OMPRAKASH Vs. PARVATIBAI

JUDGEMENT

(1.) Rule returnable forthwith. Heard finally with the consent of learned Counsel for the respective parties.

(2.) This Civil Revision Application is preferred by a stranger to the suit being aggrieved by an order passed on 5.12.2012 by the learned District Judge-I, Kelapur in Regular Civil Appeal No.33 of 2004. The application was filed before the appellate Court under Order 1, Rule 10 (2) of the Code of Civil Procedure as the applicant wanted deletion of original appellant no.3 on the ground that he died during pendency of the proceedings. Alternatively, the applicant had prayed that his name be substituted in place of deceased/appellant no.3. The application was strongly objected on behalf of the original defendant no.3 on the ground that lis pendens notice was registered with the Sub-Registrar at Wani and though Regular Civil Suit No.29 of 1987 was filed on 27.2.1987 during pendency of the suit on 7.9.2001, it is alleged that revision applicant entered into transaction in respect of the immovable property which is subject matter of the pending Civil Suit. Regular Civil Suit No.29 of 1997 was decreed on 22.1.2004 with costs. In the result, the plaintiffs in the suit were entitled for partition and separate possession of their 1/5th share for each of the plaintiffs in the suit property by metes and bounds. The house property was directed to be partitioned by appointing the Court Commissioner. While partition in respect of agricultural fields was directed by sending precept to the Collector, Yavatmal for partition and separate possession pursuant to decree. It was declared that the sale deeds executed on 5.11.1990 and 12.2.1992 in favour of defendant no.6(1) to 6(4) were not binding on the plaintiffs. The sale deeds exceeding 1/5th share of the deceased/defendant no.1 Mahadeo were thus declared null and void. This decree was challenged in the Regular Civil Appeal. Therefore, during pendency of the appeal, the revision applicant as a purchaser during pendency of the suit preferred application under Order 1, Rule 10 (2) of the Code of Civil Procedure.

(3.) The learned Counsel for original plaintiff nos. 1 to 3 opposed impleading of revision applicant as a party/defendant as, according to him, during pendency of the suit, the revision applicant had ventured to enter into transaction in respect of the immovable property belonging to the joint hindu family. According to him, the plaintiff do not want him to join as a party/defendant, particularly because lis pendens notice was registered with Sub-Registrar at Wani and revision applicant cannot be a bona fide purchaser without notice of defect in the title as to immovable property purchased by him. The alleged sale transaction in respect of field S.No.27/7 of the area O.41 R for alleged consideration of Rs. 1,00,000/- was entered into on 7.9.2001 when lis pendens notice was operative as suit came to be decided on 22.1.2004. Under these circumstances, it is submitted on behalf of the respondents/plaintiffs that the learned District Judge rightly observed that legal effect of the transaction will have to be considered while deciding the appeal and it was not necessary to implead revision applicant in place of original appellant no.3. It appears that the learned District Judge-I wrongly mentioned appellant no.3 as original defendant no.3 in the impugned order.