JUDGMENT : M.N. Bhandari, J. 1. Aggrieved by the order dated 02.12.2008, this writ petition has been filed. 2. It is stated that an application under Order 1 Rule 10 of the Civil Procedure Code (for short the Civil Procedure Code) was filed by the petitioners for their impleadment in a pending suit filed by Shri Shankar Lal. The suit for specific performance was filed against Shri Bharat Singh, who is none else but petitioners' brother. The application was filed after showing their share in the property in dispute being ancestral property. The property was originally belonging to Late Shri Karan Singh and accordingly all the brothers are in possession of their portion, however, Shri Bharat Singh alone sold the property. In view of aforesaid, the application so moved by the petitioners should have been allowed more so when the petitioners' suit to claim their ¼th share in the property has been decreed by the revenue court, pending this writ petition, though at the time of passing the impugned order, matter was pending before the court and has been decided now by the order dated 25.05.2009. A copy thereof was produced before me during the course of arguments to strengthen the argument on behalf of the petitioners. To support his contentions, learned counsel for petitioners placed reliance on the judgment of the Hon'ble Supreme Court in the case of Sumtibai & Ors. v. Paras Finance Company & Ors. reported in 2007 (3) ACJ 615 (SC) : 2007 (4) CCC 593 (SC) : 2007 (10) SCC 82 so as the recent judgment in the case of Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd. & Ors., reported in 2010 (4) CCC 295 (SC) : 2010 (3) ACJ 029 (SC) : AIR 2010 SC 3109 . 3. On the other hand, learned counsel for respondents, supporting the impugned order, submits that application moved by the petitioners under Order 1 Rule 10 of the Civil Procedure Code has rightly been dismissed. The petitioners are not party to the agreement to sale, thus they cannot seek their impleadment as party respondents in the suit. This is more so when the plaintiffs/respondents purchased the suit property after verification of the revenue record. The land in dispute is recorded in the name of Bharat Singh. The petitioners are not party to the agreement to sale, thus they cannot seek their impleadment as party respondents in the suit. This is more so when the plaintiffs/respondents purchased the suit property after verification of the revenue record. The land in dispute is recorded in the name of Bharat Singh. Defendant Bharat Singh's name was entered in the revenue record after death of his father Karan Singh. The petitioners did not challenge mutation entry immediately and it is only to frustrate the suit for specific performance that application under Order 1 Rule 10 of the Civil Procedure Code has been filed. While the suit was pending, the petitioners lately moved to the revenue court to seek their share in the property. The perusal of the order now passed by the revenue court shows collusion between defendant Bharat Singh and the petitioners as the matter was decided there without contest, though suit was barred by limitation. This is nothing but an order obtained by the petitioners Fraudulently. In view of aforesaid, the petitioners have rightly denied their impleadment in the pending suit. Reference of the judgment of the Hon'ble Apex Court in the case of Kasturi v. Lyyamperumal & Ors., reported in 2005 (1) ACJ 640 (SC) : 2005 (2) CCC 379 (SC) : 2005 (6) SCC 733 , has been given so as the judgment in the case of Anil Kumar Singh v. Shivnath Mishra @ Gadasa Guru reported in 1995 (1) CCC 531 (SC) : 1995 (3) SCC 147 . Aforesaid judgments are in regard to the scope of an application under Order 1 Rule 10 of the Civil Procedure Code. Learned counsel for respondents has further placed reliance on the judgment of the Hon'ble Apex Court in the case of S.R. Chengal Varaya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. & Ors. reported in 1994 (1) SCC 1 . Therein, issue of fraud in obtaining order has been explained. 4. I have considered submissions made by learned counsel for the parties and scanned the matter carefully. 5. The facts on record show that after the death of Karan Singh, name of Bharat Singh entered in the revenue record. With the aforesaid and immediately, an agreement was executed by him. The petitioners herein kept silence as they did not challenge opening of mutation in the name of their brother Bharat Singh. 5. The facts on record show that after the death of Karan Singh, name of Bharat Singh entered in the revenue record. With the aforesaid and immediately, an agreement was executed by him. The petitioners herein kept silence as they did not challenge opening of mutation in the name of their brother Bharat Singh. The plaintiffs/respondents filed a suit for specific performance pursuant to the agreement to sale executed by Bharat Singh. While the matter was pending from the year 2005 an application for impleadment was fifer lately in the month of November, 2008 and the petitioners simultaneously moved to the Revenue Court to get their share in the property in dispute and thereupon without a contest, order has now been passed in favour of the petitioners during the pendency of the writ petition. In the aforesaid background, I am required to consider as to whether petitioners can be said to be necessary party to the suit for specific performance when admittedly they are not party to the agreement to sale. 6. In the case of Kasturi (supra), aforesaid issue was considered and decided. It was held that as per Order 1 Rule 10 of the Civil Procedure Code, necessary party in a suit for specific performance of contract for sale are the parties to the contract and if one dies, their legal representatives and also the persons who had purchased the contracted property from the vendor. The person who claims independent title and possession adverse to title of vendor is not a necessary party. The same law was earlier propounded by the Hon'ble Apex Court in the case of Anil Kumar Singh (supra) also. Therein also, for a suit for specific performance of contract for sale of immovable property was filed. It was held that subsequent interest of the co-owner by virtue of decree obtained from the court would not entitle them to join as defendants. Paras 5, 8, & 9 of the said judgment are quoted thus : "5. Therein also, for a suit for specific performance of contract for sale of immovable property was filed. It was held that subsequent interest of the co-owner by virtue of decree obtained from the court would not entitle them to join as defendants. Paras 5, 8, & 9 of the said judgment are quoted thus : "5. In this case, since the suit is based on agreement of sale said to have been executed by Mishra, the sole defendant in the suit, the subsequent interest said to have been acquired by the respondent by virtue of a decree of the court is not a matter arising out of or in respect of the same act of transaction or series of acts or transactions in relation to the claim made in the suit. 6...... 7....... 8. The question is whether the person who has got his interest in the property declared by an independent decree but not a party to the agreement of sale, is a necessary and proper party to effectually and completely adjudicate upon and settle all the questions involved in the suit. The question before the court in a suit for the specific performance is whether the vendor has executed the document and whether the conditions prescribed in the provisions of the Specific Relief Act have been complied with for granting the relief of specific performance. 9. Sub-rule (2) of Rule 10 of the Order 1 provides that the Court may either upon or without an application of either party, add and party whose presence before the Court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit. Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined. Therefore, he is not a necessary party." 7. In the case of Sumtibai & Ors. (supra), the same issue came up for consideration before the Hon'ble Apex Court. Therein, judgment in the case of Kasturi (supra) was also considered and found to be distinguishable. Para 14 of the said judgment is quoted thus: "14. In view of the aforesaid decisions we are of the opinion that Kasturi case is clearly distinguishable. (supra), the same issue came up for consideration before the Hon'ble Apex Court. Therein, judgment in the case of Kasturi (supra) was also considered and found to be distinguishable. Para 14 of the said judgment is quoted thus: "14. In view of the aforesaid decisions we are of the opinion that Kasturi case is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced." 8. The facts of the aforesaid case are that a case for specific performance of contract of sale was against Kapur Chand who then died during the pendency of the case. Kapur Chand's wife, son etc. applied to be taken on record as legal representatives. They were impleaded as party and thereupon moved an application under Order 22 Rule 4(2) read with Order 1 Rule 10 of the Civil Procedure Code praying, inter-alia, for filing additional written statement to allow to take pleas as are available to them. The application was dismissed and thereupon matter travelled up to the Hon'ble Supreme Court. 9. In the case of Mumbai International Airport Pvt. Ltd (supra), the issue was again considered by the Hon'ble Apex Court elaborately and therein arguments regarding purported divergence in the two judgments of the Hon'ble Apex Court was considered. In para 13 of the said judgment following was held thus : "13. If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be non-existent. The observations in Kasturi and Sumtibai are with reference to the facts and circumstances of the respective case. In para 13 of the said judgment following was held thus : "13. If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be non-existent. The observations in Kasturi and Sumtibai are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party." 10. In view of judgments referred to above, it cannot be said that an application under Order 1 Rule 10 of the Civil Procedure Code would not be maintainable, rather, in view of the judgment of the Hon'ble Apex Court in the case of Mumbai International Airport Pvt. Ltd. (supra), explaining the judgment in the case of Kasturi and Sumtibai (supra), there exists no divergence therein. According to the aforesaid judgment, application needs to be decided on its own facts. 11. I have considered the facts and circumstances of this case to appreciate as to whether the petitioners should have been impleaded as party to the litigation. The facts of the case shows that property in dispute was existing in the name of Karan Singh and thereupon it was entered in the name of Bharat Singh. Opening of the entry was not challenged by the petitioners immediately. When Bharat Singh entered into the agreement to sale followed by a suit for specific performance against him in the year 2005, the petitioners did not come in the picture till then. Even at the time when they made an application under Order 1 Rule 10 of the Civil Procedure Code, no order was existing in their favour to show their share though a suit to claim share had been preferred before the SDO Court. Even at the time when they made an application under Order 1 Rule 10 of the Civil Procedure Code, no order was existing in their favour to show their share though a suit to claim share had been preferred before the SDO Court. The court below accordingly dismissed the application as there was no semblance of the title or interest because revenue entry was entered in favour of Bharat Singh and not in favour of the petitioners. In the background aforesaid, the petitioner's claim for their impleadment was not accepted. 12. Learned counsel for petitioners has, however, placed reliance on the order now passed by the SDO Court declaring their share in the property though aforesaid document was not there before the court below but having brought to the notice of this court, the order of the SDO Court was looked into by me. Perusal of the order shows that the claim of the share by the petitioners therein remained uncontested though main contesting party Bharat Singh was served therein. It clearly indicates a collusion between defendant Bharat Singh and the petitioners. Bharat Singh did not contest the revenue suit despite an adverse claim against him and accordingly without contest, even on the issue of limitation or another aspect, revenue suit was decreed without further challenge. This speaks volumes about the conduct of the parties therein. The judgment in the case of S.P. Chengalvaraya Naidu (supra), supports the argument of the respondents. It seems that now the endeavour of the parties is to frustrate the suit of the plaintiff-non-petitioner. 13. In the background aforesaid, I am not inclined to accept the plea raised by the petitioners. The writ petition is accordingly dismissed with no order as to costs. Petition dismissed.