1. To question correctness of the judgment dated 11.4.2012 passed by learned Single Bench in SB Civil Writ Petition No.3089/2012 this appeal is preferred. By the judgment impugned learned Single Bench affirmed the judgment dated 1.11.2011 passed by the Board of Revenue, Rajasthan, Ajmer.
2. The factual background giving rise to instant litigation is that the Collector, Bikaner by an order dated 19.4.2003 allotted a chunk of land measuring 261.01 bighas to appellant Rajasthan State Industrial Development & Investment Corporation Limited (hereinafter referred to as 'the RIICO') on lease for a period of 99 years. Prior to it the land was set apart for industrial purposes vide order dated 22.3.2013. After allotment of the land it came into knowledge of the appellant that as a consequent to a judgment and decree dated 3.10.2005 a part of allotted land measuring 18 bighas and 10 biswas is to be entered in revenue records as khatedari land of plaintiffs Dularam and Gopalram sons of Ganesharam. Suffice to mention that a revenue suit as per provisions of Section 88 of the Rajasthan Tenancy Act and Section 136 of the Rajasthan Land Revenue Act was preferred by the plaintiffs aforesaid before the court of learned Sub Divisional Officer (North), Bikaner and that was decreed under a judgment dated 3.10.2005. The Sub Divisional Officer by the judgment aforesaid declared the plaintiffs having khatedari rights in 10.18 bighas land in khasra No.923/159 village Chakgarbi, 2.12 bighas land in khasra No.1093/159, 9.13 bighas land in khasra No.850/159 and 5.15 bighas land in khasra No.1176/365.
3. An application thereafter was made for making certain amendments in the judgment and decree dated 3.10.2005 and that came to be accepted on 3.11.2008 in following terms :-
4. An appeal giving challenge to the judgment and decree dated 3.10.2005 as amended under the order dated 3.11.2008 was filed by the RIICO before the Revenue Appellate Authority, Bikaner as per provisions of Section 223 of the Rajasthan Tenancy Act. The appellant contended that the decree was granted after handing over possession of the land to it, therefore, the same is bad being passed without affording an opportunity of hearing to the RIICO. Several other grounds including the fact that the suit land was declared under khatedari rights of the plaintiffs without inspecting the site and factual examination of the record as ordered by the adjudicating court on 27.6.2005. The Revenue Appellate Authority by its judgment dated 19.7.2010 accepted the appeal and set aside the order passed by the Sub Divisional Officer (North), Bikaner. Learned Revenue Appellate Authority remanded the matter to the Sub Divisional Officer for its adjudication afresh after joining the RIICO as defendant. The operative portion of the order passed by learned Revenue Appellate Authority under the judgment dated 19.7.2010 reads as under:-
5. An appeal as per Section 225 of the Rajasthan Tenancy Act then was filed by plaintiff Dularam and two subsequent purchasers of the land viz. Hanuman Singh and Dalip Puri before the Board of Revenue, Rajasthan, Ajmer with contention that the Revenue Appellate Authority erred while entertaining appeal preferred by the RIICO though filed at highly belated stage and further that without appreciating the fact that as per law laid down by Hon'ble Supreme Court in Ajay Hasia v. Khalid Mujib Sehravardi & Ors., reported in AIR 1981 SC 487, and Delhi Transport Corporation v. D.T.C. Mazdoor Congress, reported in AIR 1991 SC 101, the RIICO is a 'State' as defined under Article 12 of the Constitution of India, therefore, the presence of the State of Rajasthan in the suit as defendant was sufficient to assume the presence of the RIICO as defendant. Learned Board of Revenue, Rajasthan, Ajmer by its judgment dated 1.11.2011 accepted the appeal and set aside the judgment dated 19.7.2010 passed by the Revenue Appellate Authority, Bikaner. Learned Board of Revenue held that no physical possession of the land was ever handed over to the RIICO and, therefore, merely on basis of giving paper possession, RIICO cannot be treated as a party necessary to the suit proceedings. The Board of Revenue further held that when the State Government itself was a party to the suit proceedings, any body/institution under it is not a party necessary.
6. Being aggrieved by the order passed by learned Board of Revenue the appellant petitioner approached this Court by way of filing a petition for writ that came to be dismissed by judgment impugned dated 11.4.2012. Learned Single Bench while dismissing the writ petition held that on 19.4.2003 the suit preferred by plaintiffs Dularam and Gopalram was pending before a competent court, therefore, the land in question could have not been transferred to the RIICO. It was also noticed that on the date when the suit was decreed, the physical possession of the land was not with RIICO and, therefore, the finding arrived by the Board of Revenue is correct. The finding arrived by learned Single Bench reads as under :-
"After hearing learned counsel for the parties, have perused the order impugned. Upon perusal of the finding given by the Board of Revenue, it is revealed that judgment was passed by the Sub Divisional Officer (North), Bikaner against the State prior to allotment of land in question to the RIICO. The question of land in dispute was subjudice 5 before the Court but the District Collector illegally made recommendation to transfer the land to the RIICO and, upon recommendation made by the District Collector, the land was transferred to RIICO vide order dated 19.04.2003 and, admittedly, on that date, the suit was pending in between the private respondents and State. The Board of Revenue while considering the aspect of possession gave categorical finding that possession is taken over only on paper because still the possession of the said land was with the private respondents. In my opinion, the finding given by the Board of Revenue with regard to the claim of the petitioner over the land is perfectly justified because dispute was going on in between the State and private respondents in the suit pending before the S.D.O. (North), Bikaner. The District Collector, Bikaner who is representing the State was very much before the S.D.O. (North), Bikaner in the suit because the private respondents impleaded the State as party, therefore, there was no occasion for the District Collector to transfer the said land to the RIICO which was subject-matter of the suit.
In my opinion, the District Collector, Bikaner acted totally contrary to the basic principles of law and, upon illegal recommendation made by the District Collector, the land was transferred to the RIICO which was subject-matter 6 of the suit in between private respondents and the State. Contention of the petitioner's counsel that without impleading RIICO the matter was decided is totally baseless because the suit was filed in the year 1996 and, on the basis of recommendation made by the District Collector, the land in question was transferred to RIICO on 19.04.2003. Therefore, there was no question to implead RIICO as party because so called right of the RIICO in the land in question accrued on 19.04.2003 on the basis of illegal recommendation made by the District Collector for allotment of the land which was subject-matter of the suit. In this view of the matter, this Court is of the opinion that the judgment of the Board of Revenue impugned in this writ petition is perfectly in consonance with law because the private respondents contested the suit for 9 years and, after final verdict, a new party RIICO was planted by the District Collector to deny the fruits of the suit filed by the private respondents."
7. In appeal, the argument advanced by learned counsel for the appellant is that in the instant case the original court without physically inspecting the site and examining the record issued a decree of declaration in favour of the plaintiff and that was further amended even without issuing notice to the defendant and the party interested having physical possession over the land. According to learned counsel the observation of learned Board of Revenue that since the State Government has not challenged the judgment and decree dated 3.10.2005, the RIICO is having no authority to challenge the same, is apparently bad. The land was allotted to RIICO and in pursuance thereof possession too was given and as such the RIICO was a party necessary. Heavy reliance is placed by learned counsel upon the judgment of Apex Court given in Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited & Ors., reported in (2013)5 SCC 397, while dealing with the scope and implication of Section 52 of the Transfer of Property Act, by taking into consideration several judgments and holding that the transfer made in favour of subsequent purchaser during pendency of a suit is subject to the rider provided under Section 52 of the Transfer of Property Act, but for the ends of justice, such purchaser may be added as a party defendant in suit with permission to take only such defences which are available to the party from which that derive title and further that a transferee pendente lite can be added as a party to the suit being suffered prejudice on account of the transferrer losing interest in the litigation post transfer. The interest of the transferee pendente lite being not just peripheral but substantial deserves protection and looking to this aspect only the Revenue Appellate Authority accepted the appeal preferred by the appellant petitioner and that should have not been interfered by the Board of Revenue in appeal under Section 225 of the Rajasthan Tenancy Act, 1955.
8. While meeting with the arguments advanced, learned counsel for the respondent plaintiff and the subsequent purchasers of the land in question submits that doctrine of lis pendente lite enshrined under Section 52 of the Transfer of Property Act, 1882 is based on ground that it is necessary for administration of justice that the decision of a court in a suit should be binding not only to the litigating parties but on those who derive title pendente lite. It is asserted by learned counsel that transfer of land to RIICO during pendency of the suit was in contravention of Section 52 of the Transfer of Property Act and, therefore, that does not create any right in favour of the appellant petitioner who is bound by the decree and judgment granted by the revenue court.
9. Heard learned counsels.
10. The argument advanced on behalf of the appellant petitioner is that in light of the law laid down by Hon'ble Supreme Court in the case of Thomson Press (India) Limited (supra), though the transfer of property made during the pendency of a suit is subject to the rider provided under Section 52 of the Transfer of Property Act, but a transferee pendente lite can be added as proper party, if his interest is substantial and not just peripheral. This deviation is permissible to meet the ends of justice as the transferrer may have no more interest in the property and he may not defend the suit properly. The court, thus, is vested with broad discretion and that must be exercised judicially and an alienee would ordinarily be permitted to join suit proceedings as party to enable him to protect his interest.
11. The argument advanced has been examined by us on the scale of Section 52 of the Transfer of Property Act by taking due care of the law laid down in the case of Thomson Press (India) Limited (supra). The doctrine of lis pendente lite as embodied under Section 52 of the Transfer of Property Act provides that during 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 proceedings which is not collusive and in which any right to immoveable 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. The effect of doctrine of lis pendens as per Section 52 ibid is not to annul all voluntary transfers effected by the parties to a suit but only to render it subservient to the rights of the parties thereto under the decree or order which may be made in a suit. Its effect is only to make the decree passed in the suit binding on the transferee, if he happens to be third party person even if he is not a party to it. Accordingly, a transfer made lis pendente lite if not void, is voidable at the option of the party where interests are effected thereby and the parties to the transfer are abide by the decree eventually passed.
12. In the case in hand a suit preferred by plaintiffs Gopalram and Dularam was pending before a competent court and that was not a collusive one. In the suit rights relating to immoveable property were directly and specifically in question. The property directly and specifically in question was transferred to the RIICO during pendency of the suit and that effected the rights of other party.
13. In this factual background the provisions of Section 52 of the Transfer of Property Act are certainly attracted with full rigour. The appellant is searching escape from it on basis of the law laid down by the Apex Court in the case of Thomson Press (India) Limited (supra). In the case aforesaid the issue before the court was an application preferred under Order 1, Rule 10 Code of Civil Procedure on behalf of the transferee in a suit for specific performance. The application was rejected by the original court and while examining validity of that, Hon'ble Supreme Court was of the view that unless both the contracting parties and the subsequent purchaser joined the proceedings, it is quite possible that difficulty may arise subsequently with regard to title claimed through specific performance. The Court while accepting the appeal quite cautiously ordered that "in the facts and circumstances of the case and also for the ends of justice the appellant is to be added as party defendant in the suit". The Court was also of the view that a transferrer pendente lite may not even defend the title properly as he has no interest in the same or may with collude with the plaintiff in which case the interest of the purchaser pendente lite would be ignored. To avoid such situation the transferee pendente lite can be added as a party-defendant to the case provided his interest is substantial and not just peripheral.
14. In the instant matter the suit was not for specific performance but to declare khatedari rights. The suit was adequately con
Please Login To View The Full Judgment!
tested by the State and its functionaries and even before this Court the State though has not filed any appeal giving challenge to the judgment and decree is contesting matter against the plaintiffs and their successors. It is also pertinent to notice that the suit decreed by the judgment dated 3.10.2005 relating to declaration of khatedari rights for a land measuring 18 bighas and 10 biswas, whereas the land allotted to the RIICO is more than 261 bighas including the suit property. The suit was decreed in the year 2005 and the appeal was filed in the year 2010. In the suit proceedings the Collector who allotted property to the RIICO was a party defendant and he contested the matter. It is really strange that the RIICO, a Government company, came before the Court with allegation that it was not having knowledge about pendency of the case even though the allottee was none else but the Collector, Bikaner who allotted the land. 15. Looking to this background, we are of considered opinion that instant one is not a case where a deviation be permitted from the doctrine of lis pendente lite embodied under Section 52 of the Transfer of Property Act, 1882. In our considered opinion learned Single Bench rightly did not interfere with the order passed by the Board of Revenue. 16. Accordingly, the appeal is dismissed. While parting with the case we would like to expunge the observation made by learned Single Bench to the extent that "a new party RIICO was planted by the District Collector to deny the fruits of the suit filed by the private respondents", being not well founded. No order to costs. Appeal dismissed.