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2018 DIGILAW 2124 (JHR)

Binod Kumar Khowala v. Bhagwati Prasad Khowala

2018-09-24

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioner, claiming himself grand-son of Devi Prasad Khowala, is aggrieved of order dated 23.02.2018 passed in Title Suit No.108 of 1998 by which his application under Order-I Rule 10(2) CPC seeking his impleadment in the suit has been rejected. 2. Briefly stated, Title Suit No. 108 of 1998, in which the petitioner seeks his impleadment, was instituted by Bhagwati Prasad Khowala for a decree for declaration that sale-deed no.2340 dated 17.08.1998 and sale-deed no.2344 dated 18.08.1998 executed by the defendant no.1 in favour of the defendant nos. 2 and 3 are illegal, void ab initio, unlawful, inoperative, fraudulent and thus not binding on the plaintiff. Another relief sought by the plaintiff is for permanent injunction against the defendants second party restraining them from alienating or encumbering the suit property and to maintain status quo in respect of the suit property during pendency of the suit. 3. The plaintiff-Bhagwati Prasad Khowala is son of Devi Prasad Khowala and the defendant no.4-Bhagwan Das Jain is the son-in-law of Devi Prasad Khowala. The petitioner is grandson of Devi Prasad Khowala. His father namely, Mahabir Prasad Khowala had four sons; the petitioner''s two brothers namely, Dinesh and Manoj are dead now. Defendant no.1 is brother-in-law of Ram Nath Khowala. The defendant no.2 is the wife of Dinesh and defendant no.3 is the wife of Manoj. The defendant no.4-Bhagwan Das Jain is the attesting witness to the aforesaid sale-deeds. Defendant nos.5 to 7 have been labelled as proforma defendants. 4. The plaintiff has pleaded that Pannalal Khowala was the common ancestor of the parties. The suit property popularly known as "Rama Niwas" is situated at Mouza- Shyamganj, District-Deoghar. It is pleaded that 1/3rd of the suit schedule property was purchased by Nripendra Mohan Sarkar on 04.06.1940 in Execution Case No. 45 of 1935 and after his death his widow-Leela Sarkar sold this property to Smt. Kamla Devi, wife of Haribux Singhania and Devi Prasad Khowala through a registered sale-deed dated 26.02.1943, however, it was Devi Prasad Khowala who has exercised his exclusive possession over the property which forms part of 1/3rd suit schedule property. The plaintiff has asserted that in respect of 2/3rd share in the suit schedule property Devi Prasad Khowala has perfected his right, title and interest to the exclusion of others and, in fact, after death of Smt. Kamla Devi her legal heirs sold her share to Devi Prasad Khowala through registered sale-deed dated 07.07.1960. In course of time the entire suit property of which Devi Prasad Khowala was the absolute owner got blended with the joint family properties. Devi Prasad Khowala died on 16.10.1983 and there was a family settlement amongst his legal heirs on 29.10.1983. 5. Further stand of the plaintiff is that in oral family arrangement Ram Nath Khowala was allotted the construction portion which was in possession of Mahabir Prasad Khowala which he agreed to hand-over to Ram Nath Khowala within two years in terms of their mutual agreement dated 22.12.1990 but with malafide intention Mahabir Prasad Khowala got Title Suit No. 31 of 1991 instituted through one Srilal Khowala, who is brother of Devi Prasad Khowala. In the said suit Mahabir Prasad Khowala and his sons have been arrayed as defendants; the petitioner is defendant no. 4 in the said suit. The property in question in Title Suit No. 108 of 1998 is comprised under schedule "C" properties of Title Suit No. 31 of 1991, which, in fact, is a suit in the nature of partition suit. It is pleaded that the defendants second party have got two sale deeds executed through Sajjan Kumar Khemka projecting him as owner of 1/3rd undivided share in the suit property known as "Rama Niwas". 6. But before that, one Ganga Narayan Mittra claiming 2/3rd interest in the suit property through conveyance deed dated 13.04.1946 instituted Partition Suit No. 31 of 1954 against Kamla Devi and Devi Dayal Khowala which finally was dismissed in default. There is reference of Title Suit No. 101 of 1964 filed by Shiv Pd. Kar in which Devi Prasad Khowala, Bhagwan Das Jain and Ajit Kumar Bose have been made defendants. During pendency of that suit Shiv Prasad Kar executed a deed of conveyance in favour of Sajjan Kumar Khemka of which Ajit Kumar Bose is a confirming party. 7. The plaintiff has pleaded oral family arrangement in the year 1963, 1974 and 1983 and that the entire suit property was in exclusive possession of Devi Prasad Khowala w.e.f 26.02.1943 and the defendant nos. 7. The plaintiff has pleaded oral family arrangement in the year 1963, 1974 and 1983 and that the entire suit property was in exclusive possession of Devi Prasad Khowala w.e.f 26.02.1943 and the defendant nos. 2 and 3 have no right, title or interest over any part of the suit property in respect of which they can execute sale-deed. 8. In the pending suit, an application under Order-I Rule 10(2) CPC was filed by the petitioner on 02.11.2017 for his impleadment in the suit. 9. Contention raised on behalf of the petitioner is that, he, who has a valuable interest involved in the properties which are comprised under the sale-deeds dated 18.08.1998 and 17.08.1998, is a necessary party in the suit. Mr. Sudarshan Srivastav, the learned counsel for the petitioner submits that if the petitioner cannot be made a co-plaintiff in the suit atleast he should have been made a defendant so as to protect his rights in the property in question. 10. Who is a necessary party or a proper party in the suit has been explained by the Supreme Court in " Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar and Another , (1963) AIR SC 786". It has been held that the one whose presence is necessary for effective adjudication of the dispute is a necessary party and the one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding is a proper party. Under Order-I Rule 10(2) CPC the Court may at any stage of the proceeding, either suo-motu or upon an application of a party, struck out the name of any party who has been improperly joined and name of any person who ought to have been joined may be added in the suit. The philosophy behind Order-I Rule 10(2) CPC is justice, equity and good conscience. The object behind powers conferred upon the court to add a party in the suit has been incorporated under sub-rule 2 to Rule 10 itself. It provides that if presence of a person is necessary to enable the court to adjudicate upon and settle all the questions involved in the suit effectually and completely such person shall be joined in the suit. In " Amit Kumar Shaw & Another. vs Farida Khatoon & Another. It provides that if presence of a person is necessary to enable the court to adjudicate upon and settle all the questions involved in the suit effectually and completely such person shall be joined in the suit. In " Amit Kumar Shaw & Another. vs Farida Khatoon & Another. , (2005) 11 SCC 403 " it has been held that a person who has substantial, but not peripheral, interest involved in the suit can be joined as a party in the suit. 11. The petitioner is claiming a right for his impleadment in Title Suit No.108 of 1998 by virtue of his status as co-sharer [para-6 of the application], but at the same time it cannot be over-looked that he is a party in Title Suit No.31 of 1991. In the said suit the plaintiff- Srilal Khowala, who is brother of Devi Prasad Khowala, is seeking a decree for declaration that he is entitled for 1/6th share in the suit schedule properties, more particularly 1/18th share in schedule ''C'' properties and in Title Suit No.101 of 1964 a preliminary decree has been prepared in which 1/3rd share to Devi Prasad Khowala and Bhagwan Das Jain each has been allotted. Any decision in Title Suit No.108 of 1998 would not affect the petitioner. His right, title and interest, if any, shall be derived from share of his father that he gets from his grand-father. In fact, decision in Title Suit No.31 of 1991 in which the properties comprised under sale-deeds dated 18.08.1998 and 17.08.1998 are described as schedule ''C'' properties would decide the extent of share which he gets in the joint family property, which according to the plaintiff was amicably partitioned between the parties in the year 1983. 12. The apprehension of the petitioner, that if the plaintiff neglects or does not prosecute Title Suit No.108 of 1998, the properties comprised under sale-deeds dated 18.08.1998 and 17.08.1998 which comprise a part of the suit schedule properties in Title Suit (FD) No.101 of 1964 and Title Suit No.31 of 1991 would be illegally transferred in favour of defendant nos.2 and 3 and thus finally affect his rights as a co-sharer, is misconceived. In the first place, it is not the petitioner who can assist the court in effective and final adjudication of the controversy involved in Title Suit No.108 of 1998. In the first place, it is not the petitioner who can assist the court in effective and final adjudication of the controversy involved in Title Suit No.108 of 1998. The petitioner is not a party to the sale-deeds, he is not even a confirming party. Obviously, decision in Title Suit No.108 of 1998 would not bind him. Secondly, whatever share he gets through the preliminary decree in Title Suit (FD) No.101 of 1964 or in Title Suit No.31 of 1991 remains unaffected by the out-come of Title Suit No.108 of 1998; final decree proceeding in Title Suit (FD) No.101 of 1964/17 of 1968 has been kept in abeyance till final disposal of Title Suit No.107/1998 and Title Suit No.108 of 1998. 13. Similarly, impleadment of Mrs. Mina Rungta in Title Suit No.108 of 1998 or that other legal heirs and successors of Mahabir Prasad Khowala, except the petitioner, have been made parties in the said suit are not the grounds on which his addition in the suit as a party can be permitted. 14. Contention raised on behalf of the petitioner, that his exclusion from Title Suit No.108 of 1998 in which all other co-sharers have been made parties smacks of some unholy alliance between the parties, does not pertain to the merits of his claim for impleadment in the suit. Even if some compromise allegedly has been arrived at between the parties to the suit, in my opinion, it would not affect the petitioner''s share in the joint family property. The petitioner''s claim arises as a co-sharer in the joint family property. His apprehension, that the sale-deeds executed in favour of the defendant nos.2 and 3 by which a part of the suit properties has been transferred to them, if accepted by the plaintiff and other defendants under a compromise his share in the property would get affected, is unfounded. The doctrine of lis pendence embodies a public policy that it is necessary for administration of justice that the decision of a Court in a suit must bind all who claim an interest in the property and also those who derive title pendente lite. It is intended to protect accrued rights of the parties against alienations by the other party during pendency of the suit. As held by the Privy Council in " Gouri Dutt Maharaj vs. Sukur Mohammed and Others. It is intended to protect accrued rights of the parties against alienations by the other party during pendency of the suit. As held by the Privy Council in " Gouri Dutt Maharaj vs. Sukur Mohammed and Others. , (1948) AIR PC 147", "broad purpose of section 52 is to maintain status-quo unaffected by the act of any party to the litigation pending its determination". A decision in Title Suit No.108 of 1998 shall remain subject to the preliminary decree in Title (FD) Suit No.101 of 1964. The doctrine of lis pendence has been incorporated in Section 52 of the Transfer of Property Act, 1882. 15. Besides the above, about 20 years after Title Suit No.108 of 1998 was instituted the petitioner has filed an application under Order-I Rule 10(2) CPC which throws a serious doubt on his bona fide. It is well-known that on the ground of delay itself an application under Order-I Rule 10(2) CPC can be dismissed [refer " Bibi Zubaida Khatoon vs Nabi Hassan Saheb & Another. , (2004) 1 SCC 191", however, on merits also I do not find any substance in application dated 02.11.2017 filed by the petitioner under Order-I Rule 10(2) CPC for his addition in Title Suit No.108 of 1998. The trial Judge has rightly dismissed the said application. 16. The writ petition is dismissed.