Inder Vikram Singh vs Dr. Harinder Pal Singh

Hemant Gupta, J.—The challenge in the present revision petition is the be order passed by the learned trial Court dated 27.1.2005 whereby an application filed by the petitioner for his impleadment in the suit as defendant was declined.

The brief facts out of which the present revision petition arises, are that the plaintiff-respondent has allegedly purchased the share of one Narinder Singh Achreja in pursuance of agreement of sale dated 6.11.1995 for a total sum of Rs. 15 lacs. A sum of Rs. 2 lacs was allegedly paid as earnest money on 26.8.1995 and balance Rs. 13 lacs was paid vide two separate demand drafts dated 9.10.1995 and 11.11.1995. It is the case of the plaintiff that he was put in actual physical possession of the house, as detailed in the heading of the plaint, which was in possession of his vendor. It is also not disputed that the sale deed in pursuance of the agreement of sale has not been executed, but the documents like power of attorney, Will etc. have been executed by Narinder Singh Achreja in favour of the plaintiff. It is also pointed out that the Central Bureau of Investigation had sealed the house on 3.2.1998. Thus, the plaintiff claims possession of part of the House No. 311, Sector 9-D, Chandigarh as described in the head note of the plaint.

The applicant-petitioner alleges himself to be necessary and property party as owner in possession of part of House No. 311, Sector 9-D, Chandigarh. It is pointed out that H.S. Achreja, grand father of the applicant-petitioner herein purchased the plot and raised construction of House No. 311, Sector 9-D, Chandigarh in the year 1960-61. H.S. Achreja died on 10.9.1977 leaving behind his widow Inderjit Achreja, Bhupinder Singh Achreja, father of the applicant-petitioner and Narinder Singh Achreja, defendant No. 8. The applicant-petitioner claims the property to be Mitakshara co-parecenary and thus, he has interest in the suit property by birth. It is also contended that the applicant is in possession of a part of the house alongwith his mother and sister, whereas some portion of the house was in possession of Inderjit Achreja during her life time. Thus, the petitioner sought to be impleaded in the suit being an owner and in possession of the part of the house. The learned trial Court declined the application by observing to the following effect:

xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx

However, in the present case the applicant wants to be impleaded as a party claiming himself to be co-owner of the house in question. However, the plaintiff has taken the possession of the portion of the house from N.S. Achreja, another co-owner under an agreement to sell. That portion was later on sealed by the CBI in a raid. This portion was in possession of the plaintiff and the plaintiff is claiming the possession of that portion. The question of ownership is not to be decided in the present case and dispute regarding the ownership is separately pending. The applicant Inder Vikram Achreja has, therefore, no concern with the present controversy. The counsel for the applicant has failed to show as to how he is necessary or proper party in the present litigation. Therefore, he cannot be impleaded against the wishes of the plaintiff.

xx xx xx xx xx xx xx xx xx xx xx xx

Learned Counsel for the petitioner has vehemently argued that the suit is for possession on the basis of title, therefore, the question of ownership is required to be examined in the present suit and that since the petitioner is also claiming himself to be owner of a part of the suit property in possession thereof, the petitioner is not only proper part;'' but a necessary party. It is also stated that though the suit for declaration filed by the petitioner claiming property in dispute as joint Hindu Family co-parcenary property, has been dismissed by the learned trial Court as well as by the learned first Appellate Court, but the matter is pending in second appeal before this Court and, therefore, the petitioner is required to be impleaded as party in the suit. On the other hand, learned Counsel for the respondent has vehemently argued that the entire claim of the petitioner is based upon the fact that the property in dispute is a joint Hindu Family co-parcenary property and such claim having been negated in a separate suit filed by the petitioner, therefore, the petitioner cannot seek impleadment in the present suit. It is also pointed out that another suit filed by the petitioner u/s 441 of the Transfer of Properties Act, so as to avoid the transaction of sale is pending, therefore, the petitioner cannot be permitted to-agitate the same issue in the present suit which is based on title of Narinder Singh Achareja in the suit property.

After having heard learned Counsel for the parties at some length, I am of the opinion that the question of ownership on the basis of stand of the petitioner that the property in dispute is a joint Hindu Family Co-parcenary property, has yet not attained finality. The matter is pending in the second appeal before this Court. The plaintiff has sought possession of a part of the suit property alleging himself to the purchaser from Narinder Singh Achreja. The question whether the plaintiff is owner of a part of the suit property and to what extent is a question which directly effects the other co-owners. It is admitted by the plaintiff that he has purchased only the share of Narinder Singh Achreja. To what extent is the share of the petitioner or his mother or the plaintiff can be determined positively and effectively if the petitioner is impleaded as party in the suit.

The finding recorded by the learned trial Court that the question of ownership is not to be decided in the present case, is not tenable. The plaintiff is claiming possession on the basis of title, therefore, without proving the title, the plaintiff cannot get a decree for possession. Though the plaintiff is dominus litis, but the plaintiff cannot resist the impleadment of the defendant whose interests are likely to be effected in any manner. The presence of the petitioner in a suit for possession arises between the parties and it will avoid multiplicity of the proceedings.

Consequently, the order passed by the learned trial court declining the impleadment of the petitioner as defendant in the suit is suffering from patent illegality and irregularity and the same is set-aside. The revision petition is allowed. The petitioner is permitted to be impleaded as defendant No. 9 in the suit for possession filed by the plaintiff-respondent.