Mainpal and Others vs Yogendra Singh and Others

Rajesh Tandon, J.—Heard Sri Nagesh Agarwal, counsel for the revisionists and Sri M.S.Tyagi, counsel for the respondents.

By the present civil revisions, the revisionists have prayed for setting aside the order dated 26.09.2006 passed by the Addl. District Judge/1st FTC Roorkee, District-Haridwar in Original Suit Nos.41 /2004, 40 of 2004, 39 of 2004 Yogendra Singh v. Teerath Singh whereby the application filed by the revisionists under Order 1 Rule 10(2) and Section 151 of the Code of Civil Procedure, 1908 has been dismissed.

Briefly stated, three suits were filed by the plaintiffs respondents being Suit Nos.41/2004, 40 of 2004, 39 of 2004 Yogendra Singh v Teerath Singh against the respondent No.2 - Teerath Singh praying for decree of the specific performance of agreement to sell dated 07.07.2003,17.06.2002 and 30.12.2000.

According to the plaintiff, he is the Bhumidhar of land Khasra No.355 total area 1.692 Hectare and defendant-Teerath singh has succeeded in the consolidation proceedings and the land of Khasra No.356 was allotted in his favour. After the said allotment, during the consolidation proceedings, the defendant-Teerath Singh wanted to sell the plot in favour of the plaintiff regarding 1/5th portion of the land on a sale consideration of Rs. 1,00,000/-, Rs. 1,00,000/-, Rs.90,000/- and as such the agreement to sell was executed on 7th July, 2003,17th June, 2002 and 30th January, 2000 respectively and a sum of Rs.75,000/- was given as advance.

During the pendency of the suit, application under Order 1 Rule 10 was filed on behalf of the revisionists for impleadment on the ground that Teerath Singh has got only 1/4th Share and the rest of the share belong to the revisionists and as such, they may be impleaded as a party in the suit proceedings.

The said application was objected by the plaintiff on the ground that Teerath Singh has already been allotted during the consolidation proceedings and no objections were taken by the revisionists, the proceedings for consolidations were already finalized and as such the matter is barred by principles contained u/s 49 of the Consolidation of Holdings Act.

The trial Court has rejected the application on the ground that the revisionists have no right to get themselves impleaded.

Counsel for the revisionists has referred the judgment of Mahavir Singh v. Shri Pal (H.C.) 1986 RD 161, where it has been observed as under:

"Where the plots constituted ancestral property before the date of vesting, then the plaintiff would have acquired tenancy rights by birth in the suit plots and after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act they have become Bhumidhars like their father. In the ancestral property, all the male members upto three degrees would acquire right and that the entry in the revenue record will not be a determinative actor whether the plaintiffs acquired Bhumidhari right or not. When the lower appellate court uninhibitedly accepted the case of the plaintiffs that the suit plots constituted ancestral property of Sri Hari Singh and his sons, who are plaintiffs then the plaintiffs should have been held as co-Bhumidhars with their father.

"6. I, therefore, hold that the father of the plaintiffs was not entitled to transfer the share of the plaintiffs and to that extent the sale deed dated May 4, 1965 in favour of the defendants Nos.1 to 4 is invalid.

In the result, the appeal is partly allowed with costs. The judgment and decree of the Courts below are set aside. The suit of the plaintiff is decreed and it is declared that the sale deed dated May, 4, 1965 to the extent of shares of the plaintiffs in the suit plots is invalid and inoperative."

Counsel for the revisionists has also referred Som Prakash Shandilya & Anr. v. Civil Judge, Senior Division, Haridwar & Ors., (2005) 1 U.D. 760 where it has been observed as under:

"As far as the legality of the will is concerned, the same is not going to be decided on merit at the stage of impleadment of a party. Respondent No.2 Brij Mohan Sharma on the basis of the documents filed by him appears to be a proper party in the suit for effectual and complete adjudication in view of Order 1 Rule 10(2) CPC. A person may be added as a party to the suit if it is shown that he has a direct interest in the said property and hence his presence before the court is necessary in order to enable the court effectively and completely to adjudicate upon and settle all questions involved in the suit."

The facts of the present case are completely distinguishable inasmuch as observed by the Apex Court that in order to add the party to the suit there must be direct interest in the said property.

Counsel for the respondents has also referred the judgment of the Apex Court in Kasturi v. Iyyamperumal and others, 2005 (1) ACJ 640 (S.C.) : 2005 (2) CCC 379 (S.C.) : (2005) 23 LCD 1473 where it has been observed as under:

"In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property form the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party."

I fully agree with the observations of the Apex Court that in a suit between seller and buyer, the interest of third party being not involved, the application for impleadment cannot be allowed.

However, it will be open for the their title declared by a competent Court of law and in case the revisionists are able to get their share/title declared, it is open for the Civil Court under Order 1 Rule 10(2) of the CPC to exercise the discretion at any time, if he considers proper for adjudicating the matter.

In view of the aforesaid observations, I find no merit in the revisions. Revisions lack merit and are dismissed. No order as to costs.