Jhaveri, J. - (1.) By way of this appeal, the appellants have challenged the judgment and order dated 28.04.2000 passed by the learned Single Judge whereby the learned Single Judge has dismissed as withdrawn the first appeal filed by the original plaintiff and rejected the application under Order 22, Rule 10 read with Rule 11 CPC which was filed by the present appellants.
(2.) The facts of the case, according to the appellants, are as under: 1. There is temple of Mahadev Ji at Janta Colony, Jaipur. It was Gaddi of Sawai Pav Maharaj. The erstwhile State of Rajasthan allotted 11 Bighas and 19 Biswa land situated around the temple for temple & Bagichi, in the year Samvat 1935 (equivalent to 1878). After Sawai Pav, Bhagwati Pav became holder of the Gaddi. Bhagwati Pav was controlling two temples, one at village Niwai (Tonk) and another temple of Mahadev Ji at Sawai Pav ki Bagichi, Janta Colony, outside Ghaat Gate, Jaipur. 2. He was having two Chelas; one of them was male Samudri Pav who was looking after the temple of Mahadev Ji and its property at Sawai pav ki Bagichi, Janta Colony, Jaipur. Both Samudri Pav and Manji Moti Nath executed a gift deed on 25.07.1914 in favour of Cheli Manji Shanker Nath who died on Mah Posh, 1971 at the age of 100 years. Both the contesting persons, namely; Sarvari Pav (plaintiff) and Chandrama Pav (defendant) claimed to have inherited the properties of Gaddi Mahadev Ji at Sawai Pav ki Bagichi, Janta Colony, Jaipur, from Cheli Manji Shanker Nath. According to plaintiff Sarvari Pav, Chandrama Pav ousted him from said property being Chela of Manji Shanker Nath because he got married and as per the custom of the Gaddi, married person could not be Chela. 3. As per plaintiff Sarvari Pav, Manji Sanker Nath during her lifetime, executed a registered Will in his favour, first time on 02.08.1967 and second time registered Will on 04.11.1969. The occasion for executing the second registered Will arose because the first was burnt to ash. 4. The defendant Chandrama Pav without any authority, sold some of the properties of the Sawai pav Ki Bagichi, Jaipur Gaddi, on 25.01.1964 to the defendants No. 12 to 15 ( Gelda family) of suit No. 19/1980. Initially mutation was entered in the names of dead person namely Samudri Pav but later on the same was cancelled by the Collector vide order dated 20.08.1990. 5. All other consequential mutations in the names of Chandrama Pav & Galda family were cancelled. The order of the Collector was further upheld by the Board of Revenue vide order dated 5/8/2000 and the same has attained finality as it was not further challenged. As such, the revenue record of the land in question remained as it was. 6. The present dispute pertains to the two suits filed by the plaintiff Sarvari Pav. The first suit No. 79/1978 which was renumbered as 19/1980 after transfer to the Court of A.D.J., was for possession. In the suit, it was prayed that the plaintiff Sarvari Pav may be declared as owner of the property mentioned in para 1 of the plaint and the sale executed by the defendant Chandrama Pav in favour of the other defendants No. 2 to 39 may be declared as void and ineffective as against the plaintiff. 7. It was further prayed that the plaintiff may be put into possession upon whole of the land mentioned in para 1 of the plaint. The sale dated 25.01.1964 made by the defendant Chandrama Pav in favour of other defendants No. 12 to 15, was also under challenge. 8. The second suit No. 238/1979 was filed for declaration and injunction with regard to the land sold through agreement to sale on 22.07.1967 by the defendant Chandrama Pav to Mohan Lal and Laxmi Narain who were the defendants No. 2 and 3. Vide agreement to sale dated 22.07.1967, 375 sq yds. land was sold. That piece of land had already been sold through an agreement to sale by Manji Shanker Nath to Chhota Devi on 21.07.1967. But the agreement to sale stood cancelled as the purchaser did not pay rest of the consideration nor got executed the sale deed. 9. The land has further been sold by Chandrama Pav after having collusion with Smt. Chhota Devi and her husband, to the defendants No. 2 and 3 Mohan Lal and Laxmi Narain and the defendants No. 2 and 3 want to dispossess the plaintiff Sarvari Pav. Therefore, the suit for declaration and injunction regarding the land 375 Sq Yds. was filed. 10. In both the suits, the plaintiff based his claim to the property of Sawai Pav Ki Bagichi being Chela of Manji Shanker Nath and also on the basis of registered will dated 04.11.1969. Chandrama Pav who was the main contesting defendant came with a case in his written statement that he had also derived the property from Manji Shanker Nath. He also based his claim on two grounds; (i) that he was Chela of Manji Shanker Nath, and (ii) that Manji Shanker Nath executed a Will dated 03.05.1970, in his favour. But in the written statements particularly at para 5 of special pleas, filed by defendants No. 12 to 13 (Roshan lal Gelda & Shyam Sundar Galda) had stated that Manji Shankar Nath was having no title/ownership upon the property/ land in question. It is also important to mention that Chandra Pav did also file a Civil Suit No. 187/1972 on 24/9/1970, against Bhonrilal, Shankarnath and Sarvari Pav where in he had stated in the plaint as well as in the statements given on oath that Manji Shankarnath was having no title/concern with the property which was part of the dispute. 11. In the written statement filed by Manji Shankarnat, it was stated that Chandra Pav wanted to had forceful possession upon her property, therefore, he was restrained by the process of law on her prayer. The admission is the best evidence and being superior, over rule even the written document. Thus, the theory of Will dated 3/5/1970 become false and concocted. Rest of the defendants came with a case that they have purchased the property from the defendant No. 1 Chandrama pav for consideration of Rs.60,000/-. It goes without saying that a document without being exhibited cannot be read in evidence. 12. Manji Shankar Nath died in 1971 and Chandrama Pav died on 15/8/1987. Both the suits filed by the plaintiff Sarvari Pav were dismissed by a common judgment dated 31.01.1997. The judgment of the Trial court dated 31.01.1997 was challenged by the plaintiff Sarvari Pav by filing Civil First Appeal No. 165/1998 before this Hon'ble Court. The appeal was admitted and order of status quo was also passed. While the Civil First Appeal was pending before this Hon'ble Court, an application to withdraw the appeal was filed on behalf of plaintiff main appellant on 23.02.2000 through another advocate Mr. G.C. Chatterjee. 13. On receiving a copy of the application, the counsel for the present appellant got surprised as his power was not withdrawn nor any intimation was given by the plaintiff appellant to them that the plaintiff wanted to withdraw the appeal. On coming to know about the said application, two applications were filed by the present appellant as one by Ashok Kumar, Lad Devi, Ram Lal, Shanker Lal, Prabhu Dayal and Smt. Santosh, for impleadment as appellants, being assignee of interest in the property in dispute. The application was filed under Order 22, Rule 10 and 11, CPC. According to them, they have purchased plots of land out of the disputed land, from the plaintiff appellant Sarvari Pav in the year, 1989 and have constructed their houses thereupon and living therein with their families. The purchase was through the agreements to sale. 14. They also stated that previously in the main pending appeal, the plaintiff Sarvari Pav was safeguarding their interests but from the application for withdrawal, it appeared that he was in collusion with the defendants, therefore, it became necessary for them to watch and safeguard their own interests in the land in question. 15. Another application was filed by Smt. Susheela Devi daughter of the plaintiff appellant Sarvari Pav that his father Sarvari Pav gifted some portion of the disputed property in question to her at the time of her marriage and she along with her husband are in physical possession of the same and thus, have interest in the property in their possession. She had also stated in the application that her father Sarvari Pav was attacked and stabbed by some anti social elements and was also kidnapped. Her father was in the custody of the anti social person who under pressure and coercion might have filed the application for withdrawal of the appeal. Otherwise also, she had interest in the property and as such she is a necessary and proper party and she may be allowed to be arrayed as a party to the appeal This application was filed by Smt. Shusheela on 30.03.2000. When plaintiff Sarvari Pav was in illegal custody of the anti social elements including Gelda and others, a reply was arranged on his behalf, to the applications, one filed by Ashok Kumar and others and another by his daughter Smt. Susheela. These replies were filed on or about 15.3.2000 and 30.3.2000, respectively. The learned Single Judge vide order/ judgment dated 28.04.2000 allowed the application for withdrawal of the appeal and dismissed both the applications for impleadment as assignees of interest in place of Sarvari Pav. Hence, this appeal. 16. During pendency of this Special Appeal Sarvari Pav has also died on April, 2012. Her daughter Sushila and son Shankar who were treated as such without being married, have filed applications to substitute them as his LRs. The Hon'ble court kept the application pending observing that the same would be decided at the time of final hearing of the appeal.
(3.) Counsel for the appellant has contended that the learned Single Judge has committed error in rejecting the application under Order 22, Rule 10 CPC, more particularly, the appellants have interest in the property and agreement to sell was on record and application under Order 22, Rule 10 CPC ought to have been allowed pending appeal at appellate stage. Counsel for the appellant has relied upon the decisions of the Supreme Court in the case of: (i) Devendra Kumar Sarewgee and others v. Purbanchal Estates (P) Ltd. & others- 2006(9) SCC 199 , wherein it has been held as under: 11. This Court after detailed consideration of the case-law in Raj Kumar v. Sardari Lal (2004)2 SCC 601 has held that the transferee pendente lite is treated in the eye of law as a representative-in-interest of the judgment-debtor and bound by the decree passed against the judgment-debtor. In case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22, Rule 10 CPC confers a discretion on the court hearing the suit to grant leave to the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing on a list pendens transferee on record is not as of right but in the discretion of the Court. 12. To the similar effect is the judgment of this Court in Amit Kumar Shaw v. Farida Khatoon, JT (2005)11 SCC 403 . It has been observed as follows: (SCC p.411) 'The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether 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 22, 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 the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. (ii) Raj Kumar v. Sardari Lal and others- 2004(2) SCC 601 ; 10. The law laid down by a four-Judges Bench of this Court in Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and Anr., (1958) SCR 1287 is apt for resolving the issue arising for decision herein. A tansferee of property from defendant during the pendency of the suit sought himself to be brought on record at the stage of appeal. The High Court dismissed the application as it was pressed only by reference to Order 22, Rule 10 of the CPC and it was conceded by the applicant that, not being a person who had obtained a transfer pending appeal, he was not covered within the scope of Older 22 Rule 10. In an appeal preferred by such transferee this Court upheld the view of the High Court that a transferee prior to the filing of the appeal could not be brought on record in appeal by reference to Order 22, Rule 10 of the CIV. However, the Court held that an appeal is a proceeding for the purpose of Section 146 and further the expression 'claiming under' is wide enough to include cases of devolution and assignment mentioned in Order 22, Rule 10 . Whoever is entitled to be but has not been brought on record under Order 22, Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code A person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on record at the stage of the appeal can do so by reference to section 146 of the CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. Their Lordships held that being a purchaser pendente lite, a person will be bound by the proceedings taken by the successful party in execution of decree and justice requires that such purchaser should be given an opportunity to protect his rights. 11. In Smt. Salla Bala Dassi case (supra) an earlier decision of this Court in Jugalkishore Saraf v. M/s. Raw Cotton Co. Ltd., (1955) I SCR 1369 was followed. It was a case where during the pendency of a suit for recovery of a debt from the defendant the plaintiff in that suit had transferred to a third person all the book and other debts. This Court held that the position of the transferor vis-a-vis the transferee is nothing more than that of a benamidar for the latter and when the decree is passed for the recovery of that debt it is the latter who is the real owner of the decree. When the transferee becomes the owner of the decree immediately on its passing, he must, in relation to the decree, be also regarded as person claiming under the transferor. The transferee is entitled under Section 146 to make an application for execution which the original decree-holder could do. The executing Court can apply its mind to the simple equitable principle which operates to transfer the beneficent interest in the after-acquired decree under Section 146. As the assignee from the plaintiff of the debt which was the entire subject matter of the suit the transferee was entitled to be brought on record under Order 22, Rule 10 and must, therefore, be also regarded as a representative of the plaintiff within the meaning of Section 47 of the CPC. (iii) Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited and others- 2013(5) SCC 397 ; 26. It would also be worth to discuss some of the relevant laws in order to appreciate the case on hand. Section 52 of the Transfer of Property Act speaks about the doctrine of lis pendens. Section 52 reads as under: 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 proceedings 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. It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. 28. In the case of Kedar Nath Lal v. Ganesh Ram AIR 1970 SC 1717 , this Court referred the earlier decision in Samarendra Nath Sinha v. Krshna Kumar Nag AIR 1967 SC 11440 and observed: (Kedar Nath Lal case, SCC p.792, para 17) 17. .'16....The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so it must bind the person driving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder v. Monohar (1887-88)15 I.A. 97 where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well-established that the principle of lis pendens applies to such alienations.(See Nilkant v. Suresh Chandra 12 I.A.171 and Moti Lal v. Karrabul-Din (Samarendra Nath Case, AIR p.1445 para 16). 30. In the light of the settled principles of law on the doctrine of lis pendens, we have to examine the provisions of Order 1, Rule 10 of the Code of Civil Procedure. Order 1, Rule 10 which empowers the Court to add any person as party at any stage of the proceedings if the person whose presence before the court is necessary or proper for effective adjudication of the issue involved in the suit. 32. Considering the aforesaid provisions, this Court in the case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay & Ors. 1992 (2) SCC 524 held as under: It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objectives. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought of relevant arguments to advance. The only reason which make it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd. (1956) 1 All E.R. 273 , wherein after quoting the observations of Wynn-Parry,J. in Dollfus Mieg et Compagnie S.A. v. Bank of England (1950) 2 All E.R. 611 , that the true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin,J. has stated: The test is 'May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights. 39. As discussed above, a decree for specific performance of a contract may be enforced against a person claimed under the plaintiff, and title acquired subsequent to the contract. There is no dispute that such transfer made in favour of the subsequent purchaser is subject to the rider provided under Section 52 of the Transfer of Property Act and the restrain order passed by the Court. 40. The aforesaid question was considered by the Calcutta High Court in the case of Kafiladdin and others v. Samiraddin and others, AIR 1931 Calcutta 67 where Lordship referred the English Law on this point and quoted one of the passage of the Book authored by Dart, on Vendors and Purchasers Edn.8, Vol.2, which reads as under:- Equity will enforce specific performance of the contract for sale against the vendor himself and against all persons claiming under him by a title arising subsequently to the contract except purchaser for valuable consideration who have paid their money and taken a conveyance without notice to the original contract. Discussing elaborately, the Court finally observed:- This statement of the law is exactly what is meant by the first two clauses of Section 27, Specific Relief Act. It is not necessary to refer to the English cases in which decrees have been passed against both the contracting party and the subsequent purchaser. It is enough to mention some of them : Daniels v. Davison , Potters v. Sanders , Lightfoot v. Heron . The question did not pertinently arise in any reported case in India; but decrees in case of specific performance of contract have been passed in several cases in different forms. In Chunder Kanta Roy v. Krishna Sundar Roy the decree passed against the contracting party only was upheld. So it was in Kannan v. Krishan . In Himmatlal Motilal v. Basudeb the decree passed against the contracting defendant and the subsequent purchaser was adopted. In Gangaram v. Laxman the suit was by the subsequent purchaser and the decree was that he should convey the property to the person holding the prior agreement to sale. It would appear that the procedure adopted in passing decrees in such cases is not uniform. But it is proper that English procedure supported by the Specific Relief Act should be adopted. The apparent reasoning is that unless both the contracting party and the subsequent purchaser join in the conveyance it is possible that subsequently difficulties may arise with regard to the plaintiff's title. 41. The Supreme Court referred the aforementioned decision of the Calcutta High Court in the case of Durga Prasad and Another v. Deep Chand and others AIR (1954) SC 75 , and finally held:- 42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special convenants made between plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in - Kafiladdin v. Samiraddin, AIR 1931 Cal 67 (C) and appears to be the English practise. See Fry on Specific Performance, 6th Ed. Page 90, paragraph 207; also - 'Potter v. Sanders', (1846) 67 ER. We direct accordingly. 42. Again in the case of Ramesh Chandra v. Chunil Lal (1971) SC 1238 , this Court referred their earlier decision and observed:- 9. It is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at page 369 in Lala Durga Prasad v. Lala Deep Chand, 1954 SCR 360 = (AIR 1954 SC 75) viz., to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff . We order accordingly. The decree of the courts below is hereby set aside and the appeal is allowed with costs in this court and the High Court. 43. This Court again in the case of Dwarka Prasad Singh and others v. Harikant Prasad Singh and others (1973) SC 655 subscribed its earlier view and held that in a suit for specific performance against a person with notice of a prior agreement of sale is a necessary party. 44. Having regard to the law discussed herein above and 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 appeal is, accordingly, allowed and the impugned orders passed by the High Court are set aside. 45. Before parting with the order, it is clarified that the appellant after impledment as party-defendant shall be permitted to take all such defences which are available to the vendor Sawhneys' as the appellant derived title, if any, from the vendor on the basis of purchase of the suit property subsequent to the agreement with the plaintiff and during the pendency of the suit. (iv) Amit Kumar Shaw and another v. Farida Khaton and another, 2005(11) SCC 403 ; 16. The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether 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 22, 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 the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. (v) Howrah Daw Mangla Hat B.B. Samiti v. Pronab Kumar Daw 2001(6) SCC 534 ; and 7. Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, be leave of the court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karrabuldin he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannant Roy Chowdry v. Rookea Begum , a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings. 26. The plain language of Rule 10 referred to above 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. Any other party, in our view, may also seek leave as, for example, where the plaintiff filed a suit for partition and during its pendency he gifted away his undivided interest in the Mitakshara coparcenary in favour of the contesting defendant, in that event the contesting defendant upon whom the interest of the original plaintiff has devolved has no cause of action to prosecute the suit, but if there is any other co-sharer who is supporting the plaintiff, he may have a cause of action to continue with the suit by getting himself transposed to the category of plaintiff as it is well settled that in a partition suit every defendant is a plaintiff, provided he has cause of action for seeking partition. Thus, we do not find any substance in this submission of learned counsel appearing or behalf of the appellant and hold that prayer for leave can be made not only by the person upon whom interest has devolved, but also by the plaintiff or any other party or person interested. (vi) Sumtibai and others v. Paras Finance Co. Regd. Partnership firm Beawer (Raj.) through Mankanwar (Smt.) W.o Parasmal Chordia (dead) and others- 2007(10) SCC 82. Learned Counsel for the respondent, Mr. Maloo has contended that the facts which emerges from the record are as under:;