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2017 DIGILAW 1992 (JHR)

Punam Choudhary v. Prabha Devi

2017-11-20

SHREE CHANDRASHEKHAR

body2017
ORDER : Petitioner No.1 claiming herself purchaser of 50 decimals land in Plot No. 2114/C and petitioner no. 2 claiming herself purchaser of 50 decimals land in plot no.2114/B under Khata No. 162 from one Most. Baidehi Kueri through two registered sale-deeds both dated 3.5.1986 filed an application for their impleadment in Partition Suit No. 327 of 2012, which has been declined by the impugned order dated 10.6.2016. 2. Title Partition Suit No. 327 of 2012 was instituted by Prabha Devi-daughter-in-law of Baidehi Kueri and her grandsons and granddaughter. In the partition suit, son of Baidehi Kueri namely, Chandra Mohan Narayan Tiwary and her daughter-in-law namely, Malti Devi were defendants. The suit was instituted for a preliminary decree claiming one-third share for the plaintiffs in the suit schedule properties, which comprised about 35.54 acres land. The lands conveyed to the petitioners by Most. Baidehi Kueri through sale-deeds dated 3.5.1986 are also comprised in the suit schedule properties. The suit was decreed on 31.1.2014 and a preliminary decree was drawn up on 10.2.2014. At this stage, the petitioners filed an application on 8.12.2014 for their impleadment in Partition Suit No. 327 of 2012. This application has been dismissed by the impugned order dated 10.6.2016, holding that the petitioners who are not in possession of the lands allegedly conveyed to them 30 years before, may file a regular suit to get a declaration of their possession and recovery of possession. 3. Referring to judgment in "Dhanlakshmi and Others vs. P. Mohan and Others" reported in (2007)10 SCC 719 , the learned counsel for the petitioners submits that a purchaser pendente lite is a necessary party in a partition suit and while so, rejection of the petitioners application for their impleadment in Partition Suit No. 327 of 2012 is illegal. Another contention raised on behalf of the petitioners is that the petitioners claim flowing from registered sale-deeds dated 3.5.1986 can be looked into by the Court even at the stage of preparation of a final decree. In support of the above contention, the learned counsel for the petitioners refers to decision in "Maddineni Koteswara Rao Vs. Maddineni Bhaskara Rao and Another" reported in (2009) 13 SCC 179 . 4. Under Order I Rule 10(2) CPC, the Court has discretion to add a party or to delete one from array of the parties in the suit. In support of the above contention, the learned counsel for the petitioners refers to decision in "Maddineni Koteswara Rao Vs. Maddineni Bhaskara Rao and Another" reported in (2009) 13 SCC 179 . 4. Under Order I Rule 10(2) CPC, the Court has discretion to add a party or to delete one from array of the parties in the suit. This power can be exercised by the Court suo motu or on an application by the parties to the suit or by a person claiming interest in the suit property. A necessary party is the one in whose absence the issue involved in the suit cannot be adjudicated and thus the suit cannot be decided effectively, whereas a proper party is the one whose presence is necessary for complete and final decision in the suit (refer, Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar and Another reported in AIR 1963 SC 786 ). In the partition suit, issue before the Court was claim of the plaintiffs for 1/3rd share in the suit schedule properties. The petitioners, who are claiming an interest in the suit properties by virtue of registered sale-deeds dated 3.5.1986, could not have assisted the Court in final and effective adjudication of the issue before the Court. Neither they can dispute the claim of the plaintiffs nor support their claim in the partition suit, and, that too, at the stage of preparation of final decree. The properties comprised in the sale-deeds dated 3.5.1986 are part of the suit properties, but then their vendor is not alive who could have affirmed execution of the sale-deeds. The parties to the partition suit have not admitted right of the petitioners under the sale-deeds dated 3.5.1986. The petitioners failed to produce rent receipt, correction slip etc. and they are not in possession of the lands allegedly conveyed to them by Most. Baidehi Kueri. In Dhanlakshmi case, it was an admitted position that the respondent nos. 2, 3, 4 and 6 had got an undivided share in the suit properties which was purchased by the appellants. It was also a fact, as evident in paragraph no. 5 of the said judgment, that the rights of the first respondent in the suit would not have affected the appellants. The facts in the present case evidently are different from the facts in Dhanlakshmi case. The defendant no. It was also a fact, as evident in paragraph no. 5 of the said judgment, that the rights of the first respondent in the suit would not have affected the appellants. The facts in the present case evidently are different from the facts in Dhanlakshmi case. The defendant no. 1, who is said to have witnessed the sale-deed, has raised objection over it. Contention that in the partition suit validity of a sale-deed can be adjudicated by the trial court, is misconceived. Suffice would be to record that reliance on Maddineni Koteswara Rao case is misplaced. A judgment is not read as a statute. In the said case, issue before the Court was legality and validity of preparation of two preliminary decrees. Referring to "Phoolchand vs. Gopal Lal" [ AIR 1967 SC 1470 ], the Supreme Court held that it is legal and valid even if two preliminary decrees are prepared in the suit. 5. On death of vendor of the petitioners, and in view of the fact that claim of the petitioners by virtue of registered sale-deeds dated 3.5.1986 has not been admitted by the parties to the suit, the petitioners' intervention in the partition suit would be wholly unwarranted. In absence of the petitioners, it cannot be said that the decree in the suit cannot be executed effectively or fully, finally and completely, and it also cannot be said that it can be effectively adjudicated only in presence of the petitioners. In fact, claim of the petitioners cannot be adjudicated in this partition suit, for they are required to lead evidence on validity of the sale-deeds and their right, title and interest flowing from the sale-deeds dated 3.5.1986. 6. In the above facts, I am of the opinion that the petitioners are neither necessary parties nor proper parties to Partition Suit No. 327 of 2012. Finding no infirmity in the impugned order dated 10.6.2016, the writ petition is dismissed.