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1996 DIGILAW 792 (RAJ)

Rohit Kumar v. Prabhash Chandra Sharma

1996-07-26

P.C.JAIN

body1996
Honble JAIN, J – The petitioners have filed this revision petition against the Order dated 28.11.1995 of the learned Addition Civil Judge No. 1, Udaipur South, Udaipur passed in Civil Original Suit No. 18 of 1995, whereby the learned Additional Civil Judge has dismissed the application filed by the petitioners u/ O 1, R. 10 CPC. (2) The relevant facts necessary for the disposal of this revision petition may be stated as under: (3) The petitioners are the sons of Bodhpal Singh and constituted a Joint Hindu Family along with Bodhpal Singh. Bodhpal Singh filed a civil suit for ejectment against defendant -respondent No. 2 in the Court of the learned District Judge, Udaipur on 17.12.1991 on certain grounds. This suit was filed through respondent No.1, who was an advocate of Shri Bodhpal Singh. During the pendency of the above suit, respondent No. 1 Shri Prabhash Chandra Sharma also filed a civil suit for specific performance against Shri Bodhpal Singh of the alleged agreement to sell of the above suit house.The agreement is alleged to have been executed by Shri Bodhpal Singh in his favour on 5.4.1986. Eventually, the above suit was decreed on 15.11.1994 . According to the petitioners, the respondent No. 1 took the advantage of his position and fraudulently prevailed over Shri Bodhpal Singh s to execute the sale deed for petty consideration in his favour and filed a suit for speci- fic performance. Bodhpal Singh did not context the suit.A decree was, therefore, passed with the post- haste. The petitioners when came to know about the collusion and fraudulent agreement and decree, they challenged the same by filing a suit in the Court of the learned District Judge, which has been transferred to the Court of the learned Additional District Judge No. 2,Udaipur and is still pending. (4) The petitioners have further stated that till today, no sale deed has been executed by Shri Bodhpal Singh in favour of respondent No. 1 in pursuance of the decree obtained by the latter. The learned District Judge in the suit filed by the petitioners has also passed an order maintaining the status quo. The above orderstill continues. The petitioners, therefore, moved an application before the learned trial Court for beling impleaded as parties in the suit No. 18 of 1995 pending in the court of the learned Addl. Civil Judge (Junior Division) No.1, Udaipur South, Udaipur. The above orderstill continues. The petitioners, therefore, moved an application before the learned trial Court for beling impleaded as parties in the suit No. 18 of 1995 pending in the court of the learned Addl. Civil Judge (Junior Division) No.1, Udaipur South, Udaipur. (5) In the above suit, the Court has already substituted non- petitioner No. 1 in place of Shri Bodhpal Singh.The suit is against Major Herald Filamen. The learned trial Court by the impugned order dated 28.11.1995 dismissed the application of the petitioners. The learned trial Court observed that the above suit was filed in the year1991 by Bodhpal Singh against Herald Filamen. The petitioners alleged that Bodhpal Singh was not of sound mental condition since 1985. He was, therefore, not competent to have executed the agreement to sell in favour of respondent No, 1. The respondent No. 1 has obtained a collusive decree against Bodhpal Singh and on that basis, he has got his name substituted in place of Bodhpal Singh in the above suit. (6) According to the petitioners, since the above property was a Joint Hindu Family Property or it was constructed by Bodhpal Singh with the funds supplied by his father or his sons, Bohpal Singh was not competent to have alienated the above property in any manner whatsoever in favour of respondent No.1. The petitioners, therefore, by moving an application u/O 1, R.10 CPC had a legitimate right to be impleaded as parties in the above suit as they are interested and has got right and interest in respect of the above property. (7) The respondent No. 1 himself appeared and submitted that the petitioners though made the wild allegations that the above property was not the personal property of Bodhpal Singh but did not produce any iota of evidence to substantiate their case that the above property was the Joint Hindu Family Property. The plot was purchased by Bodhpal Singh and by obtaining loan and availing other sources, he constructed the house. It is very important to note that Bodhpal Singh was medically examined by a team of Medical Officers and he was found physically fit and competent to take a rational view. Bodhpal Singh has admitted to have executed the above agreement to sell and when respondent No. 1 filed the suit for specific performance, Bodhpal Singh did not contest the same as he had adhered to this transaction. Bodhpal Singh has admitted to have executed the above agreement to sell and when respondent No. 1 filed the suit for specific performance, Bodhpal Singh did not contest the same as he had adhered to this transaction. Bodhpal Singh has also filed the written statement and he has reiterated that the house belonged to him and that he voluntarily and of free-will sold the same to respondent No.1. The learned trial Court, therefore, committed no jurisdictional error warranting any interference in this revision. (8) I have considered the rival submissions made at the bar. The suit originally filed by Bodhpal Singh against Herald Filamen, is a suit for eviction. There is no dispute that Herald Filamen was the tenant in the above suit premises. He was let out the above premises none other than by Bodhpal Singh. Bodhpal Singhs written statement and his stand as disclosed in the above litigation cannot be glossed over when respondent No. 1 obtained the decree in respect of the suit for specific performance of the contract executed by Bodhpal Singh in his favour. The respondent No.1 was allowed to e substituted as plaintiff in the said suit in place of Bodhpal Singh. (9) In my opinion, the frame of the suit as regards the necessary parties is complete.Prima facie, the petitioners have not shown any ground which could persuade the learned trial Court to take the view that they have got even a remote connection with the above property. Bodhpal Singh has categorically stated that the house belonged to him and that he alienated the same to respondent No. 1 of his free will and for consideration. (10) For the above reasons, I find no force in this revision petition and it is hereby dismissed with no order as to costs.