Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 2058 (JHR)

Sanjay Tiwari v. Ranjan Kumar Tewary

2017-11-30

SHREE CHANDRASHEKHAR

body2017
ORDER : The petitioner is aggrieved of order dated 22.6.2006 by which an application filed by Rajan Kumar Tiwary and Manoj Kumar Tiwary under Order I Rule 10(2) CPC in Title Suit No. 100 of 2004 has been allowed. 2. Title Suit No. 100 of 2004 was instituted by the petitioner for a decree of specific performance seeking execution of a sale-deed in respect of the suit schedule property. The plaintiff has Claimed that the defendant, who had purchased 0.93 acres land under Khata No. 320, Plot No. 1803 at Village-Baralota through registered sale-deed dated. 23.3.1988 out of which 15 decimals land was taken out for road for general public, approached his father for sale of the land comprised under Khata No. 320, Plot No. 1803 and the negotiation was finalized on 2.12.2002 for sale of the aforesaid land for Rs. 2,55,000/-. The plaintiff has claimed that he paid a sum of Rs. 2,55,000/- through three demand drafts all dated 3.12.2002 drawn on State Bank of India, G.L.A. College Campus, Daltonganj, Palamau for Rs. 2,55,000/-, which were handed over to the defendant who acknowledged receipt of the same by tendering a typed receipt. The plaintiff, when threatened by the defendant, instituted Complaint Case No. 26 of 2003 for offences under Sections 420 and 406 I.P.C. and the said case is pending in the Court of Judicial Magistrate, 1st Class, Daltonganj. Through a registered notice dated 7.9.2004, the plaintiff asked the defendant to execute the sale deed on 15.9.2004, however, when the defendant refused to execute the sale-deed, compelled, the plaintiff has instituted Title Suit No. 100 of 2004. 3. The defendant contested the suit by pleading that the suit is liable to be dismissed on account of non-joinder of necessary parties, who are the persons in possession of a part of the suit land. They are Manoj Kumar Tiwary and Rajan Kumar Tiwary. They are the persons who have filed application under Order I Rule 10(2) CPC. The defendant has denied that he ever met the father of the plaintiff and agreed to transfer 93 decimals of land for a consideration of Rs.2,55,000/-. The specific case set up by the defendant was that on 1.12.2002 transfer for 93 decimals land was finalized with Manoj Kumar Tiwary and Rajan Kumar Tiwary on payment of Rs. 5,50,000/- which they were required to pay by 3.12.2002. The specific case set up by the defendant was that on 1.12.2002 transfer for 93 decimals land was finalized with Manoj Kumar Tiwary and Rajan Kumar Tiwary on payment of Rs. 5,50,000/- which they were required to pay by 3.12.2002. In the meantime, out of some financial need, the petitioner agreed to sale 43 decimals land to father of the plaintiff namely, Law Tiwari on payment of Rs.2,55,000/- and 50 decimals land to Manoj Kumar Tiwary and Rajan Kumar Tiwary on payment of Rs. 2,95,000/. 4. In the pending suit, an application under Order I Rule 10(2) CPC was filed on 28.2.2006 by the said Manoj Kumar Tiwary and Rajan Kumar Tiwary which was resisted by the plaintiff. By an order dated 22.6.2006, the Trial Judge has permitted impleadment of these two persons in Title Suit No. 100 of 2004. Aggrieved, the petitioner has approached this Court. 5. Mr. S.K. Sharma, the learned counsel for the petitioner referring to Section 54 of the Transfer of Property Act submits that a mere agreement to sale does not create any interest or right in the property and while so, the applicants who have been subsequently added in the title suit cannot claim that they are necessary parties to the suit. In fact, in a suit for specific performance the applicants are strangers and no relief has been sought against them and, therefore, their impleadment is patently illegal. Per contra, Mr. Dilip Kumar Prasad, the learned counsel for the defendant-respondent no.1 submits that the plaintiff and the applicants both are claiming interest over the same property, in which the defendant sold 50 decimals land to the applicants and the remaining 43 decimals land was to be sold to the plaintiff. The learned counsel for the applicants have contended that the applicants are necessary parties to the suit, for any adjudication on the plaintiff's claim for 93 decimals land would affect the applicants. 6. The question, whether a person is a necessary party or a proper party was decided by the Supreme Court in "Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar and Another" reported in AIR 1963 SC 786 . 6. The question, whether a person is a necessary party or a proper party was decided by the Supreme Court in "Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar and Another" reported in AIR 1963 SC 786 . It has been held that a necessary party is the one in whose absence the controversy in the suit cannot be decided effectively and a proper party is the one in whose absence the suit cannot be decided completely and finally. Normally, a transferee pendente lite would be bound by the decision in the suit and it has been held that he is not a necessary party to the suit. The facts disclosed in the present proceeding, however, would indicate that the plaintiff as well as the applicants both have claimed an interest over the suit land by virtue of the money receipt-cum-agreement executed prior to institution of the suit. Evidently, Section 52 of Transfer of Property Act, prime object of which is to maintain status quo, is not attracted in the present case. An interpretation by the learned counsel for the petitioner on Section 54 of Transfer of Property Act, that an agreement to sale would not confer a right in the property, is equally true against the petitioner also, for claim of the petitioner is also founded on an agreement to sale only. 7. More than half a century ago, Delvin J. has observed in "Amon vs. Raphael Tuck & Sons Ltd." reported in (1956)1 AllER 273; "The test is, may the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights". In "Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay & Ors." reported in (1992)2 SCC 524 the definition of necessary parties was expanded by the Supreme Court, wherein it has been observed that; "14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party....." 8. In the present case, in the event a decree of specific performance is granted to the plaintiff, it would undoubtedly affect the rights of the applicants who are also claiming a right under money receipt-cum-agreement to sale dated 24.12.2002 under which they have been given possession of 50 decimals of land. And, eventually it would lead to multiplicity of litigations. 9. In the above facts, finding no infirmity in the impugned order dated 26.6.2006, the writ petition is dismissed.