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1. Instant revision petition has been preferred by the petitioner impugning the order dated 26.02.2019 rendered by the learned Additional District Judge, Gurugram, whereby his application filed under Order 1 Rule 10 CPC for transposing him as co-appellant, has been dismissed.

2. Parties to the lis, hereinafter, shall be referred to by their original position in the suit.

3. The relevant facts of the case required for the adjudication of the present revision petition are that respondent No.1-Bahadur Agro Industries (P) Ltd. filed a civil suit for possession by way of specific performance and in the alternative suit for recovery and suit for permanent injunction against the petitioner-respondent Nos.2 to 13 (hereinafter referred to as defendants) for enforcement of agreement to sell dated 24.07.2006, which was decreed by the trial Court vide 1 of 25 Neutral Citation No:=2023:PHHC:126756 CR-1789 of 2019 judgment dated 12.01.2018 in favour of the plaintiff-respondent No.1 and against the defendants and a decree for specific performance of agreement to sell dated 24.07.2006 was passed with a direction to the defendants to execute the sale deed in favour of the plaintiff in respect of the suit property on receipt of the balance sale consideration within two months, failing which the plaintiff shall be at liberty to get the sale deed executed through Court. Against the said judgment and decree dated 12.01.2018, defendant No.1, namely, Narender Singh Yadav filed an appeal on 26.02.2018. Other defendants, including the present petitioner did not opt to file any appeal and they were arrayed as performa respondents by the defendant No.1. Thereafter, in the appeal, respondents No.2 to 13 have filed an application under Order 1 Rule 10 CPC for transposing their names in the array of appellants. The said application was contested by the appellant-respondent No.2 Narender Singh Yadav by filing a detailed reply and finally the said application was dismissed by learned Additional District Judge, Gurugram, vide order dated 26.02.2019 by recording the following findings:

6. He also submits that provisions of Order 23 Rule 1-A only applies for withdrawal of the suit and not for withdrawal of appeal.

7. Per contra, Sh. Aalok Jagga, learned counsel for respondent No.1 has submitted that the application filed by the petitioner for transposition is premature as the transposition is permitted under Order 23 Rule 1A CPC where appellant prefers to withdraw and then respondent can apply for transposition and since the appeal has been filed by respondent No.2/defendant No.1 only and as the appellant has not filed any application for withdrawal of his name before the appellate Court and is pursuing the appeal, therefore, no question of transposition arises in the present case and consequently, the application for transposition is premature and not maintainable. He further submitted that the petitioner has approached the lower Appellate Court by filing application for transposition by mis-stating the facts as in para 3 of the application for transposition it has been stated that there 6 of 25 Neutral Citation No:=2023:PHHC:126756 CR-1789 of 2019 is no inter se dispute between the defendants and appellant and whereas civil suit No.88 of 2011 was filed by the petitioner along with other defendants against defendant No.2/respondent No.2 wherein former claimed title to the properties of late Babru Bhan on the basis of 'will' dated 30.12.2008 whereas contrary stand has been taken by defendant No.1 Narender Singh Yadav that he is absolute owner being real brother of the deceased as Class-II legal heir as per Hindu Succession Act, 1956 as Babru Bhan has died intestate and no 'will' was executed. Therefore, there is inter se dispute between them. He further submitted that even in the appeal itself, the appellant has submitted that there is inter se dispute between the defendants and separate statements were filed before the trial Court in the suit filed by plaintiff/respondent No.1 and, therefore, appeal was filed only by respondent No.2/defendant No.1 and since it is the own case of the appellant that there is no commonality of interest and there is dispute inter se between the parties and since the interest of the appellant and petitioner (respondent Nos.2 to 13) is totally different, therefore, no question of transposing the present petitioner as co-appellant in the appeal arises. He further submitted that no reasons have been assigned either in the application filed before the lower appellate Court or in the present revision petition as to why, although petitioner (including respondent Nos.2 to 13) have contested the civil suit and decree passed in their presence, being aware of the judgment, they have not chosen to file appeal under Order 47 Rule 1 CPC and since no appeal has been preferred by the petitioner, now he cannot be transposed as appellant.

"Requires detailed consideration.

Admit.

Further proceedings before the First Appellate Court shall remain stayed.

To be listed within one year."

10. Before proceeding further in the matter, this Court deems it appropriate to give certain facts pertaining to long back history of the case required for the proper adjudication of the present revision.

11. One B.B. Yadav entered into an agreement to sell dated 24.07.2006 with Plaintiff-Bahadur Agro Industries Limited in respect of certain land which was allotted to him vide allotment letter dated 08.05.1979 by the Haryana Government in recognition of his receiving a Gallantary Award, who died intestate in the year 2010. In the year 2001, the said land became a subject matter of acquisition proceedings initiated by the Haryana Government and subsequent thereafter as well. The matter was reached upto Hon'ble Supreme Court and the civil appeal filed by the State Government was finally dismissed in the year 2015. In the meanwhile, Respondent No.1 got published the public notice in the newspaper to know the whereabouts of legal heirs of B.B. Yadav so that matter may be contested before the Supreme Court and his legal heirs perform the remaining part of agreement to sell. In terms of public notice, Respondent No.2-Narinder Singh approached the Director of Plaintiff-Industry and stated that he is the sole legal heir of B.B. Yadav. Plaintiff has never admitted the alleged claim of the defendant No.1 to be the sole legal heir of B.B. Yadav. No claim of any 9 of 25 Neutral Citation No:=2023:PHHC:126756 CR-1789 of 2019 kind whatsoever was ever lodged by the defendant Nos.2 to 13 in respect of said land and/or in pursuance of said public notice at any point of time. When defendants Nos.2 to 13, along with respondent No.1, refused to perform their part of Agreement to Sell and stated that Agreement to Sell is fake and fictitious, plaintiff filed the suit and decreed in his favour and defendant No.1-Narinder Singh preferred the appeal and the remaining defendants were made proforma respondents on whose behalf the application under Order 1 Rule 10 CPC was filed with a prayer to transpose them as co-appellants. Firstly, the interest of the defendants is totally conflicting to each other as on the one hand, Narinder Singh is showing himself as the sole legal heir and on the other hand, other defendants, on the basis of Will dated 30.12.2018, stated that they have 1/2 share in the suit property and the same is not common, so, there is no reason as to why the present petitioner and other defendants who have not preferred the appeal, be transposed as co-appellants as they have not chosen to file appeal challenging the judgment and decree dated 12.01.2018. Since they have also not chosen to file cross-objections on receipt of notices in the appeal, they cannot be permitted to be transposed as co-appellants. No reasons have been assigned either in the application or in the revision petition as to for what reasons they did not prefer an appeal and what prevented them to do so. Since they are parties in the appeal being proforma respondents, they still have a right to challenge the findings recorded by the trial Court. A perusal of judgment and decree dated 04.01.2019 passed by the Court of learned Civil Judge (Junior Division), Gurugram, in the 10 of 25 Neutral Citation No:=2023:PHHC:126756 CR-1789 of 2019 case of Harshvardhan and others v. Narender Singh and others (Civil Suit No.88/2011) filed for declaration with consequential relief of permanent injunction, would reveal that this suit was filed by Harshvardhan and others (co-defendants) against Narender Singh Yadav and others wherein Harshvardhan claimed title to the properties of late Babru Bhan on the basis of 'will' dated 30.12.2008 whereas the claim of defendant No.1/Narender Singh Yadav was that he is the absolute owner being real brother of the deceased and no 'will' was executed. The said judgment and decree dated 04.01.2019 is stated to be pending before the lower appellate Court and there is dispute which is pending between the defendants inter se. Even in the appeal filed by appellant/defendant No.1 that there is inter se dispute between the plaintiff and the defendants. Both, respondent No.2/defendant No.1/appellant and the petitioner/other defendants filed separate written statements before the trial Court in the suit filed by plaintiff/respondent No.1 and the relevant portion thereof is reproduced as under:-

30. The aforesaid judgment has been reiterated by Hon'ble Supreme Court in Lachhman v. G. Ayyasamy-2016(13)-SCC-165.

31. As per provision of Order 23 Rule 1A CPC, when the plaintiff withdraws his suit and any of the defendant wants to be transposed (transfer himself as plaintiff) AND if there is any substantial question to be decided as against other defendants, the application for transposition may be allowed and defendant may be transposed as 22 of 25 Neutral Citation No:=2023:PHHC:126756 CR-1789 of 2019 plaintiff in the suit. For example, A filed a suit against B, C and D, after some time, A wants to withdraw his suit, then B files an application to Court to transpose him as plaintiff while deciding this application the Court has to decide whether the defendant (applicant) has any substantial question to be decided against any other remaining defendants in the suit.