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1998 DIGILAW 38 (RAJ)

Javid Ali v. Kundan Mal

1998-01-08

SHIV KUMAR SHARMA

body1998
Honble SHARMA, J. – Instant revision impugns the order dated 20.9.1997 of the learned Additional District Judge No. 1 Jaipur City whereby the application moved u/O. 18 R. 17 CPC by the petitioner was dismissed. (2). A suit was instituted by Kundanmal, plaintiff, non- petitioner No. 1 for possession against the non-petitioner No. 2 Mahesh Chand on 5.8.1987 claiming himself to be the owner of the property being legal heir of deceased Govindi Bai. Govindi Bai expired on 21.9.1983 issueless. The non-petitioner No. 2 filed written statement and denied the avernments made in the plaint. It was further stated that Govindi Bai executed a registered will on 20.9.1983 in favour of the non- petitioner No. 2 and he was the owner of the disputed property. On the basis of the pleadings of the parties, the learned trial Court framed as many as four issues on 18.9.1989 and the case was thereafter posted for recording evidence of the plaintiff. On 3.4.1982 the plaintiff examined himself. During the pendency of the suit non-petitioner No. 2 sold the disputed property to the present petitioners on 25.6.1992. The evidence of non-petitioner No. 2 was closed on 1.12.1993 and the case was posted for recording rebuttal evidence of the plaintiff. But the plaintiff failed to lead rebuttal evidence and the case was thereafter posted for final hearing on 5.3.1994. (3). On 18.3.1994, however, the learned trial Court granted time to the plaintiff to lead evidence and the evidence of PW 2 and PW 3 was recorded and the evidence was closed. The petitioners on 25.7.1994, moved an application u/O. 22 R. 10 CPC r/w Sec. 146 CPC for impleading themselves as party in the suit proceedings. The learned trial Court allowed the application. Again on 1.9.1994, the petitioners filed three applications u/s. 65 of the Evidence Act for leading secondary evidence u/O. 18 R. 17 CPC for calling Sub-Registrar along with Register and application u/O. 18 R. 2(4) for seeking opportunity to lead evidence. The learned trial Court dismissed all the applications vide order dated 20.9.1997. (4). I have given my anxious consideration to the rival contentions and carefully perused the impugned order. I am of the view that subsequent transferee has a right to continue the dispute or to contest the suit u/O. 22 R. 10 CPC from the date on which she submitted application. (4). I have given my anxious consideration to the rival contentions and carefully perused the impugned order. I am of the view that subsequent transferee has a right to continue the dispute or to contest the suit u/O. 22 R. 10 CPC from the date on which she submitted application. He cannot claim any right prior to the date of filing of the application. (4). In Dhanna Singh & Ors. vs. Baljinder Kaur & Ors. (1), it was propounded by their Lordships of the Supreme Court that subsequent purchaser of the disputed property stepped into the shoes of the seller and if the seller had given up right to lead evidence in the suit subsequent purchaser had no right to lead evidence. I am unable to persuade myself to agree with the submissions made by the learned counsel Mr. G.S. Bafna appearing for the petitioners. Under O. 18 R. 17 CPC the Sub-Registrar can not be called in the interest of justice. The contention that the petitioner had no legal knowledge cannot be accepted as they were represented by the counsel. In my considered view the Court below has not committed any jurisdictional error and if the order is allowed to stand it would not occasion failure of justice. (5). Consequently, the revision petition fails and is hereby dismissed. Costs easy.