Sudarshan Kumar Mahajan vs Shammi Kumar

Sarojnei Saksena, J.—This order will dispose of Civil Revision Nos. 782, 853 and 921 to 924, all of 1994, as the question which arises for consideration therein is common. The petitioner has filed these petitions against the impugned orders whereby his petitions filed under Order 1 Rule 10, Code of Civil Procedure, have been dismissed.

Short facts of the case are that petitioner''s father Harbans Lal filed a suit for rendition of accounts against Union of India and others on the allegations that a Muslim evacuee left behind a garden and Industrial establishment No. 2 at Gurdaspur on the partition of the country. There was no demarcation between the compounds of industrial establishment No, 2 and the garden. The garden was allotted to Smt. Balwant Kaur and Industrial establishment No. 2 was leased out in open auction to Harbans Lal''s son Sudarshan Kumar vide order dated October 9, 1964 Exhibit P1. Later on, allotment of the garden to Smt Balwant Kaur was cancelled by the Rehabilitation Department and Industrial establishment No. 2 being the evacuee property was transferred to Harbans Lal in lieu of compensation of the property left by him in Pakistan. Balwant Kaur filed a writ petition in the High Court, which was also dismissed. Thus, the property allotted to her was reverted and vested in the Central Government and her possession and that of her transferees of the said property became illegal. Thereafter they were liable to pay damages/rent/compensation etc. to the Government. Harbans Lal claimed possession of the compounds attached to Industrial establishment No. 2, which was also claimed by Balwant Kaur, being its allottee. Dispute arose between the two. Harbans Lal filed a suit for specific performance of agreement against Union of India, which was decreed in his favour. He was also held entitled to occupy Industrial establishment No. 2, which meant three rooms and compounds, outer alignment of the plot being 50'' x 40''. Union of India was realising rent/damages/compensation from the illegal occupants of the property allotted to Balwant Kaur. Hence Harbans Lal filed a suit for rendition of accounts. The suit was decreed on July 16, 1984.

Balwant Kaur transferred the land allotted to her to different persons. Petitioner is a purchaser from that transferee. Respondent No. l filed a suit against Punjab State and Union of India for a declaration that he is owner in possession of residential house constructed on that land. During the pendency of that suit, the said respondent obtained stay order against the aforesaid defendant-respondents from dispossessing him from the disputed area. Sudarshan Kumar son of Harbans Lal filed execution petition to execute his decree for specific performance of agreement against Union of India. He also filed a petition under Order 1 Rule 10, Code of Civil Procedure, for impleading him in the civil suit filed by respondent No. 1 for declaration of his title in the disputed property. By the impugned order, his petition was dismissed.

In this petition Sudarshan Kumar alleged that the suit property is part of Industrial establishment No. 2 allotted to Harbans Lal Mahajan. The plaintiff has no right, title or interest in the same because allotment in favour of Balwant Kaur was duly cancelled. Harbans Lal died on January 31, 1991, and Sudarshan Kumar applicant is his only legal heir and representative by virtue of Will dated August 8, 1988. He averred that in order to adjudicate and settle the dispute of the suit property, it is necessary that he should be impleaded as a defendant.

This petition was contested by respondent No. l. By the impugned order, petitioner''s petition filed under Order 1 Rule 10, Code of Civil Procedure, was dismissed, on the ground that the plaintiff is dominus litus. The petitioner cannot be impleaded as a defendant against his wishes. Further, the petitioner had not been able to prove prima facie that the suit property is part of Industrial establishment No. 2, which was allotted to Harbans Lal Mahajan.

Petitioner''s learned counsel contended that he filed execution petition to execute the decree of specific performance of contract, wherein the Union of India is resisting the execution on the ground that in the suit filed by respondent No. l against Union of India, stay order has been passed against the defendants not to dispossess respondent No. l. While in the suit filed by respondent No. l, he is not allowed to be impleaded as a party. He pointed out that this point is to be adjudicated upon whether the suit land is part of Industrial establishment No. 2. If in the suit he is allowed to be impleaded as a defendant, he will get an opportunity to prove that the suit property is a part of Industrial establishment No. 2. which is owned by him and he is claiming its possession. He further clarified that Balwant Kaur, after the alleged allotment, divided that parcel of land into various plots, sold it to various purchasers who constructed residential houses thereon and later on sold those houses to various persons. Respondent No. l is one of them. Unless an opportunity is given to the petitioner to prove that the land on which the disputed constructed house now stands is part and parcel of Industrial establishment No. 2 Gurdaspur, his decree cannot be satisfied in the execution proceedings. Since respondent No. l is not a party and cannot be impleaded as a party, he cannot prove this fact in those proceedings. Hence, according to him, for a just decision of the case and to establish the identity of the disputed property, he is not only a proper party but a necessary party to the suit. The trial Court has wrongly dismissed his petition.

Respondents'' learned counsel vehemently opposed the prayer and contended that since both the properties are different, the petitioner cannot be permitted to be impleaded in this suit as a defendant against the wishes of the plaintiff.

From the facts stated above, it is evident that the identity of the property can be established only after evidence is adduced by the parties to prove that the suit property is or is not a part of Industrial establishment No. 2, which was allotted to Harbans Lal against his claim for the property left by him in Pakistan. This opportunity can be given to the parties only in the suit filed by respondent No. l. In somewhat similar circumstances, this Court has held in Ved Kumar Vs. Smt. Raj Rani Bhati and Others, that if the Court finds that the petitioner''s presence is necessary to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit, such a party can be impleaded to avoid multiplicity of suits. In this case also it is highly inequitable to relegate the petitioner to seek redress by filing a separate suit when to settle the disputed question whether the suit property is part of Industrial establishment No. 2 allotted to Harbans Lal or not, and to effectually and completely adjudicate upon this fact, the petitioner ought to have been allowed to be impleaded as a defendant under Order 1 Rule 10(2), Code of Civil Procedure.

For the foregoing reasons, these petitions are allowed: the impugned orders are set aside. It is ordered that the petitioner be impleaded as a defendant in the Civil suits filed by respondent No. 1 in each case.