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2011 DIGILAW 237 (ALL)

Shahid Hasan v. Aqueel Ahmad

2011-01-31

SANJAY MISRA

body2011
JUDGMENT Hon'ble Sanjay Misra, J. - Heard Sri D.V. Jaiswal learned counsel for the appellant, Sri S.K. Upadhaya holding brief of Sri N.K. Rastogi for respondent nos. 1 to 8, Sri A.D. Singh holding brief of Sri Aquil Ahmad for respondent no. 9 and Sri R.R. Yadav for respondent no. 10 and 11. 2. According to Sri D.V. Jaiswal learned counsel for the appellant the appellant was defendant no. 4 in the suit. He is aggrieved by the order dated 19.9.1992 passed in Civil Appeal no. 82 of 1992 and Misc. Appeal no. 41 of 1992 whereby the Civil Appeal no. 82 of 1992 has been allowed and the Commissioners report paper no. 45-C and preparation of final decree has been set aside and the matter was remanded to the Trial Court. He is also aggrieved from the direction of the appellate court for preparation of Kurras of all the co-sharers in view of paper no. 39-A which was a compromise entered into between the parties. The appellate court had directed the Trial Court to issue fresh commission for preparation of partition scheme in view of the compromise paper no. 39-A. The impugned order also has allowed the appeal no. 41 of 1992 whereby it has allowed the application filed under Order 1 Rule 10 CPC by Shoib Ahmad for being impleaded as a party in the proceedings. 3. According to Sri Jaiswal the compromise paper no. 39-A was subject matter of challenge and by an order dated 27.6.1984 passed in Misc. Case no. 8 of 1983 the Ist Additional District Judge, Moradabad found that the compromise had been signed only by defendant nos. 1,2,3 and 5 whereas defendant no. 4 (appellant herein) had not signed the compromise hence he was not a party to the compromise and the Kurras could not be prepared in view of the compromise. The revisional court had rejected the review application filed by the respondents. Against the aforesaid order dated 27.4.1984 passed in Case no. 8 of 1983? a writ Petition no. 12749 of 1983 was filed which was dismissed by this court on 20.10.1983. 4. According to Sri Jaiswal when that matter relating to compromise paper no. 39-A had attained finality there was no occasion for the appellate court to direct preparation of Kurras of the co-sharers in view of the compromise paper no. 39-A. 5. a writ Petition no. 12749 of 1983 was filed which was dismissed by this court on 20.10.1983. 4. According to Sri Jaiswal when that matter relating to compromise paper no. 39-A had attained finality there was no occasion for the appellate court to direct preparation of Kurras of the co-sharers in view of the compromise paper no. 39-A. 5. In so far as the application under Order 1 Rule 10 CPC is concerned Sri Jaiswal submits that one of the co-sharers had sold his share to one Shoaib Ahmad who had filed application for impleadment. According to Sri Jaiswal, Shoaib Ahmad would step into the shoes of his vendor and therefore he was not a necessary party and the court below had committed an error in allowing the impleadment application. 6. Having considered the submission of learned counsel and perused the records it is quite apparent that the paper no. 39-A alleged to be a compromise was subject matter of proceedings in appeal and thereafter in writ petition. Review was also filed. The application 39-A was found to have been signed and verified only with respect to defendant nos. 1,2,3 and 5. Defendant no. 4 was not a party to the compromise but he was a party in the proceedings hence the Kurras could not be prepared in terms of paper no. 39-A (compromise). The impugned order appears? to have ignored the fact that the compromise was not signed by the defendant no. 4 and therefore it could not be enforced against a party to the proceedings who had not signed the same. As such the direction given by the impugned order to the Trial Court to prepare the Kurras and the partition scheme in view of paper no. 39-A appears to be illegal, It is accordingly set aside. 7. In so far as the second submission is concerned the appellate court has allowed the application of Shoaib Ahmad to be impleaded as a party in the proceedings for preparation of the partition scheme. Shoaib Ahmad is admittedly the purchaser from one of the co-sharers. In a suit for declaration or injunction a subsequent purchaser may have the protection under the Transfer of Property Act? and under facts and circumstances of a case may or may not be allowed to be impleaded as a party. Shoaib Ahmad is admittedly the purchaser from one of the co-sharers. In a suit for declaration or injunction a subsequent purchaser may have the protection under the Transfer of Property Act? and under facts and circumstances of a case may or may not be allowed to be impleaded as a party. But where in a suit for partition a final decree is being prepared and shares of the co-sharers is being defined for being put in possession even a subsequent purchaser from a co-sharers, if his sale deed is not challenged on any other ground, would be entitled to be made a party therein for the reason that he cannot be alloted a share behind his back to which he may not agree. He having stepped in the shoes of the co-sharer would have all equal rights of seeking partition of the property by metes and bounds and therefore he was a necessary party in the execution proceedings for the preparation of final decree. 8. The view taken by the appellate court that Shoaib Ahmad should be impleaded as a party does not suffer from any error in law. The aforesaid finding and order for impleadment of Shoaib Ahmad is accordingly confirmed. 9. The appeal is accordingly disposed as above. 10. No order is passed as to costs.