Punjab-Haryana High Court
Harbhajan Singh vs Sarup Singh And Ors. on 3 November, 1992
Equivalent citations: (1993)103PLR729
JUDGMENT G.C. Garg, J.
1. This revision is directed against the order of the trial Court dated November 13, 1991 whereby the application filed by one Hirbhajan Singh for being impleaded as a defendant in a suit titled as 'Samp Singh and Ors. v. Amar Singh and Anr.' was dismissed.
2. Sarup Singh and his two brothers filed a suit for declaration to the effect that they were the owners in possession of agricultural land measuring 151 Kanals 11 Marlas on account of oral partition and the defendants, their father and the grandmother had no concern whatsoever with the same, and for permanent injunction restraining the latter from forcibly taking possession of the land in question or interfering with the possession in any manner.
3. Harbhajan Singh, petitioner moved an application under Order 1 Rule 10 of the Code of Civil Procedure for being impleaded as a defendant in the aforesaid suit, stating that the plaintiffs and the defendants had connived with each other in order to cause wrongful loss to him, the plaintiffs had filed the suit in collusion with the defendants, the suit was collusive and the result of fraud and misrepresentation and that the defendants had no right to transfer the suit land in favour of the plaintiffs, the same being ancestral and joint Hindu family property. It was further stated in the application that the Petitioner was a coparcener in the suit land and the defendants had no legal right to alienate the same. The allegation of the petitioner of the property being ancestral and joint Hindu family property was denied. It was asserted on behalf of the plaintiffs that the property in question was the self-acquired property of the defendants and the petitioner had no right to move the application for being impleaded as a defendant, he being neither a necessary nor a proper party. The trial Court, as noticed earlier, dismissed the application.
4. Learned counsel for the petitioner vehemently contended that the petitioner is none else but the brother of the plaintiffs and he is not only a proper but also a necessary party and thus, he having interest in the property ought to have been impleaded as a defendant in the suit. In support of his contention the counsel relied upon Gian Chand of Kurukshetra v. Rattan Lal, 1991 H.R.R. 79. This case does not help the petitioner in any manner. It was a case where the plaintiff had filed a suit for possession by way of specific performance and an other person had filed an application for being impleaded as a defendant in the suit on the ground that he had earlier an agreement of sale in his favour about the said land. He had also filed another suit enforcing the agreement of sale between him and the defendant of the other suit for possession by way of specific performance. His application for being impleaded as a defendant was rejected by the trial Court. The High Court without deciding, whether the applicant was or was not entitled to be impleaded as a defendant, disposed of the revision only by ordering that the two suits be consolidated and disposed of together. But this is not the situation in the instant case.
5. There is no dispute with the proposition of law that a person can be permitted to join as a defendant in a suit if he is either a proper party or a necessary party or in whose absence the controversy raised in the suit cannot be effectively decided. In the present case, the petitioner is neither a proper nor a necessary party. The petitioner has already filed a separate suit which is pending disposal. It is well settled proposition that a collusive decree at best binds the parties to the litigation and it has no effect on the right, title or interest of the persons who are not the parties to it. Even if the defendants in the present case admit the claim of the plaintiffs and suffer a decree, the said decree will be binding on the parties to the lis only and not the petitioner. The petitioner has a remedy by way of a separate suit which he has already filed. Plaintiff being the dominus litus, the Court should not normally add a party against his wishes unless the presence of the applicant is necessary to enable the Court to completely adjudicate upon the question arising in the suit.
6. Even otherwise, admission of claim of the plaintiffs by the defendants is nothing but an alienation made by a father, and a son has a right to challenge the said alienation by filing a suit. It is not necessary that a son should de allowed to be impleaded as a defendant in a suit where a father intends to admit the claim in the suit filed by his other sons. It has already been held that in a suit for specific performance by a purchaser against the Karta of a family, a coparcener is neither a necessary nor a proper party. In the case in hand, even if it be assumed that the property in dispute is coparcenary property and the petitioner is a coparcenar in the same, Amar Singh defendant, the father of the petitioner and the plaintiffs, is obviously a Karta of the joint Hindu family. Any alienation sought to be made by him cannot be stalled by a coparcener in any way. Such an alienation can be challenged only by way of a separate suit. Such being the position, it cannot be said that the petitioner is a proper or a necessary party and the suit cannot be effectively decided in his absence. The petitioner having already chosen a right course by filing a separate suit, cannot be impleaded as a defendant in the suit. There is thus, no material irregularity or illegality in the order passed by the trial Court. It has also not been shown that the trial court lacked jurisdiction or exceeded in exercise of its jurisdiction. There is, therefore, no ground to interfere with the order passed by the trial Court. The revision petition consequently fails and is hereby dismissed. No costs.