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2017 DIGILAW 2115 (RAJ)

Udai Lal S/o Lala Kumawat v. Shyamlal

2017-10-03

DINESH MEHTA

body2017
JUDGMENT : Dinesh Mehta, J. By way of the present writ petition, the petitioners have laid challenge to the order dated 02.06.2017, whereby the petitioners' application dated 25.02.2017, seeking their impleadment has been rejected by the learned Additional Sessions Judge, Shahpura District Bhilwara, Rajasthan (hereinafter referred to as the Trial Court). 2. The facts apropos for decision of the present case are that plaintiffs Smt. Ganga D/o Nathu and Lala S/o Nathu filed a suit in the year 2010, for cancellation of sale deeds dated 29.06.1995 and 18.10.1995. The plaintiffs have averred in their plaint that as their father Nathu was an illiterate person, the defendant-Shyamlal took undue advantage and got the aforesaid sale deeds executed in his favour. 3. The petitioners being daughters and sons of Lala filed the application under consideration, seeking their impleadment as defendants in the suit proceedings. The learned Court below vide its order dated 02.06.2017 rejected the said application inter-alia holding that in presence of the applicants' father namely Lala, who is the plaintiff, applicants-petitioners are not required for the adjudication of the present lis. While rejecting the said application, the Court below has recorded a categorical findings that the petitioners - applicants being daughters and sons of Lala-the plaintiff, are neither necessary nor proper parties. 4. Mr. Devasi, learned counsel for the petitioners assailing the order under consideration contended that the applicants, Udai Lal and others being legal heirs of plaintiff No. 2-Lala, are necessary parties, as their rights are likely to be adversely affected, if the suit in question is ultimately dismissed by the Trial Court. He further contended that presence of applicants is necessary for the complete and proper adjudication of the present case. 5. In support of his arguments, Mr. Devasi cited a judgment of this Court reported in 1999 (Suppl.) Civil Court Cases 684 (Rajasthan) (Baijnath & Anr. v. Smt. Ganga Devi & Anr.) and other judgment of Punjab and Haryana High Court reported in 1998 (2) Civil Court Cases 461 (P & H) in the matter of Gram Panchayat, Garhi v. Dharamvir & Ors. 6. In considered opinion of this Court, there is no error much less error of jurisdiction or of law in the impugned order dated 02.06.2017. 7. 6. In considered opinion of this Court, there is no error much less error of jurisdiction or of law in the impugned order dated 02.06.2017. 7. The contention of the petitioners that as the contentious property is ancestral property, the applicants also have a vested right in the property their presence is necessary, has no substance in the eye of law. As petitioners' father namely Lala is already prosecuting the case as the plaintiff No. 2; in considered opinion of this Court, the petitioners cannot interject or even lay their claim, in presence of their common ancestor namely Lala. The petitioners do not have any cause or grounds for assailing the sale deed dated 29.06.1995 and 18.10.1995, independent of their father. 8. The reasons for which the sale deeds under consideration have been challenged is that sale deed of the subject land has been fraudulently got executed; for which the presence of the petitioners cannot be said to be necessary. 9. It is not in dispute that the sale deeds in question were executed or got executed by the plaintiffs' father. The plaintiffs have not challenged the same on the ground that Nathu, their father had no right to alienate the ancestral property dehors their rights. 10. In the aforesaid factual background, this Court is of the firm view that the petitioners are neither necessary nor proper parties in the present case. The petitioners presence even for supporting the cause of the plaintiffs is uncalled for. 11. Test to determine as to whether an applicant is necessary party is that. "The rights of the applicant is likely to be adversely or pre-judicially effected; if the suit is decreed, and not that if the suit is dismissed". In other words if an applicant's rights are likely to be adversely affected, as a result of decreeing the suit, he can be impleaded as a party, not otherwise. 12. Coming to the judgment of this Court rendered in Baijnath (supra), it is to be noticed that the applicant therein being Legal representative sought her impleadement as a defendant in place of the deceased defendant Ram Dayal. In such situation, this Court has held that the rights of the said applicant-petitioner were likely to be adversely effected and hence she was held to be a necessary party. 13. In such situation, this Court has held that the rights of the said applicant-petitioner were likely to be adversely effected and hence she was held to be a necessary party. 13. The other judgment cited by the petitioner in case of Gram Panchayat, Garhi v. Dharamvir & Ors., reiterated the basic principle governing the adjudication of application under Order 1, Rule 10 of the Code of Civil Procedure. However the same are not applicable to the facts of the present case, which are peculiar. 14. In view of above, this Court does not find any illegality or infirmity in the order dated 02.06.2017 passed by the learned Trial Court and the writ petition filed by the petitioners is therefore dismissed.