of fact.
In such a situation, the High Court said it had no reason to take a contrary view.

The petitioner’s argument that the first Commissioner’s report was final, and that objections to the second report were pending or that the second report could not override the first, was not accepted.
The Court noted that:
possession had already been delivered and had not been challenged;
a petition by Krishna Dutta dated 10.11.2003 challenging the Commissioner’s report had been rejected by the Additional District Judge-III, Patna on 05.03.2016 (albeit on the technical ground of lack of signature and affidavit);
earlier petitions by other alleged purchasers from Krishna Dutta for impleadment had also been dismissed on 03.12.2003.

The Court stressed that, under the modified decree of 10.10.1996, only third-party rights created prior to that decree were protected.
Any transfer made thereafter, such as the petitioner’s 2008 purchase, did not confer any enforceable right in the execution proceedings.
If a third party was aggrieved, that person was free to proceed against the vendor, not in the execution case.

The Court observed that the petitioner had “not even a semblance of right” to intervene in the execution proceeding.
Misc. Case No. 227 of 1996 arose out of Execution Case No. 08 of 1987 and was meant only to execute the award as modified by the Supreme Court, not to entertain fresh third-party claims.
Relying also on the decision in Dera Sahi Samadan Patiala, the Court termed the petitioner merely an “interloper” or “busybody” in this context.

Because she was a third-party purchaser pendente lite, after the Supreme Court’s modified decree and after delivery of possession, her purchase was treated as lis pendens and void in relation to the rights settled between the two brothers’ families.
Hence, she could not be impleaded in Misc. Case No. 227 of 1996.

The Court clarified that if the petitioner believed she had any independent right, title or possession over the property, she could seek relief in an appropriate separate proceeding against her vendor or others, but not in this execution-related miscellaneous case.

Given this factual and legal position, the authorities cited by the petitioner on impleadment of transferees pendente lite were held inapplicable, as the facts here were materially different.

The High Court concluded there was no jurisdictional error in the Additional District Judge-XIV’s order dated 12.12.2022 and affirmed that order.
Accordingly, Civil Miscellaneous No. 185 of 2023 was dismissed.

Why This Judgment Matters

This decision is important for anyone thinking of buying disputed family property that is already under court litigation or execution.
The Patna High Court has made it clear that a later buyer cannot simply walk into an ongoing execution case and claim rights there.

In simple terms, if you buy property from someone who is already bound by a final decree and possession has been delivered under that decree, you will not be allowed to disturb that execution.
Your purchase may be treated as void for the purpose of that case.
Your remedy, if any, will be against the seller, not against the decree or its execution.

The judgment also reinforces that where the Supreme Court has given specific directions and set a tight framework for partition and delivery of possession, lower courts cannot reopen it by allowing fresh third-party claims inside that execution process.

For lay persons in Bihar and elsewhere, this case is a warning:
before buying land, especially in old family disputes, it is crucial to check whether any award, decree, or Supreme Court order already governs that land, and whether possession has been delivered accordingly.
Otherwise, they may pay money but get no protection in the existing court case.

Legal Issues and Answers

• Issue: Can a purchaser from one of the original parties, who bought land after a Supreme Court-modified partition decree and after delivery of possession, be impleaded as a party in the execution-related Misc. Case No. 227 of 1996?
  Answer: No. The Patna High Court held that such a purchaser has no enforceable right in that execution proceeding, is only a third-party interloper, and cannot be impleaded under Order I Rule 10(2) CPC.
• Issue: Does the Supreme Court’s modified decree of 10.10.1996 protect third-party transfers made after that date with respect to the suit properties?
  Answer: No. The Court held that only third-party rights created prior to the modified decree were indicated as protected.
  Subsequent transfers, like the petitioner’s 2008 purchase, are lis pendens and void so far as the execution proceedings are concerned, leaving any remedy only against the vendor.
• Issue: Can alleged defects or disputes over Pleader Commissioner reports be used by a later purchaser to reopen delivery of possession already effected under the decree?
  Answer: No. The Court found that possession had already been delivered based on the Survey Knowing Pleader Commissioner’s report, challenges by the original party (Krishna Dutta) had been rejected, and a third-party purchaser cannot rely on those internal disputes to claim impleadment.

Cases Cited by the Court

• Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417 — cited by the High Court to explain the law on impleadment under Order I Rule 10(2) CPC, including the concepts of “necessary party” and “proper party”.
• Dera Sahi Samadan Patiala v. The State of Bihar and another, Civil Misc. No. 343 of 2023 — Patna High Court decision relied upon to hold that third-party impleadment in execution proceedings is not permissible when the party claims to represent the decree-holder’s interest.

Case Details

Case Number: Civil Miscellaneous Jurisdiction No. 185 of 2023

Case Title: Meena Devi v. Kailash Devi & Others

Citation: 2025 (2) PLJR 902

Court: High Court of Judicature at Patna

Coram: Hon’ble Mr. Justice Arun Kumar Jha

Date of Judgment: 06.05.2025

Impugned Order: Order dated 12.12.2022 passed in Misc. Case No. 227 of 1996 by Additional District Judge-XIV, Patna

Nature of the Case: Petition under Article 227 of the Constitution challenging rejection of an application for impleadment (Order I Rule 10(2) CPC) in a partition execution-related miscellaneous case arising out of Execution Case No. 08 of 1987.

Advocates:

For the Petitioner: Mr. Jitendra Kishore Verma, Advocate; Ms. Pratibha Gupta, Advocate

For Respondent No. 2: Mr. Anupam Prabhat Shrivastava, Advocate

For Respondents 1, 5 to 10, 13 & 14: Mr. Ram Anuj Prasad Singh, Advocate; Mr. Ashok Kumar, Advocate

Link to Judgment: https://patnahighcourt.gov.in/viewjudgment/NDQjMTg1IzIwMjMjMSNO-nXFAMcM6jaI=

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