Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 884 (CAL)

Sisir Kumar Das v. Abdul Salam Khan

2010-07-28

PRASENJIT MANDAL

body2010
JUDGMENT Prasenjit Mandal, J. 1. THIS application is at the instance of a third party and is directed against the order dated 30.08.2007 passed by the learned Civil Judge (Senior Division), Third Court, Howrah in Title Suit No.39 of 1998 thereby rejecting the application for addition as parties in the Title Suit No.39 of 1998 filed by the plaintiff/opposite party no.1. 2. THE brief fact is that the plaintiff/opposite party no.1 instituted the Title Suit No.39 of 1998 before the learned Civil Judge (Senior Division), Third Court, Howrah against the opposite party nos.2 to 4 for specific performance of contract and also a decree for declaration and injunction in respect of certain immovable property. In that suit, the applicant filed an application under Order 1 Rule 10(2) read with Section 151 of the Code of Civil Procedure praying for addition of parties on the ground that they are the co-sharers of the suit property and they have filed the Title Suit No.117 of 1995 for partition. As such, he has prayed for addition of parties in the suit. His application having been rejected, the petitioner has preferred this revisional application. Mr. Karar, the learned Advocate for the petitioner, submits that by purchase he has become a co-sharer of the suit property and for effective partition of the suit property, he filed the suit for partition. Subsequently, he came to know that the opposite party no.1 filed the Title Suit No.39 of 1998 for specific performance of contract for sale of immovable properties. The intending sellers had no capacity to sale more or less 8 cottahs of land as claimed by the plaintiff. They are also co- sharers by purchase and so he should be added as a party to the suit. 3. ON the other hand, Mr. Mallick, learned Advocate for the opposite party no.1, submits that this is a mere suit for specific performance of contract for sale of immovable properties. The plaintiff need not make any third party in the suit because there was no contract at all with the third party. The third party may acquire some interest in the suit property by way of purchase or otherwise; but the plaintiff is interested in the property of the intending seller on the basis of the two agreements for sale. The plaintiff need not make any third party in the suit because there was no contract at all with the third party. The third party may acquire some interest in the suit property by way of purchase or otherwise; but the plaintiff is interested in the property of the intending seller on the basis of the two agreements for sale. Moreover, the brother of the applicant filed a similar petition and that was dismissed, but no revisional application was preferred. So this application is barred by the principle of res judicata. 4. UPON hearing the rival contention of both the parties and on perusal of the materials on record, I find that the opposite party no.1 filed the suit for specific performance of contract of sale of immovable properties measuring more or less 8 cuttahs of land on the basis of two deeds of agreement for sale and non-execution of the sale deed. The plaintiff/opposite party no.1 filed the Title Suit No.39 of 1998. The applicant claims that he become co- sharer by purchase. So, he has interest in the property and so he wants to contest the suit. The scope of the Title Suit No.39 of 1998 is to determine whether the vendor had any right, title and interest to sell the immovable properties as per two agreements for sale or to what extent he has any interest in the suit properties. The applicant acquired some right by way of purchase and he filed the suit for partition. That suit is still pending. No doubt, that the applicant has acquired some interest in the suit property and so according to the decision reported in AIR 2007 SC 3169 , the applicant having interest, may be allowed to contest the suit for the purpose of determining the fact whether the intending vendor had right, title and interest in the suit property to the extent of 8 cottahs of land. The presence of the applicant is necessary to determine the lis between the plaintiff and the defendants in the suit. The argument advanced by Mr. Mallick that because of the dismissal of the similar application filed by the brother of the applicant, the present application is barred by limitation, I hold, cannot be accepted because no issue was framed or decided between the same parties. So the contention that the suit is barred by limitation cannot be accepted. The argument advanced by Mr. Mallick that because of the dismissal of the similar application filed by the brother of the applicant, the present application is barred by limitation, I hold, cannot be accepted because no issue was framed or decided between the same parties. So the contention that the suit is barred by limitation cannot be accepted. Accordingly, the impugned order, I hold, is not sustainable in law. The application, therefore, succeeds. It is allowed. Consequently, the impugned order is hereby set aside. Considering the circumstances, there will be no order as to costs.