SK.SIRAJ Vs. NILAMANI MOHAPATRA

JUDGEMENT

(1.) INVOKING inherent jurisdiction under Articles 227 of the Constitution of India, the petitioners have filed this writ petition challenging the order dated 18.9.2008 passed by the learned Civil Judge (Senior Division), Bhadrak in O.S.No.336 of 1997.

(2.) OPPOSITE parties 1 and 2 as plaintiffs filed Original Suit No.336 of 1997 in the Court of learned Civil Judge (Senior Division), Bhadrak for partition. After the suit was filed, the order of status quo was passed on 30.4.1998 at the initial stage of the suit. In the said application, the specific prayer made by the plaintiffs was that defendants 7, 16 to 18 and 26 be injuncted from cutting the trees standing on the suit land, digging the earth, constructing new house by preparing bricks and from putting fence over the suit land. The said order of status quo is still continuing. While the matter stood thus, defendants 16, 17 and 18 purchased the aforesaid suit land by the virtue of the registered sale deed dated 3.9.1986. They are in exclusive possession of the suit property having mutated their names in the Settlement Records. The total area of the land is Ac.0.83 decimals. Defendants 17 and 18 by acting agents of defendants No.16 by virtue of a power of attorney executed by defendant No.16 in their favour and for themselves sold the suit land in favour of the petitioners by registered sale deed dated 2.6.2007. When the petitioners came to know about the pendency of the suit for partition, they filed an application under Order 1, Rule 10 of the Civil Procedure Code to implead them as parties in the suit. Plaintiffs filed their objection contending that the petitioners are not necessary parties to the suit and therefore, they prayed for rejection of the application. Defendants 16 and 19 also filed their objection. The learned Civil Judge (Senior Division), Bhadrak rejected the said application taking into consideration the provision of Section 52 of the Transfer of Property Act (hereinafter referred to as "the T.P.Act").

(3.) THE learned counsel appearing for the opposite parties submitted that as the petitioners are lis pendens purchasers, they should not be impleaded as parties to the suit and the trial Court rightly rejected the application of the petitioners. The learned counsel appearing for the opposite parties further submitted that a transferee pendente lite without leave of the Court cannot, as of right, be impleaded as party to the suit and the present petitioners being pendente lite transferees, learned Civil Judge (Senior Division), Bhadrak rightly rejected their application as the transfer made in their favour is hit by the principle of lis pendens. In support of his contention, he also cited a decision of the Supreme Court in the case of Bibi Zubaida Khatoon v. Nabi Hassan Saheb and another reported in 2004 (I) SCC 191.