From the foregoing facts as stated by the
petitioner in the petition, all rights claimed by the
respondent nos. 3 and 4 over the suit property have been
allegedly transferred in favour of the petitioner. In the
background of such facts, it would be necessary to consider
whether the petitioner is entitled to be impleaded in the suit
filed by the respondent nos. 1 and 2. Taking note of the
reliefs sought in the suit filed by respondent nos. 1 and 2, it
cannot be disputed that the relief if granted therein would
affect the right claimed by the petitioner over the suit
property. In this context, the observations of the Apex Court
in the judgment reported in (2006)9 SCC page 199 in the
case of Devendra Kumar Sarewgee and others V/s
Purbanchal Estates (P) Ltd., and others, at paras 11 and
12 would be relevant which read thus :
“11. This Court after detailed
consideration of the case-law in Raj
Kumar V/s Sardari Lal has held that the
transferee pendente lite is treated in the
eye of the law as a representative-ininterest
of the judgment-debtor and
bound by the decree passed against the
judgment-debtor. In case of an
assignment, creation or devolution of any
interest during the pendency of any suit,
Order 22 Rule 10 CPC confers a discretion
on the court hearing the suit to grant
leave to the person in or upon whom such
interest has come to vest or devolve to be:9:
brought on record. Bringing on a lis
pendens transferee on record is not as of
right but in the discretion of the court.
12. To the similar effect is the judgment
of this court in Amit Kumar Shaw V/s
Farida Khatoon. It has been observed as
follows : (SCC p. 411)
“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; under
Order 22 Rule 10 an alienee pendente lite
may be joined as party. As already
noticed, the Court has discretion in the
matter which must be judicially exercised
and an alienee would ordinarily be joined
as a party to enable him to protect his
interests. The Court has held that a
transferee pendente lite of an interest in
immovable property is a representativein-interest
of the party from whom he has
acquired that interest. He is entitled to be
impleaded in the suit or other proceedings
where the transferee pendente lite is
made a party to the litigation; he is
entitled to be heard in the matter on the
merits of the case” .
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 564 OF 2007
Krishnan Venugopal,
V
Antonio Joao A. Braganza,
CORAM : F. M. REIS, J
DATE : 5th SEPTEMBER, 2012.
Citation:(2012)6 ALLMR 934: 2013(1) MHLJ435
2. The above petition challenges an order passed by
the learned Civil Judge Senior Division, Mapusa, in Regular
Civil Suit No. 58/1999 dated 08.06.2007 whereby an
application filed by the petitioner to get himself impleaded in
the suit as pendente lite transferee came to be rejected.
3. Shri Bhobe, learned counsel appearing for the
petitioner has pointed out that the law is well settled that the:3:
pendente lite transferee can be impleaded in the suit to
avoid multiplicity of the proceedings. The learned Counsel
further pointed out that the petitioner himself has filed an
application to be impleaded in the suit and any decree in the
suit would affect the right of the petitioner in the suit
property. The learned Counsel has taken me through the
impugned order and pointed out that the learned Judge has
erroneously dismissed the application on a spacious ground
that there are no pleadings to that effect in the plaint. The
learned counsel as such submits that the impugned order
deserves to be quashed and set aside.
4. I have considered the submissions of the learned
counsel appearing for the petitioner and I have also gone
through the records as well as the impugned order. In order
to consider as to whether the petitioner is to be impleaded
as a party to the suit, it would be appropriate to note the
scope and the meaning of doctrine of lis pendens under
Section 52 of the Transfer of Property Act. Section 52 of the
Transfer of Property Act does not declare a pendente lite
transfer by a party to the suit as void or illegal, but only
makes the pendente lite purchaser bound by the decision in
the pending litigation. The principle underlying Section 52 is:4:
that if during the pendency of any suit in a court of
competent jurisdiction which is not collusive, in which any
right of an immovable property is directly and specifically in
question, such property cannot be transferred by any party
to the suit so as to affect the rights of any other party to the
suit under any decree that may be made in such suit. If
ultimately the title of the pendente lite transferor is upheld
in regard to the transferred property, the transferee's title
will not be affected. On the other hand, if the title of the
pendente lite transferor is recognised or accepted only in
regard to a part of the transferred property, then the
transferee's title will be saved only in regard to that extent
and the transfer in regard to the remaining portion of the
transferred property to which the transferor is found not
entitled, will be invalid and the transferee will not get any
right, title or interest in that portion. If the transferor is
found to have no right or title in such property the transferee
will not have any title to the property.
5. In the present case, the respondent nos. 1 and
2/original plaintiffs filed a suit for declaration and permanent
injunction and demolition against the respondent nos. 3 to
9/original defendant nos. 1 to 7 on the ground that the:5:
respondent nos.1 and 2 along with respondent nos. 5 to 9
were the owners in possession of the property known as
“Sironi” surveyed under no.132/2 of Village Calangute. It is
further their case that on 27.03.1999, the respondent nos. 3
and 4 trespassed into the suit property bearing survey
no.132/2 and commenced the construction of a compound
wall around the suit property. It is further their case that on
28.03.1999, the respondent nos. 3 and 4 dumped rubble
stones and mud in the suit property and taking note of the
fact that there were holidays in the month of March, they
have taken law in their hands and trespassed into the
property surveyed under no. 132/2 and attempted to make a
road through the suit property. It is further their case that
the said respondents have no right to the suit property and
not entitled to construct a compound wall or any road
through the said property. On the basis of such pleadings,
the respondent nos. 1 and 2 filed the suit inter-alia seeking a
declaration that the respondent nos. 1, 2, 5, 6, 7, 8 and 9
are the owners in possession of the suit property and for
permanent injunction restraining the respondent nos. 3 and
4 from constructing any compound wall or a road or interfere
with the said portion of the property.
6. The respondent nos. 3 and 4 filed their written
statement and it is their case that the said respondent nos.
1, 2, 5 to 9 have no right and interest in the said portion of
the property surveyed under No. 132/2 and that the said
plaintiffs/respondent nos. 1 and 2 were always in Bombay
and that the respondent nos. 3 and 4 have been maintaining
the eastern and western boundary of the property and that
the said respondents and their predecessor in title used the
property surveyed under no.132/2 as an access to proceed
from the house which is situated on the southern side of the
property through the traditional pathway since the time
immemorial. It is further their case that the question of
trespassing in the property as alleged by the respondent
nos. 1 and 2 did not arise and that they have always been
using the said portion of the property as a means of access.
A counter claim came to be filed by the respondent nos. 3
and 4 praying inter-alia for a permanent injunction
restraining the respondent nos. 1 and 2 from interfering with
the said portion of the property surveyed under no.132/2
and/or doing anything within the suit property and from in
any manner obstructing the said respondents from using or
enjoying the suit access. The respondent nos. 5, 6, 7, 8 and
9 filed their written statement. The written statement to the:7:
counter claim also came to be filed on behalf of the
respondent nos. 1 and 2. During the pendency of the said
suit, on 27.05.2005 the respondent nos. 3 and 4 by a Deed
of Sale transferred and conveyed their property surveyed
under no.132/6 in favour of the petitioner. The said
respondents also transferred all their rights, privilages,
actions and claims accruing to them and appurtenant to the
property purchased by the petitioner including the rights and
claim of the respondent nos. 3 and 4 herein in respect of the
access and right of way leading through the said property
surveyed under no.132/6. Thereafter, an application came
to be filed dated 03.06.2005 praying inter-alia to implead
the petitioner to the said suit. By an order dated
08.06.2007, the learned Judge at Mapusa, dismissed both
the applications filed by the petitioner. Being aggrieved by
the said order, the petitioner has filed the above petition.
7. From the foregoing facts as stated by the
petitioner in the petition, all rights claimed by the
respondent nos. 3 and 4 over the suit property have been
allegedly transferred in favour of the petitioner. In the
background of such facts, it would be necessary to consider
whether the petitioner is entitled to be impleaded in the suit
filed by the respondent nos. 1 and 2. Taking note of the
reliefs sought in the suit filed by respondent nos. 1 and 2, it
cannot be disputed that the relief if granted therein would
affect the right claimed by the petitioner over the suit
property. In this context, the observations of the Apex Court
in the judgment reported in (2006)9 SCC page 199 in the
case of Devendra Kumar Sarewgee and others V/s
Purbanchal Estates (P) Ltd., and others, at paras 11 and
12 would be relevant which read thus :
“11. This Court after detailed
consideration of the case-law in Raj
Kumar V/s Sardari Lal has held that the
transferee pendente lite is treated in the
eye of the law as a representative-ininterest
of the judgment-debtor and
bound by the decree passed against the
judgment-debtor. In case of an
assignment, creation or devolution of any
interest during the pendency of any suit,
Order 22 Rule 10 CPC confers a discretion
on the court hearing the suit to grant
leave to the person in or upon whom such
interest has come to vest or devolve to be:9:
brought on record. Bringing on a lis
pendens transferee on record is not as of
right but in the discretion of the court.
12. To the similar effect is the judgment
of this court in Amit Kumar Shaw V/s
Farida Khatoon. It has been observed as
follows : (SCC p. 411)
“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; under
Order 22 Rule 10 an alienee pendente lite
may be joined as party. As already
noticed, the Court has discretion in the
matter which must be judicially exercised
and an alienee would ordinarily be joined
as a party to enable him to protect his
interests. The Court has held that a
transferee pendente lite of an interest in
immovable property is a representativein-interest
of the party from whom he has
acquired that interest. He is entitled to be
impleaded in the suit or other proceedings
where the transferee pendente lite is
made a party to the litigation; he is
entitled to be heard in the matter on the
merits of the case” .
8. Considering the said judgment of the Apex Court
and taking note of the fact that the rights of the respondent
nos. 3 and 4 in the adjoining property surveyed under no.
132/6 along with all rights and privileges appurtenant in the
suit property have been transferred in favour of the
petitioner, I find that in such circumstances to avoid
multiplicity of the proceedings as any decree passed in the
said suit would affect the alleged right claimed by the
petitioner, the learned Judge was not justified to pass the
impugned order refusing to implead the petitioner as a party
defendant to the suit. In fact, the respondent nos. 1 and 2
had not even raised any objections to the application filed by
the petitioner. In such circumstances, I find that the learned
Judge has erroneously dismissed the application filed by the
petitioner without considering the well settled principles as
laid down by the Apex Court referred to herein above.
Hence, the petitioner is entitled to be impleaded as a party
defendant no.8 in the suit filed by the respondent nos. 1 and
2 and would be entitled to raise any defences as he may be
permissible in law in such capacity.
9. In view of the above, the impugned order
cannot be sustained and deserves to be quashed and set
aside. Hence, I pass the following ::12:
O R D E R
(i) The impugned order dated 08.06.2007 is
quashed and set aside.
(ii) The petitioner is allowed to be joined as
defendant no.8 in Regular Civil Suit No.
58/1999/B.
(iii) Rule is made absolute in above terms.
(iv) The petition stands disposed of accordingly.
F. M. REIS, J
Print Page
petitioner in the petition, all rights claimed by the
respondent nos. 3 and 4 over the suit property have been
allegedly transferred in favour of the petitioner. In the
background of such facts, it would be necessary to consider
whether the petitioner is entitled to be impleaded in the suit
filed by the respondent nos. 1 and 2. Taking note of the
reliefs sought in the suit filed by respondent nos. 1 and 2, it
cannot be disputed that the relief if granted therein would
affect the right claimed by the petitioner over the suit
property. In this context, the observations of the Apex Court
in the judgment reported in (2006)9 SCC page 199 in the
case of Devendra Kumar Sarewgee and others V/s
Purbanchal Estates (P) Ltd., and others, at paras 11 and
12 would be relevant which read thus :
“11. This Court after detailed
consideration of the case-law in Raj
Kumar V/s Sardari Lal has held that the
transferee pendente lite is treated in the
eye of the law as a representative-ininterest
of the judgment-debtor and
bound by the decree passed against the
judgment-debtor. In case of an
assignment, creation or devolution of any
interest during the pendency of any suit,
Order 22 Rule 10 CPC confers a discretion
on the court hearing the suit to grant
leave to the person in or upon whom such
interest has come to vest or devolve to be:9:
brought on record. Bringing on a lis
pendens transferee on record is not as of
right but in the discretion of the court.
12. To the similar effect is the judgment
of this court in Amit Kumar Shaw V/s
Farida Khatoon. It has been observed as
follows : (SCC p. 411)
“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; under
Order 22 Rule 10 an alienee pendente lite
may be joined as party. As already
noticed, the Court has discretion in the
matter which must be judicially exercised
and an alienee would ordinarily be joined
as a party to enable him to protect his
interests. The Court has held that a
transferee pendente lite of an interest in
immovable property is a representativein-interest
of the party from whom he has
acquired that interest. He is entitled to be
impleaded in the suit or other proceedings
where the transferee pendente lite is
made a party to the litigation; he is
entitled to be heard in the matter on the
merits of the case” .
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 564 OF 2007
Krishnan Venugopal,
V
Antonio Joao A. Braganza,
CORAM : F. M. REIS, J
DATE : 5th SEPTEMBER, 2012.
Citation:(2012)6 ALLMR 934: 2013(1) MHLJ435
2. The above petition challenges an order passed by
the learned Civil Judge Senior Division, Mapusa, in Regular
Civil Suit No. 58/1999 dated 08.06.2007 whereby an
application filed by the petitioner to get himself impleaded in
the suit as pendente lite transferee came to be rejected.
3. Shri Bhobe, learned counsel appearing for the
petitioner has pointed out that the law is well settled that the:3:
pendente lite transferee can be impleaded in the suit to
avoid multiplicity of the proceedings. The learned Counsel
further pointed out that the petitioner himself has filed an
application to be impleaded in the suit and any decree in the
suit would affect the right of the petitioner in the suit
property. The learned Counsel has taken me through the
impugned order and pointed out that the learned Judge has
erroneously dismissed the application on a spacious ground
that there are no pleadings to that effect in the plaint. The
learned counsel as such submits that the impugned order
deserves to be quashed and set aside.
4. I have considered the submissions of the learned
counsel appearing for the petitioner and I have also gone
through the records as well as the impugned order. In order
to consider as to whether the petitioner is to be impleaded
as a party to the suit, it would be appropriate to note the
scope and the meaning of doctrine of lis pendens under
Section 52 of the Transfer of Property Act. Section 52 of the
Transfer of Property Act does not declare a pendente lite
transfer by a party to the suit as void or illegal, but only
makes the pendente lite purchaser bound by the decision in
the pending litigation. The principle underlying Section 52 is:4:
that if during the pendency of any suit in a court of
competent jurisdiction which is not collusive, in which any
right of an immovable property is directly and specifically in
question, such property cannot be transferred by any party
to the suit so as to affect the rights of any other party to the
suit under any decree that may be made in such suit. If
ultimately the title of the pendente lite transferor is upheld
in regard to the transferred property, the transferee's title
will not be affected. On the other hand, if the title of the
pendente lite transferor is recognised or accepted only in
regard to a part of the transferred property, then the
transferee's title will be saved only in regard to that extent
and the transfer in regard to the remaining portion of the
transferred property to which the transferor is found not
entitled, will be invalid and the transferee will not get any
right, title or interest in that portion. If the transferor is
found to have no right or title in such property the transferee
will not have any title to the property.
5. In the present case, the respondent nos. 1 and
2/original plaintiffs filed a suit for declaration and permanent
injunction and demolition against the respondent nos. 3 to
9/original defendant nos. 1 to 7 on the ground that the:5:
respondent nos.1 and 2 along with respondent nos. 5 to 9
were the owners in possession of the property known as
“Sironi” surveyed under no.132/2 of Village Calangute. It is
further their case that on 27.03.1999, the respondent nos. 3
and 4 trespassed into the suit property bearing survey
no.132/2 and commenced the construction of a compound
wall around the suit property. It is further their case that on
28.03.1999, the respondent nos. 3 and 4 dumped rubble
stones and mud in the suit property and taking note of the
fact that there were holidays in the month of March, they
have taken law in their hands and trespassed into the
property surveyed under no. 132/2 and attempted to make a
road through the suit property. It is further their case that
the said respondents have no right to the suit property and
not entitled to construct a compound wall or any road
through the said property. On the basis of such pleadings,
the respondent nos. 1 and 2 filed the suit inter-alia seeking a
declaration that the respondent nos. 1, 2, 5, 6, 7, 8 and 9
are the owners in possession of the suit property and for
permanent injunction restraining the respondent nos. 3 and
4 from constructing any compound wall or a road or interfere
with the said portion of the property.
6. The respondent nos. 3 and 4 filed their written
statement and it is their case that the said respondent nos.
1, 2, 5 to 9 have no right and interest in the said portion of
the property surveyed under No. 132/2 and that the said
plaintiffs/respondent nos. 1 and 2 were always in Bombay
and that the respondent nos. 3 and 4 have been maintaining
the eastern and western boundary of the property and that
the said respondents and their predecessor in title used the
property surveyed under no.132/2 as an access to proceed
from the house which is situated on the southern side of the
property through the traditional pathway since the time
immemorial. It is further their case that the question of
trespassing in the property as alleged by the respondent
nos. 1 and 2 did not arise and that they have always been
using the said portion of the property as a means of access.
A counter claim came to be filed by the respondent nos. 3
and 4 praying inter-alia for a permanent injunction
restraining the respondent nos. 1 and 2 from interfering with
the said portion of the property surveyed under no.132/2
and/or doing anything within the suit property and from in
any manner obstructing the said respondents from using or
enjoying the suit access. The respondent nos. 5, 6, 7, 8 and
9 filed their written statement. The written statement to the:7:
counter claim also came to be filed on behalf of the
respondent nos. 1 and 2. During the pendency of the said
suit, on 27.05.2005 the respondent nos. 3 and 4 by a Deed
of Sale transferred and conveyed their property surveyed
under no.132/6 in favour of the petitioner. The said
respondents also transferred all their rights, privilages,
actions and claims accruing to them and appurtenant to the
property purchased by the petitioner including the rights and
claim of the respondent nos. 3 and 4 herein in respect of the
access and right of way leading through the said property
surveyed under no.132/6. Thereafter, an application came
to be filed dated 03.06.2005 praying inter-alia to implead
the petitioner to the said suit. By an order dated
08.06.2007, the learned Judge at Mapusa, dismissed both
the applications filed by the petitioner. Being aggrieved by
the said order, the petitioner has filed the above petition.
7. From the foregoing facts as stated by the
petitioner in the petition, all rights claimed by the
respondent nos. 3 and 4 over the suit property have been
allegedly transferred in favour of the petitioner. In the
background of such facts, it would be necessary to consider
whether the petitioner is entitled to be impleaded in the suit
filed by the respondent nos. 1 and 2. Taking note of the
reliefs sought in the suit filed by respondent nos. 1 and 2, it
cannot be disputed that the relief if granted therein would
affect the right claimed by the petitioner over the suit
property. In this context, the observations of the Apex Court
in the judgment reported in (2006)9 SCC page 199 in the
case of Devendra Kumar Sarewgee and others V/s
Purbanchal Estates (P) Ltd., and others, at paras 11 and
12 would be relevant which read thus :
“11. This Court after detailed
consideration of the case-law in Raj
Kumar V/s Sardari Lal has held that the
transferee pendente lite is treated in the
eye of the law as a representative-ininterest
of the judgment-debtor and
bound by the decree passed against the
judgment-debtor. In case of an
assignment, creation or devolution of any
interest during the pendency of any suit,
Order 22 Rule 10 CPC confers a discretion
on the court hearing the suit to grant
leave to the person in or upon whom such
interest has come to vest or devolve to be:9:
brought on record. Bringing on a lis
pendens transferee on record is not as of
right but in the discretion of the court.
12. To the similar effect is the judgment
of this court in Amit Kumar Shaw V/s
Farida Khatoon. It has been observed as
follows : (SCC p. 411)
“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; under
Order 22 Rule 10 an alienee pendente lite
may be joined as party. As already
noticed, the Court has discretion in the
matter which must be judicially exercised
and an alienee would ordinarily be joined
as a party to enable him to protect his
interests. The Court has held that a
transferee pendente lite of an interest in
immovable property is a representativein-interest
of the party from whom he has
acquired that interest. He is entitled to be
impleaded in the suit or other proceedings
where the transferee pendente lite is
made a party to the litigation; he is
entitled to be heard in the matter on the
merits of the case” .
8. Considering the said judgment of the Apex Court
and taking note of the fact that the rights of the respondent
nos. 3 and 4 in the adjoining property surveyed under no.
132/6 along with all rights and privileges appurtenant in the
suit property have been transferred in favour of the
petitioner, I find that in such circumstances to avoid
multiplicity of the proceedings as any decree passed in the
said suit would affect the alleged right claimed by the
petitioner, the learned Judge was not justified to pass the
impugned order refusing to implead the petitioner as a party
defendant to the suit. In fact, the respondent nos. 1 and 2
had not even raised any objections to the application filed by
the petitioner. In such circumstances, I find that the learned
Judge has erroneously dismissed the application filed by the
petitioner without considering the well settled principles as
laid down by the Apex Court referred to herein above.
Hence, the petitioner is entitled to be impleaded as a party
defendant no.8 in the suit filed by the respondent nos. 1 and
2 and would be entitled to raise any defences as he may be
permissible in law in such capacity.
9. In view of the above, the impugned order
cannot be sustained and deserves to be quashed and set
aside. Hence, I pass the following ::12:
O R D E R
(i) The impugned order dated 08.06.2007 is
quashed and set aside.
(ii) The petitioner is allowed to be joined as
defendant no.8 in Regular Civil Suit No.
58/1999/B.
(iii) Rule is made absolute in above terms.
(iv) The petition stands disposed of accordingly.
F. M. REIS, J
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