Ram Surat Ram (Maurya), J.@mdashHeard Sri Hari Bans Singh, for the petitioner and Sri R.S. Mishra, for the contesting respondents. The writ
petition has been filed against the orders of Consolidation Officer dated 22.3.2014, allowing impleadment application of Shankar Singh
(respondent-5), Settlement Officer Consolidation dated 14.11.2014 and Deputy Director of Consolidation dated 3.8.2015, dismissing appeal and
revision of the petitioner against aforesaid order, in proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the
Act).
2. The dispute relates to inheritance of the land in dispute, which belonged to late Ram Pyari. Respondent-4 filed an objection under section 9 of
the Act, for recording his name as an heir of Ram Pyari under her Will dated 15.5.1986. The petitioner filed another objection for recording his
name as an heir of Ram Pyari under her will dated 13.7.1986. The Consolidation Officer by order dated 1.8.2000, directed to mutate the name of
the petitioner as an heir of Ram Pyari. Respondent-4 filed an application for recall of the order dated 1.8.2000, which was allowed on 11.8.2000.
Thereafter, Consolidation Officer by order dated 5.12.2000, directed to mutate the name of Keshav Prasad Giri (respondent-4) as an heir of Ram
Pyari.
3. The petitioner filed an application for recall of the order dated 5.12.2000. The Consolidation Officer by order dated 31.1.2013, restrained the
parties from transferring the land in dispute and directed for maintaining status quo on the spot. Shankar Singh (respondent-5) filed an application
for his impleadment as party in the objection on 10.1.2014 on the ground that Keshav Prasad Giri (respondent-4) has executed a sale-deed dated
9.12.2013 of the disputed land in his favour and handed over possession to him over it. The petitioner contested the aforesaid application on the
ground that respondent-5 was a pendente lite transferee and his sale-deed was hit by section 52 of Transfer of Property Act, 1882. The
Consolidation Officer by order dated 22.3.2014 held that as interest in the land in dispute has been assigned to respondents-5 as such he is liable
to be impleaded as party in the objection. On these findings impleadment application has been allowed. The petitioner filed an appeal from the
aforesaid order. Settlement Officer Consolidation by dated 14.11.2014 dismissed the appeal. The petitioner filed a revision against the aforesaid
order. Deputy Director of Consolidation by order dated 3.8.2015, dismissed the revision. Hence this writ petition has been filed.
4. The Counsel for the petitioner submitted that section 52 of Transfer of Property Act, 1882 prohibits the parties to the suit from transferring the
property in dispute, except with the leave of the Court. Respondent-5 is a pendente-lite transferee, without leave of the Court. Respondent-5,
knowingly purchased the litigation on its own risk. He was neither necessary nor proper party'' and he was not entitled to be impleaded in the
objection.
5. I have considered the arguments of the Counsel for the petitioners and examined the record. In order to appreciate arguments, relevant
provisions of Transfer of Property Act, 1882 and Civil Procedure Code, 1908 are quoted below:--
52. Transfer of property pending suit relating thereto.--During the pendency in any Court having authority within the limits of India excluding the
State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in
which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any
party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except
under the authority of the Court and on such terms as it may impose.
Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the
presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has
been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become
unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
146. Proceedings by or against representatives.--Save as otherwise provided by this Code or by any law for the time being in force, where any
proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or
against any person claiming under him.
Order 1, Rule 10 . Suit in name of wrong plaintiff.--(1)..........
(2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and
on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be
struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court
may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be
added.
Order XXII, Rule 10 . Procedure in case of assignment before final order in suit.--(1) In other cases of an assignment, creation or devolution of
any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest
has come or devolved.
6. Section 52 of Transfer of Property Act, 1882 safeguard the right of the litigant from pendente lite transfer. The Court is empowered to have the
control over the subject-matter of the suit so that decree obtained by successful party may not be defeated by pendente lite transfer. However it
does not impose a complete prohibition of the transfer of subject-matter of the suit as the Court is given jurisdiction to grant leave to transfer. The
issue in this respect came for consideration before a bench of three Hon''ble Judges of Supreme Court Jayaram Mudaliar Vs. Ayyaswami and
Others, , in which it has been held that expositions of the doctrine of lis pendens indicate that the need for it arises from the very nature of the
jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-
matter outside the power of the Court to deal with it and thus make the proceedings infructuous. The purpose of section 52 of the Transfer of
Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property
to which claims are put forward. Supreme Court again in Hardev Singh Vs. Gurmail Singh (Dead) by LRs., , held that section 52 of the Transfer of
Property Act, 1882 merely prohibits a transfer. It does not state that the same would result in an illegality. Only effect of this provision is the
purchaser during the pendency of a suit would be bound by the result of the litigation. The transaction, therefore, was not rendered void and/or of
no effect. Same view has been taken in T.G. Ashok Kumar Vs. Govindammal and Another, , and Thomson Press (India) Ltd. Vs. Nanak Builders
and Investors P. Ltd. and Others, .
7. Order 1, Rule 10 C.P.C., the Court has jurisdiction to direct impleadment of necessary and proper party. Under Order 1, Rule 10(2) C.P.C.,
the Court is required to record a finding that person sought to be impleaded as party in the suit is either necessary or proper party. While section
146 read with Order XXII, Rule 10 C.P.C. confers right upon the person claiming title through a party to the litigation to be impleaded with the
leave of the Court and continue the litigation. While deciding an application under section 146 and Order XXII, Rule 10 C.P.C., the Court is not
required to go in to the controversy as to whether person sought to be impleaded as party in the suit is either necessary or proper party. If the
person sought to be impleaded as party is legal representative of a party to the suit, it is sufficient for the Court to order impleadment/substitution of
such person. A transferee pendente lite is a legal representative of the party.
8. A Bench of four Hon''ble Judges of Supreme Court in Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, , held that section 146 was
introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to
be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a
restricted or technical sense. The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed
by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of
1955 must be held to be maintainable under section 146 .
9. Supreme Court in Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, , held that the plain language of Order XXII, Rule 10
C.P.C. does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit may be
continued by the person upon whom such an interest has devolved and this applies in a case where the interest of the plaintiff has devolved.
Likewise, in a case where interest of the defendant has devolved, the suit may be continued against such a person upon whom interest has
devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the
suit, leave of the Court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of a party to the
suit has devolved during its pendency, then there may be preposterous results as such a party might not be knowing about the litigation and
consequently not feasible for him to apply for leave and if a duty is cast upon him then in such an eventuality he would be bound by the decree even
in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was
within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for
such a leave so that his interest may be properly represented as the original party, if it ceased to have an interest in the subject-matter of dispute by
virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by colluding with the
other side. If the submission of Shri Mishra is accepted, a party upon whom interest has devolved, upon his failure to apply for leave, would be
deprived from challenging correctness of the decree by filing a properly constituted suit on the ground that the original party having lost interest in
the subject of dispute, did not properly prosecute or defend the litigation or, in doing so, colluded with the adversary. Similar view are taken by
Supreme Court in Raj Kumar Vs. Sardari Lal and Others, .
10. Supreme Court in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, , held that a transferee pendente lite to the extent he has
acquired interest from the defendant is vitally interested in the litigation, where 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 XXII, 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 representative-in-interest of the
party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is
made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. This judgment has again been followed in Thomson
Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd. and Others, .
11. Thus in view of judgment of Supreme Court in Jayaram Mudaliar''s case (supra) that purpose of section 52 of the Transfer of Property Act is
not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims
are put forward and such a transfer is not void and in Saila Bala Dassi''s case (supra) holding that the object of section 146 is to facilitate the
exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed
liberally and so as to advance justice and not in a restricted or technical sense. In view, of the aforesaid discussions, the orders of consolidation
authorities allowing impleadment application of respondent-5, do not suffer from any illegality. The writ petition has no merit and is dismissed.