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2007 DIGILAW 1342 (PAT)

Shakuntala Devi v. Malik Mandal

2007-08-13

CHANDRA MOHAN PRASAD

body2007
Judgment 1. This application has been filed for review of this Courts order dated 17.02.2006 whereby the petitioners prayer under I.A. No. 2451/05 under F.A. No. 35 of 1999 for adding the petitioners as party under Order I, Rule 10 C.P.C. was refused. 2. The trial court decided under Issue No. 6 that the defendant nos. 5 and 6 (respondent nos. 3 and 4 in the appeal) are son and daughter of defendant no. 1 which finding is challenged in the F.A. No. 35 of 1999 by the appellant Sant Lal who is now dead and his heirs are already on record. 3. During the appeal, the intervenor-petitioner Shakuntala Devi purchased the property from respondent nos. 3 and 4 (defendant nos. 5 and 6). The prayer of the intervenor-petitioner was rejected by this courts order dated 17th February, 2006 on the ground that the intervenor-petitioner was not a necessary party for deciding Issue No. 6 which was subject to this appeal. 4. While arguing the review petition, learned counsel for the petitioner cited the authority of the Apex Court in the case of Dhanurdhar Prasad Singh V/s. Jai Prakash University and Others, AIR 2001 SC 2552 . It was a case of devolution of estate on the death of a party and in that case the Apex Court held that the person on whom the interest has devolved was a necessary party to be added under Order XXII, Rule 10 C.P.C. though in Para-25 of the judgment. It was also held by the Apex Court that prayer for leave to add party can be made not only by a person upon whom interest has devolved but also by the plaintiff or any other party or person interested. 5. Learned counsel for the intervenor-petitioner argued that in view of the authority cited, the petitioner is entitled to be added as a party to the appeal but this was objected by the learned counsel for the opposite party on the ground that the decision cited says about only the right of the party to make an application and not that all the applications must be allowed. 6. The submissions of the learned counsel carries substantial reasons. No doubt, every party interested has a right to make an appeal but the prayer has to be allowed on the facts of each case and the laws applicable to it. 7. 6. The submissions of the learned counsel carries substantial reasons. No doubt, every party interested has a right to make an appeal but the prayer has to be allowed on the facts of each case and the laws applicable to it. 7. In the instant case, the appeal is on a limited point under Issue No. 6 as decided by the trial court that the defendant nos. 5 and 6 were the son and daughter of defendant no. 1 who had got 1/3rd share in the partition suit filed by him. Learned counsel for the opposite party argued that the defendant nos. 5 and 6 (respondent nos. 3 and 4 in the appeal) have already appeared in the appeal by filing application and they have also appeared to contest this review application. It was further submitted that the intervenor-petitioner has purchased property from the defendant nos. 5 and 6 and when defendant nos 5 and 6 are already on record as party in the appeal the presence of intervenor is not at all necessary. The further submission is that for deciding Issue No. 6 as decided by the trial court, presence of intervenor-petitioner is not at all required. 8. The learned counsel for the opposite party further submitted that the intervenor-petitioner has purchased the portion of residential house of the joint family vide Annexure-1 to the review petition which was subject to partition in the suit. In this context it was argued that a bar is created u/s 4 of the Partition Act read with Sec. 44 of the T.R Act where a person stranger to a family cannot claim possession under a purchase in the residential house unless he sues for partition for the coparcener who sold the portion of the residential house. It was submitted that the defendant nos. 5 and 6 who are son and daughter of defendant no. 1 who got 1/3rd share, sold the portion of undevided portion of the residential house to the intervenor-petitioner, hence, the intervenor-petitioner has right to possession only when he files a partition suit for that coparcener who has sold the portion of the residential house which has not been done nor can be done at this statge. 9. 1 who got 1/3rd share, sold the portion of undevided portion of the residential house to the intervenor-petitioner, hence, the intervenor-petitioner has right to possession only when he files a partition suit for that coparcener who has sold the portion of the residential house which has not been done nor can be done at this statge. 9. In support of his submissions, learned counsel for the opposite party cited the authority of the Apex Court in the case of Gautam Paul V/s. Debi Paul and Others, AIR 2001 SC 61 . 10. Thus hearing the learned counsel for the opposite party, I find that the prayer of the intervenor-petitioner has been rightly refused by this Courts earlier order dated 17th February, 2006. 11. Learned counsel for the petitioner cited the order dated 10th July, 2006 of this Court under F.A. No. 740 of 1998 wherein the present intervenor-petitioner was allowed to be added as a party under Order XXII, Rule 10 C.P.C. The perusal of the order shows that the F.A. No. 740 of 1998 was an appeal against the judgment of the trial court with respect to Item No. 3 of Schedule-ll property which was not joint family property and the intervenor-petitioner had purchased that property. Since that F.A. No. 740 of 1998 related to property which was not held to be joint, therefore, in that case the intervenor-petitioner was allowed to be added as a party in that case. 12. Thus the order dated 10th July, 2006 (Annexure-2) as cited by the petitioners counsel is on a different footing. 13. At the end, learned counsel for the opposite party submitted that, therefore, for deciding the Issue No. 6 the presence of the intervenor-petitioner is not at all required and that the vendors to the petitioner are already party in the appeal and they are prosecuting their interest. Besides this, the provisions u/ss 4 of the Partition Act and 44 of the T.P. Act also work as a bar to the maintainability of the intervenor-petitioners petition. 14. In such view of the matters, I find no substance in the review petition. It is accordingly, dismissed.