RASHID AHMAD vs Mst. JIWAN And 5 Other

SAIDUZZAMAN SIDDIQUI, J.---Respondent No.1 owned agricultural land measuring 13 Kanals situated in Chak NO.II/Ford, Tehsil Chishtian, District Bahawalnagar (hereinafter to be called as the suit land). She sold the suit land to Muhammad Ismail (deceased predecessor-in-title of respondents Nos. 3 to 6), for Rs. 1,000 through Mutation No. 428 dated 15-10-1966. The suit land was subsequently sold by respondent No. l through a registered sale-deed in favour of respondent No.2.

Muhammad Ismail (deceased) instituted a civil suit against respondents Nos. l and 2 for declaration of title and cancellation of sale-deed executed by respondent No. l in favour of respondent No.2. The trial Court dismissed the suit holding that the registered sale in favour of respondent No.2 had precedence over to oral sale made in favour of predecessor-in-title of respondents Nos.3 to 6, by respondent No. 1. The trial Court further held that sale of suit land in favour of respondent No.2 by respondent No. l was without notice of the earlier oral sale in favour of Muhammad Ismail (deceased). Muhammad Ismail (deceased) challenged the judgment and decree of the trial Court in appeal before Additional District Judge, Bahawalpur. The first Appellate Court though reversed the finding of trial Court on the issue that the sale in favour of respondent No.2 was without notice of the earlier oral sale in favour of Muhammad Ismail (deceased), but in the final conclusion upheld the judgment and decree of trial Court on the ground that registered sale in favour of respondent No.2 prevailed over the oral sale in favour of Muhammad Ismail (deceased). It appears that at this stage respondent No.2 sold the suit land to the appellant through a registered sale deed dated 3-3-1970.

2. Muhammad Ismail (deceased) who felt aggrieved by the judgment and decree of lst Appellate Court lodged R.S.A. No. 481 of 1974 before Bahawalpur Bench of Lahore High Court against the judgment and decree of 1st Appellate Court. The appellant applied to be joined as respondent in R.S.A. No.48/1970 before the High Court, on the strength of registered sale deed in his favour. The learned Judge in Chamber, however, declined to implead the appellant as a party in the pending R.S.A. On the ground that doctrine of lis pendens applied to the case of the appellant. Leave was granted against the order of learned Judge in Chamber to consider the following contentions:-- "The question for consideration in this petition is whether the rule of lis pendens can be set up as a bar to an application by a transferee pendente lite from being impleaded as a party to the pending proceedings. Leave to appeal is granted to consider this question. Security for costs Rs.5,000."

3. We have heard the learned counsel for the appellant. The respondents did not appear and contest the appeal. The learned Judge in Chambers declined to implead the appellant as respondent in the pending R.S.A. Solely on the ground that the property was transferred in his favour by one of the parties to the pending litigation during the pendency of 1st appeal. The view taken by the learned Judge in Chambers does not appear to be correct. The I doctrine of lis pendens contained in section 52 of the Transfer of Property Act, 1882 merely provides that a transfer of immovable property during pendency of a suit, which is not collusive in nature, in which the right to such immovable property is directly and specifically in question, cannot defeat or affect the rights of any party to the proceedings under any decree or order which may be made in such suit. This provision does not preclude the transferee pendente lite from being made a party to the pending proceedings on the basis of such transfer. Order XXII, Rule 10, C.P.C. Which regulates the proceedings of a suit provides that in cases of assignment, creation or devolution of any interest during pendency of suit, the suit may be continued by or against the person to or upon whom such interest has come or devolved. Another provision which is relevant, in such situation is section 146 of C.P.C. Which provides that where any proceedings may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him. Provisions of section 146 and Order 22, 1 C. P. C.

Apply equally to appeals.

4. The appellant having purchased the suit property from respondent No.2 during pendency of appeal, there was not only an assignment and creation of interest in respect of the property which was subject-matter of suit in his favour but he was also a person claiming through respondent No.2. The appellant having stepped into the shoes of respondent No.2 having purchased the suit property during the pendency of the proceedings was entitled to be impleaded as respondent in the appeal.

5. We accordingly, allow the appeal, grant the application of appellant under Order 1, Rule 10, C.P.C.

Filed before the High Court, and direct that he may be impleaded as respondent in the pending R.S.A. As the respondents have not appeared and defended the appeal there will be no order as to costs.