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2015 DIGILAW 387 (HP)

Lt. Col. Sheilesh Jung (Retd. ) v. Rakesh Jung

2015-04-22

SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The parties at contest are the successors-in-interest of Chaudhary Sher Jung. By way of the instant suit the estate of Chaudhary Sher Jung is sought to be partitioned. The defendants No. 1 to 12 herein executed certain sale deeds with their vendees qua the suit property, which is claimed in the plaint to be in its entirety ancestral and coparcenary suit property in which the plaintiffs had an indefeasible right at the time of their birth, as such the sale deeds executed qua the purported ancestral and coparcenary property by defendants No. 1 to 12 in favour of defendants No. 13 to 23 are sought to be declared to be a nullity. Consequently, the suit property on a declaratory decree when may come to be hence afforded in favour of the plaintiffs qua sales aforesaid hence ingrained with an illegality would sequel the effect of the entire suit property constituting ancestral/coparcenary property, hence liable to be partitioned interse the plaintiffs and defendants No. 1 to 12. After evidence having been led by the plaintiffs, Mr. Anand Sharma, Advocate, instituted an application before this Court under the provisions of Order 1 Rule 10 CPC on behalf of one of the legal heirs of deceased Sher Jang, for hence while his being a just and essential party, as such, his impleadment in the array of defendants being imperative. The application filed by Shri Anand Sharma, Advocate, seeking impleadment of Varinder Jung in the array of defendants has been hotly and vociferously contended to be oustable by the learned counsel for the plaintiffs on the score of his having no right in the suit property with his being not the legal heir of deceased Sher Jung. Besides, he contends that his claim to entitlement to the estate of deceased Sher Jung is by his instituting a separate suit against the plaintiffs. Moreover, he contends that the application is belated and that the plaintiffs being the dominus litis they are not enjoined to be guided by the proposed defendant for impleading or not impleading him in the array of defendants. 2. The counsel have been heard at length. Moreover, he contends that the application is belated and that the plaintiffs being the dominus litis they are not enjoined to be guided by the proposed defendant for impleading or not impleading him in the array of defendants. 2. The counsel have been heard at length. The factum of Varinder Jung being the legal heir of deceased Sher Jung is fortifyingly established by Annexure A-5 existing at page 326 of the paper book, which is an order rendered by the learned Sub Judge Ist Class, Court No.1, Paonta Sahib on an application instituted under Order 22 Rule 4 CPC by the plaintiffs for bringing on record the LRs of deceased Sher Jung, who therein were recited to be comprising only of Sheilesh Jung, plaintiff and Nirmla Sher Jung, his widow. However, the Court which rendered Annexure A-5 has also in paragraph 5 of the orders held on a consideration of the material as existed before it that Varinder Jung, who is now proposed to be impleaded in the array of defendants, was also the LR of deceased Sher Jung. The said orders comprised in Annexure A-5 qua Varinder Jung, concluded therein to be one of the LRs of deceased Sher Jung have not been portrayed to have been challenged nor obviously they have been demonstrated to have suffered reversal. Consequently, the factum as recorded in Annexure A-5 of Varinder Jung being the LR of Sher Jung has now attained finality. In sequel, it is apt to conclude that hence Varinder Jung, who is proposed to be impleaded in the array of defendants is one of the legal representatives of deceased Sher Jung. Consequently, he has a right in the estate of deceased Sher Jung. In the eventuality of the suit of the plaintiffs succeeding and the suit property hence being construed to be ancestral and coparcenary property, as such, facilitating its partition interse the plaintiffs and defendants No. 1 to 12 who also are the legal representatives of Sher Jung, the exclusion of Varinder Jung from the array of defendants while his being also the legal representative of Sher Jung would unjustifiably, to his prejudice deprive him of the benefits of a decree of partition if rendered qua the suit property. Even though the counsel for the plaintiffs/non applicants contest that the defendant who is proposed to be impleaded in the array of defendants can claim his entitlement to the suit property by instituting a separate suit. Nonetheless, the said argument is legally frail, as the entire lis interse the parties, who are the legal representatives of deceased Sher Jung and whose property is claimed to be liable to be partitioned interse the plaintiffs and defendants No. 1 to 12 in the event of sale deeds executed by defendants No. 1 to 12 in favour of defendants No. 13 to 23 being set-aside, necessitates an adjudication with Varinder Jung being arrayed in the array of defendants especially when he has a right in his capacity as legal representative of Sher Jung, rather than driving him to the legally inappropriate measure of his instituting a separate suit for proving his entitlement, which would only lead to multiplicity of litigation and which is to be obviated. Moreover, even if the plaintiff is the dominus litis and has the right to choose the parties to be arrayed as defendants, nonetheless, the said factum cannot derogate the provisions of Order 1 Rule 10 CPC which are specifically engrafted for meeting the eventuality of causing impleadment of a just and necessary party as the proposed defendant is. 3. The learned counsel for the plaintiffs has also submitted that since the demise of Sher Jung, Varinder Jung has not asserted or staked any right to the property of his predecessor in interest and hence he is presumed to have abandoned or waived his right in the estate of Sher Jung. However, the said argument is of no legal worth inasmuch as mere fact of his not claiming at any stage any right to the estate of the deceased Sher Jung would not render him to be deprived to claim a right in the estate of deceased Sher Jung, in his capacity as his legal representative, more especially when in the event of suit property being declared to be ancestral and coparcenary suit property his entitlement thereto would naturally ensue in his favour. Consequently, he cannot be forestalled from his being permitted to be impleaded in the array of defendants as it would deprive him of the benefits of a decree of partition in the event of the suit property being declared to be bearing an ancestral and coparcenary nature/character. 4. Accordingly, the instant application is allowed and Mr. Varinder Jung is ordered to be impleaded as a defendant in the array of defendants and is also permitted to file written statement within four weeks. No notice is required to be issued to the newly impleaded LR of the deceased as he stands represented by Shri Anand Sharma, Advocate.