Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1617 (ALL)

Neelam Yadav v. Shree Devi

2022-09-30

VIPIN CHANDRA DIXIT

body2022
JUDGMENT : 1. Heard Sri Dharmala Yadav, learned counsel for the petitioners and Sri Gaurav Tripathi, learned counsel for plaintiffs-respondent Nos. 1 & 2 and perused the record. 2. This Misc. Petition under Article 227 of the Constitution of India has been filed by the petitioners for setting aside the order dated 7.4.2022 passed by Additional Civil Judge(Senior Division), Etawah rejecting the Application No.162-Ka for impleadment in Original Suit No. 234 of 2009 and order dated 30.5.2022 passed by the District Judge, Etawah in Civil Revision no. 16 of 2022 by which the civil revision filed by the petitioners was rejected. 3. Brief facts of the case are that plaintiffs-respondents had filed a suit for specific performance of the agreement to sell with respect to suit property on 28.5.2009. The suit was registered as Original Suit No. 234 of 2009. It is pleaded in the plaint that the defendant Nawab Singh is owner in possession of 0.67 dismal land of Khata no. 127, Bhumidhari no. 80-Kha area 0.9102 hectare situated in Village Manikpur Vishu, District Etawah. The defendant was agree to sell 0.48 dismal land of his share of 0.67 dismal on consideration of Rs.27 lakhs and had received Rs.7 lakhs in advance and executed the agreement to sell in favour of plaintiff, which was registered on 7.10.2008. It was agreed between the parties that rest amount will be paid within seven months and defendant will execute the sale deed in favour of the plaintiffs. Inspite of notice, the defendant Nawab Singh was not ready to execute the sale deed and as such, the suit for specific performance was filed by the plaintiffs. 4. During the pendency of suit, sole defendant Nawab Singh died and in his place, his wife and two sons were substituted as defendant Nos. 1/1, 1/2 and 1/3 and all the legal representatives were having 1/3rd share each in the said property. The defendant no. 1/3, son of Nawab Singh had executed a sale deed in favour of plaintiff no.1 on 11.12.2015 and defendant no.1/2 had executed sale deed on 3.10.2017 of his 1/3rd share of the property and the suit was remained pending for only 1/3rd share of the defendant No. 1/1 Smt. Parvati Devi who is wife of Nawab Singh. 5. The petitioners had purchased the share of defendant no. 5. The petitioners had purchased the share of defendant no. 1/1 Smt. Parvati Devi through registered sale deed on 27.4.2019 during the pendency of suit and they have filed an impleadment application. The impleadment application which is paper No. 162-Ka has been filed in the suit on the ground that the defendant no. 1/1 had sold her share to the applicants and now she is not interested to contest the suit and since they are bonafide purchasers of the share of defendant no. 1/1, they are necessary party to be impleaded as defendants in the suit. 6. The plaintiffs had filed detailed objection to the impleadment application stating therein that there was injunction order by the Court dated 14.3.2012 restraining the defendants from transferring the property in question. It is further stated in the objection that the sale deed which was executed in favour of applicants are without any prior permission of the Court. It is also pleaded that the applicants are belonging to the family of defendant Nawab Singh and they had full knowledge about the pendency of present suit and inspite of restrained order, the sale deed was executed by the defendant no. 1/1 on 27.4.2019. It is further pleaded that the plaintiffs had not sought any relief against the applicants and as such, their impleadment application is liable to be rejected. 7. The Court below, after considering the objection filed by plaintiffs, had rejected the impleadment application filed by present petitioners vide order dated 7.4.2022. The present petitioners had preferred a Civil Revision against the order dated 7.4.2022 which was registered as Civil Revision No. 16 of 2022 and the Civil Revision preferred by present petitioners was also dismissed by the revisional Court vide judgment and order dated 30.5.2022. Both the Courts below had recorded the finding that inspite of restrained order dated 14.3.2012, the sale deed was executed by the defendant no. 1/1 of her 1/3rd share in favour of applicants and the sale deed was executed without any prior permission of the Court. 8. Both the Courts below had recorded the finding that the impleadment application was filed on 12.7.2021 after about two years of execution of sale deed. 1/1 of her 1/3rd share in favour of applicants and the sale deed was executed without any prior permission of the Court. 8. Both the Courts below had recorded the finding that the impleadment application was filed on 12.7.2021 after about two years of execution of sale deed. Both the Courts below had also recorded the finding that the applicants are not party in the agreement to sell/contract and the suit was filed by the plaintiffs for specific performance of the agreement to sell in respect of suit property against the defendant and no relief has been claimed against the applicant(present petitioners) and as such the applicants are not necessary party. 9. Being aggrieved by the order dated 7.4.2022 passed by Additional Civil Judge(Senior Judge) Court No.4, Etawah and order dated 30.5.2022 passed by the Revisional Court the present petition under Article 227 of the Constitution of India has been preferred by the petitioners. 10. It is submitted by learned counsel for the petitioners that the petitioners are bonafide purchasers of the land in dispute. 11. They have purchased 1/3rd share of the defendant No.1/1 on 27.4.2019 through registered sale deed and they are in possession over the suit property. It is further submitted that the petitioners are interested party as they have purchased the share of defendant No. 1/1 and since she is not interested in contesting the suit, the applicants being necessary party to be impleaded as defendant in the suit and to allow to contest the suit. 12. It is further submitted by the learned counsel for the petitioners that the petitioners had no knowledge about the agreement to sell dated 7.10.2008 as well as pendency of suit and when they knew about the pendency of the suit, they immediately filed impleadment application and since the defendant No. 1/1 had already sold her entire share to the petitioners, they are necessary party to be impleaded in the suit and both the Courts below have committed illegality in rejecting the impleadment application filed by the petitioners. 13. On the other hand, learned counsel appearing for plaintiffs-respondents has submitted that the petitioners are not necessary party in the suit. The suit was filed by the plaintiffs against Nawab Singh for specific performance and no relief has been claimed against the present petitioners. 13. On the other hand, learned counsel appearing for plaintiffs-respondents has submitted that the petitioners are not necessary party in the suit. The suit was filed by the plaintiffs against Nawab Singh for specific performance and no relief has been claimed against the present petitioners. It is further submitted that the petitioners are also belonging to the family of Nawab Singh, the original owner and the defendant in the suit and they had full knowledge about the agreement to sell as well as pendency of the Original Suit for specific performance. It is further submitted that there was restraint order by the Court below dated 14.3.2012 not to transfer the suit property and without any permission of the Court, the sale deed was executed by the defendant no. 1/1 to the petitioners on 27.4.2019. 14. Lastly, it is submitted that plaintiffs had filed suit for specific performance against Nawab Singh and no relief has been claimed against the present petitioners and as such, petitioners are not necessary party and the impleadment application has rightly been rejected by the Courts below. Lastly, it is submitted that the law has been settled that the plaintiff cannot be compelled to implead any person in the suit and it is open to the plaintiff to file a suit against such person against whom relief has been claimed in the plaint. Since in the present case, no relief was claimed against the present petitioners, they are not necessary party in the suit. 15. Considered the rival submissions of learned counsel for the parties and perused the record. 16. It is admitted fact that the suit was filed by the plaintiffs for specific performance of the agreement to sell dated 7.10.2008 with respect to suit property against Nawab Singh. During the pendency of suit, Nawab Singh, original owner/sole dependent died and in his place, his widow and two sons were impleaded as defendant Nos. 1/1,1/2 and 1/3. The defendant no. 1/2 and 1/3 had already sold their 1/3rd shares of the suit property in favour of the plaintiffs and the suit was pending only in respect of 1/3rd share of defendant no. 1/1 who is widow of Nawab Singh. 17. 1/1,1/2 and 1/3. The defendant no. 1/2 and 1/3 had already sold their 1/3rd shares of the suit property in favour of the plaintiffs and the suit was pending only in respect of 1/3rd share of defendant no. 1/1 who is widow of Nawab Singh. 17. Both the Courts below have recorded the finding that the petitioners are not necessary party to be impleaded in the suit as they have purchased the land during the pendency of suit and there is a restrained order against the defendant not to sell the suit property and since no relief was claimed by the plaintiffs against the petitioners and the suit was filed only for specific performance against the defendant, as such, the petitioners being subsequent purchasers, are not necessary party to be impleaded. 18. Hon'ble the Apex Court in the case of Gurmeet Singh Bhatia vs. Kiran Kant Robinson reported in (2020) 13 SCC 773 has laid down the law that a third party or a stranger to the contract cannot be added to convert the character of one suit into different character and the plaintiff cannot be forced to add a party against whom he does not want to seek any relief. The relevant paragraphs 5.2, 5.3, 5.4 and 5.5 of the judgment are quoted hereunder:- 5.2 An identical question came to be considered before this Court in the case of Kasturi (supra) and applying the principle that the plaintiff is the dominus litis, in the similar facts and circumstances of the case, this Court observed and held that the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. It is further observed and held by this Court that two tests are to be satisfied for determining the question who is a necessary party. The tests are – (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. The tests are – (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. It is further observed and held that in a suit for specific performance the first test can be formulated is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract to sell. It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character. 5.3 In paragraphs 15 and 16, this Court observed and held as under: “15. As discussed hereinearlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As discussed hereinearlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted hereinearlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted hereinearlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. In the case of Vijay Pratap v. Sambhu Saran Sinha [ (1996) 10 SCC 53 ] this Court had taken the same view which is being taken by us in this judgment as discussed above. This Court in that decision clearly held that to decide the right, title and interest in the suit property of the stranger to the contract is beyond the scope of the suit for specific performance of the contract and the same cannot be turned into a regular title suit. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinearlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property. 16. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property. 16. That apart, from a plain reading of the expression used in sub rule (2) Order 1 Rule 10 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. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff-appellant on one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale.” That thereafter, after observing and holding as above, this Court further observed that in view of the principle that the plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsion of the rule of law. 5.4 In the aforesaid decision in the case of Kasturi(supra), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. 5.5 It is further observed and held by this Court in the aforesaid decision that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party defendants in such suit. The aforesaid observations are made by this Court considering the principle that plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law." In view of above discussion, since the suit was filed by the plaintiffs for specific performance of the agreement to sell with respect to the suit property against the original owner and the petitioners who are subsequent purchaser, purchased the disputed land on 27.4.2019 during pendency of the suit and even in the teeth of the stay order granted by the Court below dated 14.3.2012, the petitioners are not necessary party to be impleaded in the suit as there was no relief claimed by the plaintiffs against the present petitioners in the suit itself. Both the Courts below have rightly recorded the finding that petitioners are not necessary party and impleadment application filed by the petitioners was rightly dismissed by the Courts below and there is no illegality in any manner. No ground for interference is made out. The petition being devoid of merits, is dismissed accordingly.