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2021 DIGILAW 2387 (RAJ)

Vinod Kumar. v. Lrs. of Gopi Bai.

2021-12-20

SUDESH BANSAL

body2021
JUDGMENT 1. This miscellaneous appeal is filed by the appellants/plaintiffs assailing the order of remand dated 14.5.2012 whereby the First Appellate Court, the learned Addl. District Judge No. 1, Jaipur Metropolitan quashed the judgment of trial court dated 16.10.2006 and remanded the appellant-plaintiff's suit for permanent injunction for deciding afresh. 2. An application under Order 22 Rule 10 read with Section 151 CPC has been filed by two applicants namely; 1. Dr. Naveen Kishoria and 2. Dr. Aparna Kishoria alleging interalia that initially the suit property was in the ownership of Smt. Krishna Devi (original plaintiff) herein who instituted suit for permanent injunction but died during trial, so her legal representatives were substituted as plaintiff Nos. 1/1 to 1A who are appellant Nos 1 to 4 herein. They preferred this appeal against the remand order and during course of appeal, they sold the suit property to the appellant No. 5 namely Smt. Rami Devi vide sale deed dated5.4.2012 and, therefore, Rami Devi was added as appellant No. 5 in the appeal. Now both the applicants have purchased the suit property by dated 29.12.2015 from the appellant No. 5 Rami Devi and as all the rights, title and interest of appellants No. 1 to 5 in the suit property have been acquired by the applicants, therefore, they may be substituted/added as appellants in the present appeal in addition to or in place of appellants No. 1 to 5. 3. As far as the appellants No. 1 to 5 are concerned, they have already sold the property as mentioned here-in-above, therefore, have lost interest in the suit property and it is only the present applicants who have acquired rights/interest in the suit property. The copy of the registered sale deed dated 29.12.2015 through which the applicants purchased the suit property from the appellant No. 5 Smt. Rami Devi is placed on record. 4. Counsel for the applicants further submits that Smt. Gopi Bai was defendant No. 1 & UIT, Jodhpur was defendant No. 2 in civil suit. Before trial Court defendant No. 1 Gopi Bai passed away and in her place her legal representatives (respondents No. 1 to 5 herein) were substituted. Suit was decreed against LRs of defendant No. 1 so they filed first appeal. Before trial Court defendant No. 1 Gopi Bai passed away and in her place her legal representatives (respondents No. 1 to 5 herein) were substituted. Suit was decreed against LRs of defendant No. 1 so they filed first appeal. Now during the course of this appeal one of the LR of defendant No. 1 Gopi Bai respondent No. 4 Manju has also died and since other LRs are already on record, so her name may be deleted. 5. It has been submitted that as now the applicants have acquired ownership and interest in the suit property so it is for them to decide as to whether the proceedings of this litigation are to continue or may settle the dispute amicably. It is jointly urged by counsel for both the parties that in relation to the suit property dispute has been amicably settled between the applicants/purchasers and Respondents No. 1,2, 4 7 & 5 i.e. LRs of defendant No. 1 Gopi Bai. Respondents No. 2 UIT Jodhpur has no concern with the dispute in present suit and neither suit was not decreed against UIT nor any relief prayed against UIT, Jodhpur. 6. A written compromise said to be executed between parties has already been placed on record. Counsel for the applicant submits that in view of the settlement arrived at between them and the respondents in relation to suit property, they does not want to pursue the original suit itself and they may be allowed to withdraw the suit and consequently the appeal as well. 7. The respondents-defendants No. 1 to 5, the legal representatives of defendant No. 1 Gopi Bai are appearing through counsel Mr. HR Soni. Counsel for the respondents does not dispute and admits that the suit property has been purchased by the applicants Dr. Naveen Kishoria and Dr. Aparna Kishoria vide registered sale deed dated 29.12.2015 and, therefore, they have no objection, if the applicants are allowed to be substituted as appellants in place of previous appellants No. 1 to 5 and if the original suit itself is allowed to be withdrawn. As far as respondent No. 4 Smt. Manju is concerned, he admits that since she has died, therefore, her name may be deleted. 8. As far as respondent No. 4 Smt. Manju is concerned, he admits that since she has died, therefore, her name may be deleted. 8. After hearing counsel for both the parties, it reveals from the record that the original civil suit for permanent injunction was filed by one Smt. Krishna Devi (original plaintiff) against Gopi Bai defendant No. 1 and against UIT, Jodhpur(defendant No. 2). The original civil suit was decreed vide judgment dated 16.10.2006 in favour of the appellants No. 1 to 4 LRs of sole deceased (plaintiff) affirming their possession over the suit property (plot No. 468)and the respondents No. 1 to 5, being LRs of deceased Defendant No. 1, were restrained not to interrupt in the use and occupation of the suit property by the plaintiffs. 9. Against the judgment and decree dated 16.10.2006, the respondents 1 to 5 only preferred an appeal and the first appellate court, vide judgment dated 14.5.2012 set aside the judgment and decree of the trial court dated 16.10.2006 and remanded the suit for deciding afresh. This order of remand dated 14.5.2012 is under challenge in the present appeal. 10. Since the suit property has been purchased by the applicants through registered sale deed dated 29.12.2015, for which private respondents do not dispute rather admits that the right, title and interest of the suit property now vest and rest with the applicants only, in this view of the matter, the application filed by the applicants under Order 22 Rule 10 read with Section 151 CPC is allowed. Both the applicants Dr. Naveen Kishoria and Dr. Aparna Kishoria are allowed to be added as appellants No. 6 & 7. The another application to delete the name of the deceased respondent No. 4 Manju is also allowed. 11. The amended cause title enclosed with the application is taken on record. The Registry may up-lode the amended cause tile of this appeal on on-line also. 12. Since the newly impleaded appellants No. 6 & 7 who alleges to acquire absolute rights and interest of the suit property of the appellants No. 1 to 5 through registered sale deed. If they do not want to continue the appeal for the reason that seeks permission to withdraw the suit itself at this stage, there is no legal hurdle in allowing such prayer and, therefore, they are allowed to withdraw the original suit itself. If they do not want to continue the appeal for the reason that seeks permission to withdraw the suit itself at this stage, there is no legal hurdle in allowing such prayer and, therefore, they are allowed to withdraw the original suit itself. Learned counsel for the respondents have no objection in allowing the applicants to withdraw the original suit. Since the suit at this stage. Since the suit itself has been allowed to be withdrawn, the impugned order of remand dated 4.5.2012 does not remain in force. As such, with consent of both the parties this appeal is dismissed in view of the withdrawal of suit itself. 13. The stay application and the other applications if any are also disposed of. 14. The parties may file copy of this order before the trial court to terminate the proceedings of suit further. In addition to that the Registrar (Judicial) is directed to send the copy of this order to the trial court for further compliance. 15. The trial court, taking this order on record, may terminate the proceedings of civil suit and same be recorded as dismissed as withdrawn accordingly.