JUDGMENT : 1. The petitioner has preferred this petition being aggrieved and dissatisfied with the Order dated 12.8.2016 passed by learned 17th Additional Senior Civil Judge, Surat below Exh-17 in Regular Civil Suit No.1365 of 2015 whereby the application of the petitioner for joining her as a party defendant in the Suit has been rejected by the trial Court. 2. The brief facts of the matter is that the plaintiff Dakshaben has filed the aforesaid suit against 5 defendants for declaration as to her right in the suit property and for getting her share in the suit property and for injunction against the 5 defendants, which includes her father. During pendency of the suit, the applicant herein has filed application for joining herself as a party respondent on the various grounds, at Exh-17. It is contended by the petitioner herein that she has sought for the share in the property of Jagjivanbhai Lallubhai, who has died on 3.7.1972 in the intestate condition. According to the petitioner, she is daughter of Jagjivanbhai Lallubhai and Jagjivanbhai had 2 wives out of which first wife Dhanuben is mother of the petitioner. According to her version, the plaintiff Dakshaben is the daughter of Mansukhbhai Jagjivanbhai who is real brother of the petitioner Manjulaben born from the wedlock of the Dhanuben and Jagjivanbhai. It is contended that the plaintiff has only made the parties, who are the heirs of Mansukhbhai and all the suit properties are in the name of Jagjivanbhai and the same are shown in the revenue record, as properties of late Shri Jagjivanbhai. According to her version, she has right in the properties as it is not divided. It is also contended that the reference of the revenue entries No.3907 and 3912, as made in the plaint, are false and illegal. It is also contended that the mutation entry has been concealed from other heirs and there is fraud committed for making those entries in revenue record. It is contended that she will take necessary legal proceedings thereof. She has also contended that as she has a right in the properties of the deceased Jagjivanbhai, she will take necessary recourse of law. 2.1 It is also contended in the application that her brothers have concealed the fact that the present petitioner is also one of the heirs of the deceased and thus they have tried to frustrate the right of the petitioner. 2.1 It is also contended in the application that her brothers have concealed the fact that the present petitioner is also one of the heirs of the deceased and thus they have tried to frustrate the right of the petitioner. It is also contended that the properties shown in the plaint is not sole ownership of Mansukhbhai but it's the ancestral properties and, therefore, the petitioner is a necessary party having right in the Suit properties. It is her contention that properties being ancestral properties and as no proper partition was made, and as she has the right to be heard, she has applied for joining her as defendant no.6 in the Suit, which has been rejected by the trial Court by impugned order. 2.2 It is also contended by the petitioner herein that large number of properties have been left behind by Jagjivanbhai, which has to be appropriately partitioned in view of the provisions of the Hindu Succession Act. It is also contended that late Shri Jagjivanbhai had not executed will and, therefore, no individual can claim as sole property right and cannot exclude all other legal heirs. It is also alleged that Mansukhbhai Jagjivanbahi i.e. respondent no.2 herein, somehow at the relevant point of time, was successful in mutating his name in the suit properties, to the exclusion of others. It is also contended that in the revenue proceedings, all the legal heirs including herself were never served with any Notice under Section 135(D) of the Bombay Land Revenue Code, 1879. It is also contended that contrary to well settled principles and against weight of evidence on record, the name of respondent no.2 is only reflected in respect of the said properties. It is also contended that somehow respondent no.1 vide Notarised document dated 2.4.2004 however malafidely tried to distribute the said properties in the name of his 3 sons i.e. respondent nos. 3 to 5 and vide entry no. 7084 dated 1.9.2010 the same was mutated. According to her version, it was challenged by respondent no.1 by way of Dispute case No.2321 of 2010 and vide order dated 23.12.2011 the said entry dated 1.9.2010 came to be rejected and it was held that all the said properties as such were owned by Jagjivanbhai Lallubhai since 1966. 7084 dated 1.9.2010 the same was mutated. According to her version, it was challenged by respondent no.1 by way of Dispute case No.2321 of 2010 and vide order dated 23.12.2011 the said entry dated 1.9.2010 came to be rejected and it was held that all the said properties as such were owned by Jagjivanbhai Lallubhai since 1966. 2.3 It is also contended that the petitioner was not aware about the aforesaid facts and circumstances and ultimately, in August, 2015, respondent no.1, in collusion with other respondents, preferred Regular Civil Suit No. 1365 of 2015 and claimed partition in respect of the said properties including other properties which are mentioned in the Schedule. It is contended that impression is being given that all the said properties came to be inherited by Mansukhbhai Jagjivanbhai to the exclusion of all other legal heirs. It is contended that there is no evidence to show that there was inter-se partition of the properties of Jagjivanbhai Lallubhai. According to her, the plaintiff and the respondents have filed the aforesaid Suit in collusion. It is also contended that they want decree to destroy the property rights of all other legal heirs. 2.4 It is also contended that despite the aforesaid facts and circumstances, the learned trial Judge has dismissed the application on the ground that in view of the order passed in Special Civil Suit No.71 of 1973, pertaining to the properties in respect of Survey No.9 i.e. block no.7 came to be in the name of Manjulaben and, therefore, the petitioner has no locus and/ or right, title or interest in respect of the subject property which is mentioned in the Schedule. According to the petitioner, the said finding is against the weight of evidence on record, inasmuch as so far as schedule property of Regular Civil Suit No.1365 of 2015, there was no partition sought for. It is also contended that the suit properties were not the subject matter of the proceedings of the year 1973. It is her contention that according to Hindu Law, the moment any Hindu expires intestate, then, proportionate notional share of all legal heirs devolves on such legal heirs as per the provisions of Hindu Succession Act and it is open to either of the legal heirs to seek partition of such property and/ or properties. It is her contention that according to Hindu Law, the moment any Hindu expires intestate, then, proportionate notional share of all legal heirs devolves on such legal heirs as per the provisions of Hindu Succession Act and it is open to either of the legal heirs to seek partition of such property and/ or properties. It is also contended that the provision of Order 1 Rule 10 of the Code of Civil Procedure, 1908 cannot be made applicable in respect of partition suit and all legal heirs would be entitled to have proportioned share in the partition suit preferred by either of the branch of the legal heirs and all legal heirs of Jagjivanbhai Lallubhai including the present petitioner is required to be made as defendant and this fact ought to have been considered by the learned trial Judge. 2.5 It is also contended that the observations of the learned trial Judge that the plaintiff has only sought for her share in the properties which belongs to respondent no.1 in the Suit, is perverse. It is her contention that when there was no initial partition regarding properties of late Jagjivanbhai, defendant no.1 cannot have any right by exclusion of other legal heirs. While referring to the case of Nawab S. Alikhan v. Nawab Jahbahadur, reported in (2009) 5 SCC 162 as well as Ajanta Transport, reported in (1975) 1 SCC 55 , the petitioner has submitted that the impugned order of the trial Court may be set aside and her application may be allowed. 3. The contesting resp. no.1 who is the original plaintiff has filed affidavit-in-reply wherein she has contended that the petitioner has not approached this Court with clean hands and has suppressed the material facts. It is contended by her that the properties described in the plaint were belonging to defendant no.1 but was shown as ancestral property and Item No. 2 and 3 of the Schedule property was originally belonging to Jagjivanbhai and after his death the property was shown in his wife's name and subsequently the partition had taken place between the 3 brothers and necessary mutation entry nos. 3907 and 3912 were made in the Revenue Record of the disputed land and house. It is also contended that the plaintiff had 1/6th share in the disputed property. She has also contended that all other properties, except described in Sr. 3907 and 3912 were made in the Revenue Record of the disputed land and house. It is also contended that the plaintiff had 1/6th share in the disputed property. She has also contended that all other properties, except described in Sr. No. 2 and 3 in the Schedule of the plaint, all other are self-acquired properties of the defendant no.1. It is contended that the petitioner has not described real facts of the present case that in earlier round of litigation, the partition was occurred between heirs of the deceased Jagjivanbhai and the Arbitrators had drawn the award and accordingly the Suit was decreed and each of the heirs had received their part of shares. It is also contended that the present petitioner has received her share in Sr. No.9 in earlier round of litigation which was subsequently disposed of by her consent and there was registered sale deed executed and she has also received other properties at the time of partition. It is also contended that the present petitioner has failed to challenge the partition which was effected between heirs of the deceased Jagjivanbhai before 4 to 5 decades, within reasonable period of time. It is also contended that the petitioner is in knowledge of the fact that the partition had taken place much earlier and the properties have been distributed amongst the heirs of the deceased so now she cannot initiate another litigation. It is also submitted that the learned trial Court has taken all this aspects into consideration and has rightly dismissed the application of the petitioner. 4. The petitioner herein namely Manjulaben has filed affidavit-in-rejoinder reiterating the facts of the main petitioner wherein she has also taken stand that the Special Civil Suit No.71 of 1973 was not filed by the parties but by the Arbitrators and no Notice was issued to her and she has not signed the said plaint inviting consent decree and she has no knowledge regarding the same and the same is not binding to her and the consent decree is, therefore, null and void. 4.1 She has also contended that all legal heirs were not joined as party in the said Suit and some third party persons who are unknown to her and the family have become plaintiff proclaiming themselves as Arbitrators, has filed the application before the concerned Court. 4.1 She has also contended that all legal heirs were not joined as party in the said Suit and some third party persons who are unknown to her and the family have become plaintiff proclaiming themselves as Arbitrators, has filed the application before the concerned Court. She has contended that no such partition of the properties of the deceased Jagjivanbhai has ever taken place. 5. Thereafter, contesting respondent no.1 Dakshaben has also filed another affidavit-in-rejoinder reiterating that the petitioner had full knowledge of the consent decree passed in 1973, inspite of that she has preferred not to prefer Appeal challenging the same and accept her share arising from decree and subsequently she has disposed of the property. 6. Heard Mr. Mehta, learned advocate for the petitioner and Mr. Mehul Shah, learned Senior Counsel for respondent no.1-original plaintiff at length. Considered the material placed on record and the decisions cited at bar. 7. Learned advocate Mr. Mehta for the petitioner has submitted the same facts, which are narrated in the Memo of Petition. He has contended that the properties belongs to one Jagjivanbhai and the properties of the Jagjivanbhai has not been partitioned amongst all the legal heirs. While referring to the Pedigree stated in the original application Exh-17, he has submitted that Mansukhbhai is a son of Jagjivanbhai and Dakshaben is daughter of Mansukhbhai and she has filed the suit No. 1365 of 2015 for partition and injunction. He has also contended that the present petitioner is daughter of Jagjivanbhai and, therefore, she has a right in the properties of the deceased Jagjivanbhai however, she has not been joined in the suit by the plaintiff, and therefore, she moved an application for joining herself as party defendant. While referring to the Special Civil Suit No.71 of 1973, he has contended that the observation of the learned trial Court with regard to earlier suit is not proper, as, in reality there is no partition of all the properties of Jagjivanbhai. While referring to the plaint of Special Civil Suit No.71 of 1973 (page-241 of the petition), he has submitted that the partition is said to be effected by virtue of some Arbitrators and the said Suit is filed by the Arbitrators seeking prayer as to decree to be drawn according to their resolution in Arbitration. It is contended by the learned advocate Mr. It is contended by the learned advocate Mr. Mehta for the petitioner that this cannot be taken into consideration, as it cannot be termed as partition of the entire properties of the deceased Jagjivanbhai. It is also contended that no notice of the Arbitration was ever given to the heirs of the deceased Jagjivanbhai. He has also contended that Arbitration Suit ought to have been filed by the heirs of the deceased Jagjivanbhai but in reality, it is filed by Arbitrators. It is also submitted that there is no signature of Manjulaben in the said Arbitration agreement. 7.1 According to him, there is no partition giving necessary share of the properties in favour of Manjulaben. He has stated that the plaintiff and the defendant of the Suit No. 1365 of 2015 are collusive in nature and, therefore, the present petitioner should be joined as a party defendant and issues are required to be framed. According to him, the real question is whether in reality the partition have ever been made of the properties of deceased Jagjivanbhai Lallubhai. By relying upon the following decisions, he has submitted to allow the present petition by setting aside the order passed below Exh-17 in Regular Civil Suit No.1365 of 2015. (1) In case of Radhoba Baloba Vagh and others v. Aburao Bhagwantrao Shirole, reported in AIR 1929 PC 231 ; (2) In the case of Shri Veerayya Mahantayya Koppad & Ors. v. Smt. Geetha W/o. Gangadha Hiremath & Ors., reported in 2008 AIHC 1407 ; (3) In the case of (Thakur) Nirman Singh and others v. Thakul Lal Rudra Partab Narain Singh and others, reported in AIR 1926 PC 100 ; (4) In the case of Kasturi v. Iyyamperumal and others, reported in AIR 2005 SC 2813 . 8. Mr. Mehul Shah, Learned Senior Counsel with Mr. Nirav Sanghavi, learned advocate for the respondent no.1 original-plaintiff has submitted that as per the pedigree furnished by the petitioner herein, the suit filed by the plaintiff is a branch of Mansukhbhai and the plaintiff has sought for partition of the properties belonging to branch of Mansukhbhai and not relating to other properties. Learned Senior Counsel Mr. Mehul Shah has also contended that Manjulaben is a sister of Mansukhbhai. Learned Senior Counsel Mr. Mehul Shah has also contended that Manjulaben is a sister of Mansukhbhai. He has also contended that in 1973, as per the award and consent decree, partition of the properties belonging to Jagjivanbhai has been carried out and the petitioner herein has already got her share and she has disposed of the same. According to learned Senior Counsel Mr. Mehul Shah, the petitioner herein, therefore, has no right to join as party defendant in the Suit No.1365 of 2015. He has also contended that the plaintiff has filed the Suit for declaration and permanent injunction and there is no relief for partition of the properties. According to learned Sr. Counsel Mr. Mehul Shah, if the petitioner is permitted to join as party defendant then the nature of the Suit will change and will become Suit for partition of the properties of late Shri Jagjivanbhai whereof partition has already been made in 1973 by consent. While referring to the plaint of earlier Suit and the present Suit, he has submitted that plaintiff has filed Suit only relating to the properties which are belonging to her father Mansukhbhai. He has also submitted that the defendants in the present Suit are of the branch of Mansukhbhai. While referring to the plaint wherein the properties have been mentioned, Mr. Mehul Shah learned Sr. Counsel has submitted that the plaintiff has only demanded her share in the properties belonging to Mansukhbhai. He has invited the attention of this Court regarding appointment of Arbitrators in 1973 and award passed therein at Page-265. While referring to the documentary evidence, he has also submitted that as per the consent terms, the partition between 3 brothers have taken place and by consent, properties have been given to Mansukhbhai and 3 land properties want to the share of Mansukhbhai. While referring to Page-180, Mr. Mehul Shah, learned Sr. Counsel has submitted that sale-deed has been executed by Manjulaben i.e. present petitioner with her Sister on 8.1.2001 and has sold her share in the properties of late Shri Jagjivanbhai and that action was carried out by Manjulaben-petitioner herein, acting upon the award of the Arbitrators. While referring to page-183, learned Sr. Counsel has also submitted that the petitioner herein has sold her properties to third party and there are her signatures on Page-186 and 187. Mr. Shah, learned Sr. While referring to page-183, learned Sr. Counsel has also submitted that the petitioner herein has sold her properties to third party and there are her signatures on Page-186 and 187. Mr. Shah, learned Sr. Counsel has also contended that the petitioner herein has suppressed all these material facts while filing the Application for joining her as party defendant. 8.1 While referring to the list produced in Regular Civil Suit No.1365 of 2015, Page-176 of the petition, the learned Sr. Counsel has submitted that the present petitioner with her co-sharer has sold out joint properties which have come to their share, by virtue of award of the Arbitrators to third party. According to him, this fact suggest that Manjulaben has already got her share in the properties of the Jagjivanbhai as she is one of the vendors of the properties in favour of the third party. He has also contended that there is signature of Manjulaben in each document. While referring to the Entry in the property card (page-288 and 289), learned Sr. Counsel Mr. Mehul Shah has submitted that this fact suggest that the property which has been sought to be partitioned by the plaintiff of Regular Civil Suit No.1365 of 2015 is of the ownership of Mansukhbhai only. 8.2 Mr. Mehul Shah, learned Sr. Counsel has also contended that the third party – i.e. petitioner has never challenged the consent decree and has acted upon the same and sold her right over the property to the third party and she has not challenged the decree of 1973. He has also contended that the third party – i.e. petitioner has also got the copy of the document in 2016 and yet has not challenged the same. Learned Sr. Counsel Mr. Mehul Shah has also submitted that the third party – i.e. petitioner has not initiated any proceedings against the consent decree. He has also contended that there is also question of limitation and the application filed by the petitioner herein is nothing but abuse of process of law and the learned trial Court has rightly dismissed the said application and the impugned order is legal and there is no perversity in the said order. He has also contended that there is also question of limitation and the application filed by the petitioner herein is nothing but abuse of process of law and the learned trial Court has rightly dismissed the said application and the impugned order is legal and there is no perversity in the said order. He has also contended that the present petitioner has no locus in the present Suit and there is serious suppression of material fact by the petitioner and this fact itself is sufficient to dismiss the present petition. He has also relied upon the following decision and has prayed to dismiss the present petition. 1. Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and others, reported in (2010) 7 SCC 417 ; 2. Vidur Impex and Traders Pvt. Ltd. and Ors. v. Tosh Apartments Pvt. Ltd. and Ors, reported in AIR 2012 SC 2925 ; 3. Kanaklata Das and others v. Naba Kumar Das and others, reported in AIR 2018 SC 682 ; 4. Revajeetu Builders and Developers v. Narayanswamy and sons and others, reported in (2009) 10 SCC 84 ; 5. Alkapuri Cooperative Housing Society Ltd. v. Jayantibhai Naginbhai, reported in AIR 2009 SC 1948 ; 6. C.M.S. Traffic Systems Ltd. v. Municipal Corporation for the City of Ahmedabad, reported in 2004 (3) GCD 2567 . 9. In rejoinder, Mr. Mehta, learned advocate for the petitioner has submitted that the present petitioner was not party to the earlier suit. While referring to the sale deed (Page-180), Mr. Mehta learned advocate has submitted that it is only a portion of share of the properties has been sold and not the Suit properties. Regarding another registered sale deed at Page-198 and onwards, he has submitted that it is also pertaining to residential house and portion of her share is shown and not entire share of the suit properties. He has further submitted that the proceedings of 1973 was initiated by the Arbitrators and not by the parties. According to him, the controversy between the parties requires consideration and there are triable issues and, therefore, the impugned order requires to be set aside as the learned trial Court has not properly considered the provisions of law and the facts of the case in proper perspective. 10. According to him, the controversy between the parties requires consideration and there are triable issues and, therefore, the impugned order requires to be set aside as the learned trial Court has not properly considered the provisions of law and the facts of the case in proper perspective. 10. In case of Radhoba Baloba Vagh and others v. Aburao Bhagwantrao Shirole (supra), the Privy Council has observed as under: “There is no definition of the word “exclusion” in the Limitation Act and the question whether a person has been excluded from joint family, must depend upon the facts of the particular case. An intention to exclude is an essential element. It is necessary, therefore, for the Court to be satisfied that there was an intention on the part of those in control and possession of the joint family property to exclude the person and that exclusion was to his knowledge.” 11. In case of Shri Veerayya Mahantayya Koppad & Ors. v. Smt. Geetha W/o. Gangadha Hiremath & Ors. (supra), the High Court has observed that: “when there is no foundation laid to prove the factum of exclusion, the limitation under Art.110 will not start unless it is shown that a person was excluded from a joint family property to enforce his rights to share therein. In the said decision, the Karnataka High Court has also referred to the decision of the Apex Court in case of Sadasivan v. K. Doraiswamy, reported in AIR 1996 SC 1724 dealing with the question of exclusive possession by a coparcener under Arts. 64 and 65 of the Limitation Act, has held that exclusion possession of a co-sharer does not amount to adverse possession against other co-sharers unless such possession is exercised by ousting the other co-sharers.” 12. In the case of (Thakur) Nirman Singh and others v. Thakul Lal Rudra Partab Narain Singh and others (supra), it was observed that “it is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. It was also observed therein that orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense, to the exclusion, for example, of all claims of the other members of the family as co-owners or for maintenance or otherwise, as revenue authorities have no jurisdiction to pronounce upon the validity of such a claim”. 13. In the case of C.M.S. Traffic Systems Ltd. v. Municipal Corporation for the City of Ahmedabad (supra), in Para-19 the Court has observed as under: “19. Having heard the learned Sr. Counsel for the parties at length, this Court is of the opinion that, a matter wherein prima-facie the plaintiff is guilty of suppression of material fact while obtaining interim relief which has remained operative since 16th March, 2004 till date. Having considered all the aspects of the matter in light of the documents produced in the form of paper book and having perused the order passed by the learned Judge, more particularly, the observations made in paragraph 14, this Court has no doubt that the plaintiff indulged in suppression of material fact besides jugglery of words and by misleading the Court obtained the interim injunction.” 14. In the case of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and others (supra), the Court has observed that: “15. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1, Rule 10(2) of Code of Civil Procedure ('Code' for short), which provides for impleadment of proper or necessary parties. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1, Rule 10(2) of Code of Civil Procedure ('Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: "10(2) Court may strike out or add parties-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." 14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 15. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance”. 15. In the case of Kanaklata Das and others v. Naba Kumar Das and others (supra), it is observed that: “the plaintiff being dominus litis cannot be compelled to make any third party person as party to the suit, be that a plaintiff or the defendant, against his wish unless such person is liable to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how is presence is necessary for the effective decision of the suit.” 16. In case of Kasturi v. Iyyamperumal and others (supra), regarding the question of necessary party, it has been observed that “two tests are to be satisfied for determining the question who is necessary party. This tests are (I) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (II) no effective decree can be passed in the absence of such party. This tests are (I) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (II) no effective decree can be passed in the absence of such party. From a plain reading of the expression, used in sub-rule (2), Order 1, Rule 10 of the CPC, "all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff/ appellant and the defendants inter se or questions between the parties to the suit and a third party.” 17. In the case of Vidur Impex and Traders Pvt. Ltd. and Ors. v. Tosh Apartments Pvt. Ltd. and Ors. (Supra), it was observed that: “The broad principles for impleading of parties are as under: “1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by Court. 3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above-board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 6. 5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above-board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the parayer for impleadment”. 18. In case of Revajeetu Builders and Developers v. Narayanswamy and sons and others (supra), the Apex Court has enumerated the factors to be taken into consideration while dealing with the applications for amendment in Para-63 as under: “On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) whether the amendment sought is imperative for proper and effective adjudication of the case? (2) whether the application for amendment is bona fide or mala fide? (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI, Rule 17. These are only illustrative and not exhaustive”. 19. In the case of Alkapuri Cooperative Housing Society Ltd. v. Jayantibhai Naginbhai (supra), it is observed by Apex Court that: “It is neither in doubt nor in dispute that the court's jurisdiction to consider an application for amendment of pleading is wide in nature, but, when, by reason of an amendment, a third party is sought to be impleaded not only the provisions of O.VI, R.17, Code of Civil Procedure (C.P.C.) but also the provisions of O.I, R. 10, C.P.C. would come into play. When a new party is sought to be added, keeping in view the provisions of sub-rule (5) of Rule 10 of Order I, C.P.C., the question of invoking the period of limitation would come in.” 20. At this juncture, it is worthwhile to refer to Order 1 Rule 10 of the Civil Procedure Code, which reads as follows: “R. 10. Suit in name of wrong plaintiff-(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties. The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the, Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877, section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons”. 21. (5) Subject to the provisions of the Indian Limitation Act, 1877, section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons”. 21. Under Order 1 Rule 10 of Civil Procedure Code the question of impleadment of the parties is to be decided on the touch-stone of the provision referred to above, which provides that only a necessary or a proper party may be added. Mere interest of the party in the fruits of litigation cannot be a true test for his being impleaded as a party. The object of the Rule is not to change the scope and character of the Suit by adding new parties and to enable them to litigate their own independent claims but simply to hold that to avoid unnecessary litigation which might otherwise become necessary. 22. Further a party will be necessary only if there is a right to relief against him in respect of the suit matter and his presence is necessary for the effectual and complete adjudication of all the question involved in the Suit. Moreover, if for the adjudication of “real controversy” between the parties on record, the presence of third party is necessary; then it can be impleaded. However, the theory of dominus litus cannot be over stretched in the matter of impleading of parties, because it is the duty of the Court to ensure that if for deciding the real matter in dispute, a person is necessary party, the Court can order such person to be impleaded. 23. Now, so far as partition Suit relating to ancestral property is concerned, all persons interested in the properties are necessary parties to Suit. Further, to a suit for partition of the joint family property it is not only those who are entitled to a share but also those who have a right to maintenance or to a marriage provision out of the joint family property are necessary party. In a suit for partition of one branch against other branches, the heads of the branches alone are necessary parties and the member of the branch though not necessary party may be proper party in a given case. 24. In a suit for partition of one branch against other branches, the heads of the branches alone are necessary parties and the member of the branch though not necessary party may be proper party in a given case. 24. Considering the legal provisions, on perusal of the factual aspects of present case, it appears that plaintiff Dakshaben has filed the Suit against her father and others for her share in the properties of her father. She is grand-daughter of late Jagjivanbhai. She has narrated the properties in Para-2 of the plaint (Page-105 of the paperbook) showing the 7 properties. She has also narrated that the Schedule property of Sr. No.2 and 3 were of the ownership of late Jagjivanbhai and thereafter it has come to the share of her father. It is also averred that her father had purchased the other suit property shown in Schedule at Sr. Nos. 3 to 7 and thus she has 1/6th share in those properties. 25. Now, the stand of the third party-present petitioner is that she being the daughter of late Jagjivanbhai, and she has share in the suit properties and has alleged that the revenue record No.3907 and 3912 have been entered by fraud. She has also averred that she will take necessary legal recourse with regard to her claim. It is also contended by her that her brothers have concealed the fact that she has share in the property and have got entered false entry in the revenue record. She has prayed to join her as defendant no.6 in the suit filed by the original plaintiff Dakshaben. 26. On perusal of the documentary evidence, the sale-deed at page-178, it is found that third party-present petitioner has sold her share in favour of one Mr. Devraj Munjani on 8.1.2001. It is pertinent to note that in that sale-deed there is clear averment made regarding the decree passed by the Civil Court in Suit No.71 of 1973. It is also averred in the said document regarding the partition of the entire property of late Jagjivanbhai. It also appears from another sale-deed (page-190 of the paper-book) that the petitioner - third party Manjulaben has also executed the same in favour of Mansukhbhai. It is also averred in the said document regarding the partition of the entire property of late Jagjivanbhai. It also appears from another sale-deed (page-190 of the paper-book) that the petitioner - third party Manjulaben has also executed the same in favour of Mansukhbhai. It appears that Manjulaben has knowledge regarding those document especially partition of property of Jagjivanbhai and she has sold her share in respect of the properties belonging to her father late Jagjivanbhai to others. 27. Further, it transpires from page-241 which is a Civil Suit No.71 of 1973 that the decree thereon has been passed by the learned trial Court. Of course, the Suit was filed by the Arbitrators. It also appears from the decree at Page-246 of the Paper-book that the decree has been passed on the basis of consent agreement at Exh-9 of the Suit and the contents of award has been incorporated in the decree. The type copy of the same has been produced in the matter during the argument and on perusal of the same it is found that there was initial partition between the heirs of late Jagjivanbhai. Now, admittedly this decree has not been challenged by the present applicant, even she has accepted this fact of partition by decree passed in the Suit No.71 of 1973, which has been averred in the sale-deed as referred to hereinabove. 27.1 If she has any right, title and interest in the property then she has to challenge the decree in the Suit No.71 of 1973. But, she cannot be made party to the present suit as the plaintiff has only sought for her right in the properties of her father as her father had independent share by partition between the heirs of the deceased Jagjivanbhai. It also reveals that after the decree of 1973, the present petitioner has sold her right in the property by aforesaid sale deeds and until the filing of the present suit by the petitioner against her father, the present petitioner has not taken any proceedings whatsoever. Thus, the property involved in the matter is pertaining to Mansukhbhai and considering the peculiar facts and circumstances of this case, the present petitioner cannot be said to be a proper or necessary party in the Suit. 28. Thus, the property involved in the matter is pertaining to Mansukhbhai and considering the peculiar facts and circumstances of this case, the present petitioner cannot be said to be a proper or necessary party in the Suit. 28. On perusal of the impugned order, it appears that considering the averment made on behalf of both the sides, learned trial Court has observed that the Schedule property at Sr. No2 and 3 were of the original ownership of late Jagjivanbhai and thereafter it fall with the share of Chimanbhai, Parbhubhai, Mansukhbhai and Manjulaben and Mutation entry thereof being Entry No.3907 was made and thereafter it was partitioned between the 3 brothers and ultimately it came to the share of defendant no.1, which was mutated by entry no.3912. The trial Court has also referred to the averment made in the pleadings of the parties that there was earlier partition and third party has got her share. 29. The trial Court has taken into consideration all aspects while rejecting the prayer of the petitioner to join her as defendant no.6 in the Suit. The impugned order of the trial Court is sustainable in the eyes of law and no perversity has been committed by the trial Court in passing such order. 30. In view of the above, the present petition is required to be dismissed and accordingly it is dismissed. Rule discharged. No order as to costs. Civil Application, if any, stands disposed of accordingly. FURTHER ORDER At this stage, Mr. Mehta, learned advocate for the petitioner prays to continue the interim injunction which has been granted till today against the proceedings of the Suit. The same is objected by learned advocate for the respondent that the suit cannot be stayed and within short period, the suit is likely to be disposed of. Considering the submission and reasons given in the order, prayer for continuing the stay is rejected. R&P to be sent back.