Punjab-Haryana High Court
Smt. Madhu Ganeriwala vs Shiv Kumar on 12 February, 1998
Equivalent citations: (1998)120PLR614, 1999 A I H C 1494, (1998) 3 CIVILCOURTC 712, (1998) 2 RECCIVR 177, (1998) 4 ICC 448, (1999) 2 CURCC 317, (1998) 2 CURLJ(CCR) 277, (1999) 1 LANDLR 96, (1998) 120 PUN LR 614
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. This regular second appeal is directed against the judgment and decree passed by the learned Ist Appellate Court (Addl. District Judge, Sirsa) dated 31.7.1997. Notice of motion in this appeal was issued by Shri N.C. Khichi, J. vide order dated 7.8.1997 returnable on 6.10.1997. Hearing of the appeal was adjourned on the request of the learned counsel for the parties. Mr. Jaswant Jain, Advocate sought leave of the Court to file an application under Order 1 Rule 10(2) of the Code of Civil Procedure in the regular second appeal. According to his contention the applicant was necessary party to the appeal and any decision in appeal would adversely affect his interest. Leave prayed for was granted and th application for impleadment of this applicant was ordered to be registered and listed for arguments. Arguments were heard on this application and the judgment was reserved, while the appeal was directed to be listed for 20.4.1998 for hearing.
2. In view of the above circumstances, it has become necessary to decide this application prior to the decision in the appeal. In order to appropriately determine the controversy in issue in the present application, it would be necessary to refer to the facts giving rise to the regular second appeal.
3. Krishan Kumar and four others had filed a suit against Kailash Parshad Ganeriwala and eight others for declaration to the effect that as per family settlement between the parties, plaintiffs No.l to 3 in the suit had become owners in possession in equal shares of the land to the extent of l/3rd share, plaintiff No,4 in the suit has become owner in possession of l/3rd share and plaintiff No. 5 had become owner in possession of the land to the extent of 1/3rd share of the total land measuring 181 kanals 15 marlas comprised in various khasra numbers detailed in the plaint in District Sirsa and revenue entries showing to the contrary were liable to be corrected. The defendants in the suit did not contest the suit and admitted the claim of the plaintiffs, as a result of which the learned trial Court passed the following judgment :-
"In view of this the parties to the suit are not at any issue on the point of law and facts. As such, the suit of the plaintiff is hereby decreed as prayed for with no orders as to costs. Decree-sheet be prepared and the file be consigned to the record room after due compliance."
4. On the basis of aforesaid judgment, the decree was drawn in favour of the plaintiffs. This judgment and decree dated 24.10.1.994 was challenged in appeal by Shiv Kumar and five others impleading the plaintiffs and the defendants in the suit as respondents in appeal. Learned Ist Appellate Court entertained the appeal as the appeal was filed with the leave of the Ist Appellate Court. The applicant claimed to be co-sharer in the suit land which was subject matter of the suit and decree passed by the learned trial Court. It needs to be noticed at this stage that the plaintiffs in the suit had originally filed the suit in regard to the land measuring 221 kanals 15 marlas, but later on by amendment had reduced the area of the land by 40 kanals leaving the land measuring 181 kanals 15 marlas. It was contended on behalf of the appellant that the appellants branch are co-owners and represent 45/900 share out of the suit land as per share described in the memo. Of appeal. It is averred that till date no partition had been effected between the co-shares, as such, the suit land is being jointly owned and possessed by the co-sharers, thus no co-sharer can claim any specific part of the land in his possession and no co-owner can transfer any specific khasra numbers commonly owned and possessed by other co-owners. The applicant claims that he was necessary party to the suit and consequently, the judgment and decree is liable to be set aside.
5. Learned Ist Appellate Court found that it was not disputed that the parties are closely related and the land which is subject matter of the decree is part and parcel of the land at one time commonly owned and possessed by the parties. This has been so recorded in paragraph 6 of the judgment of the Ist Appellate Court.
6. Learned trial Court while nlacing reliance on the case of Gurdev Kaur and Anr. v. Mehar Singh and Ors., (1990-1)97 P.L.R. 334, Bhup Singh v. Ram Singh Major and Ors., (1996-1)112 P.L.R. 26, and Chand Kaur v. Raj Kaur, (1996-3)114 P.L.R. 523, accepted the appeal of the appellants and set aside the judgment and decree dated 24.10.1994. The present appeal is directed against this judgment and decree. Lekh Raj applicant has filed the application for impleadment as party in this regular second appeal for the first time on the ground that the decree-holders in the suit after passing of the decree in their favour on 24.10.1994 had sold the land measuring 47 kanals 4 marlas vide two different sale-deeds dated 29.12.1995 in favour of the applicant for a sum of Rs. 4,20,000/-. Mutation in furtherance to the sale-deed has been duly sanctioned in favour of Lekh Raj. It is stated that the appeal was filed much later i.e. on 8.2.1996 by the present applicant. The appellant claims to have interest in the property and thus he is necessary party to the present appeal.
7. To this application though no reply was filed but the learned counsel appearing for the appellants supported the application by contending that the applicant should be impleaded as party, he being bona fide purchaser, while on the other hand, the learned counsel for the respondents submitted that the applicant is neither necessary nor proper party to these proceedings and has no cause to be impleaded as party to the present appeal.
8. I have heard the learned counsel appearing for the parties on this application at some length.
9. At the outset it becomes necessary to carefully scrutinise what is the interest of the applicant in the suit property. Admittedly, he is a. purchaser of 47 kanals 4 marlas of land allegedly sold to him by Krishan Kumar etc. out of the total land measuring more than 181 kanals. As already noticed, the parties to the suit and the appellant before the first Appellate Court are closely related persons and are admittedly the co-sharers of the land measuring 181 kanals and even more. The applicant obviously cannot claim any better title than what Krishan Kumar has in the property in dispute. Even share of Krishan Kumar is to be gone into the pending proceedings. Prima facie it is averred that Krishan Kumar has a share in the land more than what has been sold to the applicants. Thus, the applicants, firstly have no better title to the property than Krishan Kumar and cannot even claim a share more than the share of Krishan Kumar in the property in question. The resultant effect is that Krishan Kumar and the applicants have not only similar but an identical interest in the property in question. The right of Krishan Kumar only would be controlled in the present suit as to share and possession of the land but the findings cannot be with regard to the alleged sale deed executed by Krishan Kumar in favour of the applicant. This question neither arises before the Court nor its determination would be necessary to give effective and complete relief to the parties to the suit. May be the applicants have an independent remedy and such a remedy is in no way dependent upon the present case.
10. The applicants are not co-owners in that sense of the term. They are admit- tedly not the ascendants from the same forefathers nor are brothers of the same family. This relationship is restricted to the parties to the suit and the appellant before the first Appellate Court. The basic questions involved in the present case are family settlement, its effect, joint possession of the co-owners and their respective shares which require determination and adjudication by the Court. For determination of any of these questions the applicant is neither necessary nor even a proper party. In somewhat similar circumstances this Court in the case of Jaspal Kaur v. Hazara Singh and Anr., Civil Revision No. 3907 of 1997 decided on 6.2.1998, after detailed discussion of the law on the subject declined the application for impleadment. At this stage it may be relevant to refer to the following observations of the Court for proper application of the principles governing the subject to the present case :-
" Applying the above principles, which have been reiterated with approval from time to time to the facts of the present case, it becomes evident that the trial court has fallen in error of jurisdiction in allowing the application. It is admitted case that the applicant has no interest in the property and she only wishes to recover the amount due to her from the parties to the suit. For this purpose she has already filed a suit, which is pending. The mere fact that she wishes the property in question to remain intact security for execution of a decree which may ultimately be passed in her favour, the provisions of Order 1 Rule 10 C.P.C. would not be attracted. May be, the applicant is entitled to other relief in her own suit. Learned counsel for the respondents has not been able to demonstrate as to how the presence of the respondent No. 2 would help the Court in effectively and completely adjudicate upon the matter in dispute. The applicant/respondent No. 2 on the face of it can neither be termed as necessary or proper party. The basic rule that the plaintiff is the dominus litus has some exceptions to it but such exceptions rather fall in a narrow compass. Satisfaction of the Court based upon above consideration is pre-requisite to allow such application. The applicant is a total stranger to the proceedings and does not claim any interest in the subject-matter of the suit nor can it be said that any question which would directly affect her interest falls for consideration of the Court in the present suit. The allegations made in the application per se cannot constitute valid reasons for her impleadment in the present suit."
11. At this stage it may be more appropriate to refer to the case of Sarvinder Singh v. Dalip and Ors., (1996)5 Supreme Court Cases 539 wherein the Hon'ble Supreme Court held as under:-
"The respondents undisputedly cannot challenge the legality or the validity of the will executed and registered by Hira Devi on 26.5.1952. Though it may be open to the legal heirs of Rajender Kaur, who was a party to the earlier suit, to resist the claim on any legally available or tenable grounds, those grounds are not available to the respondents. Under those circumstances, the respondents cannot, by any stretch of imagination, be said to be either necessary or proper parties to the suit. A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the disputes. In either case the respondents cannot be said to be either necessary or proper parties to the suit."
12. In the present case the applicants have no right to challenge the factum of partition between the parties, their share and legality of the family settlement between the parties. He is a total stranger to the family and to the matters in issue involved in the suit before the trial Court. The relief, if any, the applicants can claim is against Kewal Krishan to the extent of the land sold together and is part of the property in dispute. The decree was passed in favour of the co-owners originally which has been set aside in appeal on the plea of another admitted co-owner and j stranger like the applicant cannot claim interest in the present proceedings.
13. The learned counsel for the non-applicant-respondent while relying upon the case of a Full Bench of the Rajasthan High Court titled Hardeva v. Ismail and Ors., A.I.R. 1970 Rajasthan 167 and a judgment of this Court in the case of Banarsi Dass Durga Prashad v. Panna Lal Ram Richhpal Oswal and Ors., A.I.R. 1969 Punjab & Haryana 57 argued that a person cannot be a necessary party to the subsequent proceedings if he was not a necessary party to the suit itself. I am in full agreement with the view expressed in the two judgments. The present applicant cannot be held to be a necessary party to a suit between the co-owners based on a family settlement. Firstly, he is total stranger to the proceedings and family and secondly, he cannot be impleaded as a party merely because he seeks adjudication of a collateral matter to the present proceedings.
14. The reliance by the learned counsel for the applicant on the case of Rajinder Singh v. Jaswant Singh, 1987 Punjab Law Journal 68 and Notified Area Committee, Buria v. Gobind Ram Lachman Dass and Ors., A.I.R. 1959 Punjab 277, have no application to the present case. In that case the Court observed that necessary party who was not originally impleaded in appeal on account of bona fide mistake could be subsequently impleaded by the appellate Court and the powers of the Appellate Court are wide enough. In the case of Rajinder Singh (supra) both the plaintiffs and applicants were claiming interest in the property on the basis of the agreement from one and the same party which are admittedly not the facts in the present case.
15. For the reasons afore stated, I have no hesitation in coming to the conclusion that the applicant is neither a necessary nor a proper party to the appeal. Of course he may have a right to take recourse to such other proceedings as are available to him in accordance with law. Any observations made in this order would be without prejudice to the rights and contentions of any of the parties including the applicant. Consequently, the application under Order 1 Rule 10(2) of the Code filed by Lekh Raj applicant is dismissed, without any order as to costs.