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2016 DIGILAW 2592 (HP)

Sunil Kumar s/o Sh. Sanjay Kumar v. Sudesh Kumari w/o Sh. Satish Kumar

2016-12-06

P.S.RANA

body2016
JUDGMENT : P. S. Rana, J. Present civil revision petition is filed under section 115 Code of Civil Procedure 1908 against order dated 02.07.2016 passed by learned Civil Judge (Sr. Division) Dehra Distt. Kangra (H.P.) whereby learned Civil Judge (Sr. Division) allowed the application filed under order I Rule 10 read with section 151 CPC by Ms. Sudesh Kumari. Brief facts of the case: 2. Sh. Sunil Kumar and others filed civil suit for declaration to the effect that plaintiffs are owners in possession of suit land. It is pleaded that suit land is ancestral coparcenery property. It is further pleaded that co-defendant No.1 got no right for alienation creating any charge or mortgaging or disposing of the suit property. It is further pleaded that mortgage deed dated 12.03.2014 executed by co-defendant No.1 in favour of co-defendant No.2 is without consideration, collusive and has been fraudulently got executed to defeat the legal rights of plaintiffs. It is further pleaded that same be declared as null and void.It is further pleaded that mutation No.235 dated 10.06.2014 be also declared as illegal. Additional relief of perpetual and prohibitory injunction also sought restraining defendants from dispossessing plaintiffs or raising any construction or alienating suit land or creating any charge, mortgage or cutting or removing trees. Additional relief of mandatory injunction also sought directing defendants to restore the land to its original position. In alternative relief of possession of suit land also sought. 3. Per contra written statement filed on behalf of co-defendant No.1 pleaded therein that suit is not maintainable and plaintiffs are estopped by their act conduct and acquiescence to file present suit. It is pleaded that plaintiffs have no cause of action to file suit. It is further pleaded that plaintiffs have no locus standi to file present suit. It is further pleaded that suit is not properly valued for purposes of Court fee and jurisdiction and suit is bad for non-joinder of necessary parties i.e. Sonu Sharma and Sudesh. It is further pleaded that suit land is not ancestral joint Hindu coparcenery property. It is further pleaded that plaintiffs have no cause of action to file present suit and prayer for dismissal of suit sought. 4. It is further pleaded that suit land is not ancestral joint Hindu coparcenery property. It is further pleaded that plaintiffs have no cause of action to file present suit and prayer for dismissal of suit sought. 4. Per contra separate written statement filed on behalf of co-defendant No.2 pleaded therein that suit is not maintainable and plaintiffs have no cause of action to file suit and plaintiffs have no locus standi to file present suit and suit is not properly valued. It is further pleaded that plaintiffs are estopped by their act conduct and acquiescence from filing present suit. It is further pleaded that entry of mortgage in favour of co-defendant No.2 relating to suit land is in consonance with law. It is further pleaded that co-defendant No.1 took loan from codefendant No.2 to the tune of Rs.12 lacs for education of his children and for repair of his shop. It is further pleaded that plaintiffs are not entitled for any decree as prayed and prayer for dismissal of suit sought. 5. During pendency of suit Ms. Sudesh Kumari filed application under Order I Rule 10 CPC pleaded therein that she is co-owner of suit land and her ownership is recorded in record of rights prepared by revenue officials. It is pleaded that ad-interim injunction has been granted by learned Trial Court and she being co-owner of suit land is not in a position to alienate her own share. It is further pleaded that Ms. Sudesh Kumari is necessary party in civil suit and prayer for acceptance of application filed under Order I Rule 10 CPC sought. 6. Response filed on behalf of plaintiffs to application filed under Order I Rule 10 CPC. Plaintiffs contested the application pleaded therein that application is not maintainable. It is pleaded that Ms. Sudesh Kumari is not necessary party in present civil suit. It is further pleaded that present suit is filed for declaration and mortgage executed by co-defendant No.1 in favour of co-defendant No.2 has been challenged in present civil suit. It is further pleaded that Ms. Sudesh Kumari has no concern with share of co-defendant No.1. It is further pleaded that present application is filed in collusion with other co-defendants and prayer for dismissal of application sought. 7. Learned Trial Court impleaded Ms. Sudesh Kumari as co-defendant No.3 in civil suit under Order I Rule 10 CPC. It is further pleaded that Ms. Sudesh Kumari has no concern with share of co-defendant No.1. It is further pleaded that present application is filed in collusion with other co-defendants and prayer for dismissal of application sought. 7. Learned Trial Court impleaded Ms. Sudesh Kumari as co-defendant No.3 in civil suit under Order I Rule 10 CPC. Feeling aggrieved against order passed by learned Trial Court plaintiffs have filed present revision petition. 8. Court heard learned Advocate appearing on behalf of revisionists and learned Advocate appearing on behalf of non-revisionists and Court also perused entire record of case carefully. 9. Following points arises for determination: 1) Whether civil revision petition filed by revisionists is liable to be accepted as mentioned in memorandum of grounds of revision petition? 2) Relief. Findings upon Point No.1 with reasons. 10. Submission of learned Advocate appearing on behalf of revisionists that Ms. Sudesh Kumari is not necessary party in present civil suit and no relief is claimed against her by revisionists in civil suit and on this ground revision petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Name of Ms. Sudesh Kumari is recorded as one of co-owners of suit property in jamabandies prepared by revenue officials under H.P. Land Revenue Act 1954. Jamabandies have been prepared by public official in discharge of their official duties and are relevant fact under section 35 of Indian Evidence Act 1872. It is well settled law that in suit for declaration all the co-owners are necessary parties because all the co-owners in joint property have direct interest in suit property till joint land is not partitioned in accordance with law. Following are the rights of co-owners in the suit property: (1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of one co-owner in joint property is possession of all. (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster because possession of one is deemed to be on behalf of all. (4) The above rule admits of one exception when there is ouster of a co-owner by another. (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster because possession of one is deemed to be on behalf of all. (4) The above rule admits of one exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all on the ground of ouster the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other. (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. (6) Every co-owner has a right to use the joint property in a husband like manner. (See AIR 1961 Punjab 528 Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram and others. 11. It is well settled law that Court can direct impleadment of parties at any stage of civil suit under Order I Rule 10 (2) Code of Civil Procedure 1908 whose presence before Court is necessary in order to effectively and completely adjudicate and settled all questions involved in suit property and concept of dominus litis would not apply upon necessary parties in civil suit. See (1992) 2 SCC 524 Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay. See (1994)1 SCC 402 New Redbank Tea Co.Pvt Ltd. Vs. Kumkum Mittal and others. It is held that Ms. Sudesh Kumari is necessary party in civil suit because Ms. Sudesh Kumari is one of co-owners of suit land and she has direct interest in the decision of present civil suit of declaration. It is held that interest of Ms. Sudesh Kumari will be adversely effected in a declaratory suit if Ms. Sudesh Kumari is not impleaded as co-defendant in civil suit being coowner in suit property because plaintiffs have sought relief of declaration to the effect that plaintiffs are owners in possession of suit land with specific shares. In view of above stated facts and case law cited supra it is held that order of learned Trial Court is in consonance with law. It is held that there is no illegality in the order of learned Trial Court. In view of above stated factspoint No.1 is answered in negative. Point No.2 (Relief). 12. In view of above stated facts and case law cited supra it is held that order of learned Trial Court is in consonance with law. It is held that there is no illegality in the order of learned Trial Court. In view of above stated factspoint No.1 is answered in negative. Point No.2 (Relief). 12. In view of findings upon point No.1 present civil revision petition is dismissed. Parties are left to bear their own costs. Observations will not effect merits of case in any manner and will be strictly confined for disposal of present revision petition. Parties are directed to appear before learned Trial Court on 20.12.2016. File of learned Trial Court alongwith certified copy of order be sent back forthwith. C.R. No.110/2016 is disposed of. Pending application (s) if any also disposed of.