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2013 DIGILAW 118 (PAT)

Birendra Tiwari v. Sarveshwar Tiwari

2013-01-24

MUNGESHWAR SAHOO

body2013
CAV ORDER 1. I have heard the learned senior counsel, Mr. Kamal Nayan Chaubey appearing on behalf of the appellant and the learned counsel, Mr. Jitendra Kishore Verma, appearing on behalf of the respondent No.2 on the interlocutory applications No.417 of 2013, I.A. No.416 of 2013 and I.A. No.400 of 2013. Since the learned counsel, Mr. Jitendra Kishore Verma at the very outset raised the objection regarding maintainability of this First appeal by the appellant, I heard both the learned counsels on the maintainability of the appeal also. 2. It may be mentioned here that I.A. No.417 of 2013 has been filed by the appellant seeking leave of this Court to file this appeal against the Judgment and decree. I.A. No.416 of 2013 is the application wherein the appellant had prayed for stay of further proceeding in title suit No.234 of 2010 and I.A. No.400 of 2013 is limitation application filed by the appellant praying for condoning the delay in filing this First Appeal. 3. The appellant has filed this First Appeal against the Judgment and Decree dated 30.06.2012 passed by Sri Krishna Pratap Singh, the learned Sub Judge III, Patna in title suit No.234 of 2010. This present appellant was not a party to the suit. It may be mentioned here that the plaintiff-respondents filed the aforesaid title suit No.234 of 2010 praying for enforcement of development agreement dated 29.3.2005 against the defendant developer who was the sole defendant and for further relief that the defendant developer is liable to deliver as per the development agreement, 25 per cent of the Schedule II and III properties to the plaintiff as agreed. It appears that subsequently some interveners applications were filed which were allowed by the trial Court and the intervener were added as party. However, the present appellant never filed any intervention application. 4. The plaintiff respondent claimed the aforesaid relief alleging that the suit property with construction was allotted to the plaintiffs along with heirs of Jadubansh Tiwari, Hargovind Tiwari and Abhilakh Tiwari having 20 per cent share each out of 100 per cent. Subsequently, there was exchange of share between the plaintiffs, the heirs of Jadubansh Tiwari, Hargovind Tiwari and Abhilakh Tiwari with the shares allotted in Kolkata property. The heirs of Jadubansh Tiwari gave their 10 per cent share to the heirs of Abhilakh Tiwari in exchange. Subsequently, there was exchange of share between the plaintiffs, the heirs of Jadubansh Tiwari, Hargovind Tiwari and Abhilakh Tiwari with the shares allotted in Kolkata property. The heirs of Jadubansh Tiwari gave their 10 per cent share to the heirs of Abhilakh Tiwari in exchange. Further heirs of Jadubansh Tiwari gave their remaining 10 per cent share to the heirs of Jagdish Tiwari, i.e., the plaintiffs. Likewise the heirs of Hargovbind Tiwari gave their 20 per cent share to the heirs of Abilakh Tiwari in exchange. The defendant developer entered into development agreement with the owners. After exchange, the plaintiffs jointly have 25 per cent share and heirs of Abhilakh Tiwari have got 25 per cent in the built up area and the development agreement was entered into between the plaintiffs and the heirs of Abhilakh Tiwari, Hargovind Tiwari and Jadubansh Tiwari on 29th March, 2005. The heirs of Hargovind Tiwari and Jadubansh Tiwari became confirming party to the said development agreement in view of the exchange. The builders defendants completed the construction in the name of Sidhhi Vinayak Plaza within the stipulated period but due to price rise, the builder has not delivered possession of the flats and shops built over suit property either to the plaintiff or to the heirs of Abhilakh Tiwari. Therefore, the plaintiffs filed the suit for enforcement of the agreement and delivery of possession. 5. The defendant developer filed written statement admitting the case of the plaintiff. The heirs of Hargovind Tiwari filed application for being added as party in the suit which was allowed and ultimately by the impugned Judgment and Decree, the suit was decreed on admission under Order 12 Rule 6 C.P.C. 6. Against the said Judgment and Decree, two First Appeals had been filed. One by the developer being First Appeal No.174 of 2012 and the other by the interveners being First Appeal No.144 of 2012. 7. The learned senior counsel, Mr. Kamal Nayan Chaubey appearing on behalf of the appellant submitted that since the appellant is vitally interested in the suit property and the Judgment and Decree have been passed affecting the right, title and interest of the appellant, he is entitled to file appeal challenging the Judgment and decree. 7. The learned senior counsel, Mr. Kamal Nayan Chaubey appearing on behalf of the appellant submitted that since the appellant is vitally interested in the suit property and the Judgment and Decree have been passed affecting the right, title and interest of the appellant, he is entitled to file appeal challenging the Judgment and decree. The learned counsel submitted that admittedly the property belonged to 5 brothers and according to the plaintiffs, there was exchange between the plaintiffs and the other branches but no document has been annexed with the plaint showing any such family settlement. Moreover, the plaintiff themselves admitted that the present appellant has got title to the suit property, therefore the title of the appellant cannot be divested only by signing a Sada agreement. The interveners who came to know about the pendency of the suit filed application for being added as party and their application was allowed and they have also filed First Appeal which is pending before the Court. Therefore, the case of this appellant being same, this appeal is maintainable at the instance of the appellant as he has got 20 per cent share in the suit property. According to the learned counsel, the present appellant is not a third party or stranger entirely rather he is a co-sharer but the plaintiff intentionally did not make him party in the suit and by the impugned Judgment and Decree, the interest of this appellant is also affected. The agreement is unregistered. 8. The learned counsel on the above ground submitted that the application for grant of leave be allowed. The learned counsel regarding limitation application submitted that the appellant had no knowledge about the pendency of the suit and / or the Judgment and Decree, therefore, he could not file the appeal earlier. Therefore, the delay in filing the appeal be condoned. So far stay application is concerned, the learned counsel further submitted that the lower Court directed the developer to give delivery of possession and if delivery of possession is affected in favour of the plaintiff by the developer, the appellant shall suffer serious loss and irreparable injury, therefore the delivery of possession may be stayed till the disposal of this First Appeal. 9. It may be mentioned here that this appeal was filed on 16.01.2013 and a slip was mentioned for hearing the interlocutory application without stamp report. 9. It may be mentioned here that this appeal was filed on 16.01.2013 and a slip was mentioned for hearing the interlocutory application without stamp report. It was submitted that the Court fee which was paid in the Court below by the plaintiffs have been paid by the appellant. Considering the urgency mentioned, I took up the matter for hearing as aforesaid accepting the submission of the learned counsel that Court fee has been paid. 10. On the contrary, the learned counsel, Mr. Jitendra Kishroe Verma, appearing on behalf of the respondent submitted that the suit was filed for specific performance of the contract between the plaintiff and the developer defendant. In the agreement the present appellant signed as one of the confirming party. In the agreement, it is mentioned that the plaintiffs are the only owners and, therefore in the agreement itself, the plaintiffs have been described as owners thereof and the persons who have no title to the property have confirmed the plaintiffs title have been described as confirming party and the present appellant is one of them who has singed the agreement. Now, therefore, whether he is entitled to 20 per cent or not is a question between the plaintiff and the present appellant. He cannot possibly object the delivery of possession to be given by the developer to the plaintiffs as directed by the impugned Judgment and Decree. This dispute which is being raised by the appellant is dispute between the plaintiff and a third party to the agreement. In the agreement, he clearly admitted the title, interest of the plaintiff only and this agreement is of the year 2005. The developer filed the First Appeal and the interveners also filed First Appeal and in that case when stay application were rejected by this Court, this First Appeal have been filed by the present appellant at the instance of the builder. According to the learned counsel, the builder wants that the litigant should linger so that he will not deliver the possession to the plaintiffs and will earn from the built up shops and flats during the pendency of the First Appeal. Moreover, this is a suit for specific performance of contract and, therefore, the question whether the present appellant is entitled to share or not is a foreign question. Moreover, this is a suit for specific performance of contract and, therefore, the question whether the present appellant is entitled to share or not is a foreign question. The only question to be decided in the suit and the First Appeals arising out of the suit will be as to whether the agreement is enforceable or not against the developer. For deciding this question, the present appellant is not at all a necessary party or a proper party. At this stage, if it is held that this appeal is maintainable then a finding has to be recorded as to whether he has got right and interest over the suit property. Unless, this finding is recorded, it canoe be said that the appellant’s right, title and interest has been affected by the impugned Judgment and Order. So far the agreement is concerned, the present appellant is a third party and in the agreement, he has confirmed the title of the appellant, therefore, unless he avoids the said agreement, the appeal at his instance will not be maintainable. Therefore, the learned counsel submitted that the appeal is liable to be dismissed as not maintainable. 11. In view of the above submission of the parties the points for consideration is as to whether the appeal is maintainable at the instance of the present appellant. Admittedly the suit has been filed by the plaintiffs respondent for specific performance of contract. The present appellant is claiming title adverse to that of the plaintiff. 12. In the case of Kasturi Vs. Iyyamperumal 2005 (6) SCC 733 , the Apex Court considering the provision under Order 1 Rule 10 (2) CPC held that from a plain reading of the expression “all the questions involved in the suit” used in Order 1 Rule 10 (2) CPC, it is abundantly clear that the legislature clearly meant that only the controversies raised as between the parties to the litigation must be gone into, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiffs or the defendants inter se or questions between the parties to the suit and third party. Therefore, in view of above settled proposition of law the dispute raised by the present appellant in this appeal is a dispute between the parties to the suit and third party, i.e., the appellant. As stated above, this issue as to whether the plaintiff is entitled to 25 per cent or 50 per cent cannot be decided in the present suit / appeal. Likewise whether the present appellant has a title in the property also cannot be decided in this suit or in the appeal. Now, therefore the present appellant was not entitled for being added as party. In other words, he is not at all a necessary party in the suit. If he is not a necessary party in the suit, how can he be allowed to file present appeal. 13. In the case of Mumbai International Airport Vs. Regency Convention Centre and Hotels Pvt. Ltd. 2010 (7) SCC 417 , the Apex Court has held that the general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. In the present case, the plaintiff never sought any relief against the present appellant, therefore, it cannot be said that the plaintiff is compelled to fight a litigation against the present appellant. If he cannot be compelled to fight litigation against the appellant how the appeal will be maintainable by him? In the said decision itself, the Apex Court has held that “A necessary party is a person who ought to have been joined party and in whose absence, no effective decree could be passed at all by the Court. If a necessary party is not impleaded, the suit itself is liable to be dismissed.” “A proper party” is a party who though not a necessary party is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit though, he need not be a person in favour of or against whom the decree is to be made. In view of the settled proposition of law, the present appellant is neither a necessary party nor a proper party in the present suit because, it cannot be said that in his absence, the Court will not be able to completely, effectively and adequately adjudicate upon the matters in dispute between the parties in suit. Appeal is continuation of suit. 14. The other aspect of the matter is that in the agreement which is being produced by the parties before me at the time of hearing of this matter, it appears that the present appellant clearly in unequivocal term admitted the title of the plaintiffs with respect to the property in suit. He confirmed the title of the plaintiff. If he has got title to the property, he can get his title declared in properly constituted suit. So far the present suit is concerned, it is not a partition suit or a suit for declaration of title and recovery of possession. As stated above only question is whether agreement is enforceable in favour of the plaintiffs. According to the agreement, he is confirming party, therefore, he cannot now tern and say that the agreement cannot be enforced against the developer. This will be against the terms of the agreement. It is also not his case. If he cannot say that the agreement cannot be enforced rather it should be enforced then by the impugned Judgment and Decree, the Court has decreed the suit enforcing the agreement. In such circumstances, how can it be said that by the impugned Judgment and Decree, the present appellant is aggrieved and dissatisfied with the same. He cannot be said to be aggrieved person then how the appeal will be maintainable? 15. Admittedly, he is a party to the suit. Once it is held that he has title in the property then only he will be said to have interest in the suit property. So far this finding is concerned is a foreign question to be decided in this suit for specific performance. So far the submission that application filed by the interveners have been allowed by the trial Court is concerned, it may be mentioned here that the said interveners were made party at the very initial stage. So far this finding is concerned is a foreign question to be decided in this suit for specific performance. So far the submission that application filed by the interveners have been allowed by the trial Court is concerned, it may be mentioned here that the said interveners were made party at the very initial stage. The present appellant has filed this appeal and if it is held now that he is a necessary party, then a right will accrue in favour of the appellant for filing written statement and according to the appellant, he will claim 20 per cent in the suit property. In such circumstances the nature of the suit will change entirely. The suit, i.e., suit for specific performance, will not remain as such. In that case the validity or genuineness of the agreement and the partition between the parties will be considered in its entirety which is not the scope of the present suit. There will be rival claim between the plaintiffs and the present appellants and the builder will take advantage of fighting of these persons. Moreover, whether builder will take advantage or no advantage, I may reiterate here that these questions will be between the plaintiffs and third party, i.e., the appellant. There will be a denovo trial and the plaintiff will be compelled to fight a litigation at the instance of the appellant. In my opinion, at the instance of the defendant, the nature of the suit cannot be allowed to be changed. 16. In the case of Smt. Ganga Bai Vs. Vijay Kumar AIR 1974 SC 1126 the Apex Court has held that the right of appeal inheres in no one and, therefore, an appeal for its maintainable must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. In the present case at our hand, the matter regarding title of the present appellant or is 20 per cent share as claimed by him is not directly and subsequently in issue in the suit for specific performance of contract. The decision of the Apex Court in the case of Ganga Bai (Supra) had been reiterated in the case of Baransi Vs. Ram Phal AIR 2003 SC 1989 . 17. The decision of the Apex Court in the case of Ganga Bai (Supra) had been reiterated in the case of Baransi Vs. Ram Phal AIR 2003 SC 1989 . 17. In view of the above decisions of the Apex Court, it is clear that neither Section 96 or 100 C.P.C. enumerate the persons who can file appeals but it is fundamental that the person must be aggrieved by and dissatisfied with the Judgment. The general principle is that no one can appeal unless he was party to the proceeding or he has an interest in the subject matter of suit or he is prejudicially affected by Judgment and decree. Here, the question of title is not involved. The plaintiff set up a case of specific performance and claimed the relief against Builder defendant only in one side and the defendant admitted the case of plaintiff. Now, the appellant is claiming title against plaintiff. As stated above, title has not been decided in the present case, therefore, how can it be said that the appellant is prejudicially affected. He is not denying the execution of the agreement but only objection is that he has also got interest in the property. The said question can be decided in a properly instituted proceeding as in this case the title of plaintiff vis-à-vis appellant can not be decided at the appellate stage when there is neither any pleading of the appellant nor there is any evidence and all the pleadings and evidences are regarding enforceability of agreement. So far the submission that agreement is unregistered and can not be enforced is concerned this ground is not available to a person who is not a party to contract. So far the submission that the appellant has also signed the agreement so he is a party is concerned, it is repeated here that he signed is confirming the title of the plaintiffs. In other words he confirmed the family settlement / exchange and by signing the agreement he is not estopped to say contrary to the statement in agreement. 18. It further appears that the stay application filed by the builder and the intervener in their respective First Appeals have already been dismissed by this Court on 11.12.2012. 19. In other words he confirmed the family settlement / exchange and by signing the agreement he is not estopped to say contrary to the statement in agreement. 18. It further appears that the stay application filed by the builder and the intervener in their respective First Appeals have already been dismissed by this Court on 11.12.2012. 19. So far the order passed by the Court below allowing edition of intervener in suit for specific performance of contract is concerned, it may be mentioned here that, that is a matter to be considered in those First Appeals as to whether the said order was legal and according to law. But on that ground, it cannot be held that this First Appeal is maintainable at the instance of the appellant as his case is same as that of intervenors. 20. In view of my above discussion, I find that the appellant has got no locus standi to file the present appeal against the impugned Judgment and Decree dated 30.06.2012 passed by Sub Judge III, Patna in title suit No.234 of 2010 as in my opinion, he is not a party to the contract and not a person being aggrieved by the Judgment and Decree and the points or grounds raised by him in this present appeal cannot be decided, particularly when the suit was filed only for specific performance of contract against the builder by the plaintiff and the present appellant is not challenging the genuineness of the agreement. Therefore, this Frit Appeal is dismissed as not maintainable because of want of locus standi of the appellant. Since the appeal itself has been dismissed as not maintainable the interlocutory applications mentioned above are also rejected.