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Judgment
R.S. Chauhan, J.—The petitioners are aggrieved by the order dated 28.9.2013 passed by Additional District Judge, Dholpur, whereby the learned Judge has dismissed the application filed by the petitioners under Order 22, Rule 10 read with Order 1, Rule 10 CPC.
The learned counsel for the petitioners has strenuously argued that during the pendency of the proceedings amongst the brothers, the petitioners had bought the share of Santosh Kumar, respondent No. 3 before this Court. His share in the property was one-third. Therefore, the said share was bought by them through a registered sale-deed. Therefore, they are vitally interested in the outcome of the civil suit filed among the respondents for partition of the property. Hence, the petitioners are a necessary party to the suit. However, the learned Judge has dismissed their application without any rhyme or reason.
Heard the learned counsel and perused the impugned order.
Admittedly, the property in question was bought by the petitioners during the pendency of the civil suit. Therefore, the transaction is clearly covered u/s 52 of the Transfer of Property Act.
Moreover, according to the learned Judge, the preliminary decree specifying the share amongst the brothers has already been passed. The said preliminary decree is under challenge before this Court. The final decree, which would divide the property by meets and bounds, is yet to be passed. Thus, it is obvious that till the final decree is passed, the specific location of the share which would fall upon Santosh Kumar (respondent No. 3), is unknown. Therefore, the specific piece of land that the petitioners will be entitled to, would be known only after the final decree is passed. According to Section 52 of the Transfer of Property Act, the transaction is subject to the final decree. Thus, the petitioners are neither a necessary, nor a property party to the suit which has been filed for partition amongst the brothers.
Furthermore, as far as the partition is concerned, the petitioners are not in a position to shed any light with regard to the partition of the ancestral property.
Thus, this Court does not find any illegality or perversity in the impugned order. This petition being devoid of any merit, is hereby dismissed. Consequently, the stay application also stands dismissed.