Gujarat High Court
Randhirsinhji Girjojirao Dhamdhere vs Legal Heirs Of Decd. Ajitsinhrao ... on 6 October, 2025
NEUTRAL CITATION
C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15696 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 15696 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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RANDHIRSINHJI GIRJOJIRAO DHAMDHERE & ANR.
Versus
LEGAL HEIRS OF DECD. AJITSINHRAO RAMCHANDRARAO
DHAMDHORE & ORS.
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Appearance:
KAUSHAL H PATEL(9328) for the Petitioner(s) No. 1,2
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2
MR. DHAVAL D. VYAS, SR. ADVOCATE WITH
ALAY A DAVE(8219) for the Respondent(s) No. 9
DELETED for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1.1,1.2,1.3,3
SERVED BY RPAD (N) for the Respondent(s) No. 2,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 06/10/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Alay A. Dave waives service of notice of rule on behalf of respondent No.9. Though served, none appeared on behalf Page 1 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined of rest of the respondents.
2. Today, by way of separate order, legal heirs of deceased- respondent No.1.2 having brought on record in this writ application.
3. Considering the fact that during the life time, neither respondent No.1.2 nor his legal heirs chooses to appear in the matter, as such fresh notice of rule not requires to be issued upon his legal heirs i.e. newly added respondents No. 1.2 to 2.3 (See : Order XXII Rule 4 (4) of CPC).
4. Heard learned advocate Mr. S.P. Majmudar with learned advocate Mr. Kaushal Patel for the petitioners and learned senior advocate Mr. Dhaval D. Vyas with learned advocate Mr. Alay A. Dave for respondent No.9.
5. With the consent of the parties, the matter is taken up for final hearing.
6. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or directions quashing and setting aside order dated 19.09.2018 passed by learned Additional Senior Civil Judge, Vadodara, below Page 2 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined application Exh.311 in Special Civil Suit No.12 of 1994 (at ANNEXURE-K hereto);
(B) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of the 19.09.2018 impugned order dated passed by learned Additional Senior Civil Judge, Vadodara, below application Exh.311 in Special Civil Suit No.12 of 1994 (at ANNEXURE-K hereto);
(C) Pass such any other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
7. As far as possible, the parties will be referred as per their original position in the suit.
Short facts of the case.
8. The petitioners herein are original plaintiffs, whereas respondents herein are original defendants. Respondent No.9 herein is a party, who allowed to be joined in the suit i.e. Special Civil Suit No. 12 of 1994 pending before the Senior Civil Judge, Vadodara.
8.1 The suit is filed seeking declaration and injunction by the plaintiffs whereby, the land bearing survey no. 655 ad- measuring 14600 sq. mtr. situated at Vadodara city to be declared as sole ownership of the plaintiffs and others have no right, title interest in the suit property.
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8.3 It appears that defendants No.1 to 3 have first executed unregistered an Agreement to Sell (hereinafter referred to as 'ATS') on 13.05.1992 in favour of respondent No.9 herein and subsequently, a registered agreement to sell was executed on 28.11.2002.
8.3 Respondent No.9 herein having ATS in his favour and on that basis, filed impugned application below Exh. 311 on 05.07.2017 under Order I rule 10 (2) of CPC to be joined in the suit. The plaintiffs appear to have opposed the prayer made in the impugned application and contested it on merit.
8.4 After hearing the parties, the trial Court vide its order dated 19.09.2018 allowed the impugned application. Hence, the present writ application filed at the instance of plaintiffs.
Submission of the petitioners- original plaintiffs
9. Learned advocate Mr. S.P. Majmudar with learned advocate Mr. Kaushal Patel would respectfully submit that the trial Court has committed serious error of law by allowing the impugned application, inasmuch as not Page 4 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined considered the fact that respondent No.9 is neither having right, title interest nor holding any document, thereby cannot confer any ownership title over the suit property to him. It is submitted that when respondent No.9 is not holding any such document, he would not be either necessary or proper property to be joined in the suit.
9.1 Learned advocate Mr. Majmudar would further submit that the trial Court has committed jurisdictional error by equating ATS with Sale Deed. It is submitted that trial Court erroneously relied upon Order 22 rule 10 of CPC, while allowing the impugned application. It is further submitted that as per Section 54 of Transfer of Property Act, 1882 (hereinafter referred to as the Act, 1882), no right title interest accrued in favour of any ATS holder. It is respectfully submitted that in absence of any sale-deed, so executed by defendants No.1 to 3 in favour of respondent No.9, his presence is neither required nor necessary in the suit.
9.2 Learned advocate Mr. Majmudar would submit that when it has come on record that respondent no.9 has no direct interest in the suit property in question, as per settled legal position of law, he is not required to be joined in the suit property, either as a necessary party or proper party. It is respectfully submitted that the plaintiffs are dominus litis and against their wish, no party can be joined.
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(i) Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Private Limited reported in 2010 (7) SCC 417.
(ii) Sudhamayee Pattnaik and others Vs. Bibhu Prasad Sahoo and others reported in 2022 (17) SCC 286.
(iii) Nayankumar Bhagvanbhai Patel Mevda Vs. Ashokbhai Chhotabhai Patel reported in 2025 (2) GLR 1339.
9.4 Making the above submissions, learned advocate Mr. Majmudar would request this Court to allow the present writ application.
Submission of Respondent No.9
10. Learned senior advocate Mr. Dhaval D. Vyas with learned advocate Mr. Alay Dave would submit that the trial Court has not committed any serious error of law, much less any jurisdictional error, whereby this Court should not require to interfere with the well-reasoned order passed by the trial Court. It is submitted that the trial Court has not Page 6 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined only considered the fact that respondent No.9 is having direct interest in the suit property but also felt that his presence is required for effective adjudication of the suit.
10.1 Learned senior advocate Mr. Vyas would further submit that the trial Court has correctly observed in its impugned order that by way of registered ATS executed by defendant in favour of respondent No.9, interest devolve in favour of respondent No.9. It is respectfully submitted that respondent No.9 having filed suit for specific performance against the party to ATS wherein plaintiffs are also joined, it would be desirable that respondent No.9 be joined in the suit.
10.2 Learned senior advocate Mr. Vyas would emphasis that when respondent No.9 having filed suit for specific performance pursuance of an ATS, thereby, he is claiming ownership and also assert transferable interest in the suit property. It is submitted that once its shown semblance of interest in the suit property by respondent No.9 on the basis of registered ATS, as per settle legal position of law, respondent No.9 required to be joined in the suit.
10.3 Learned senior advocate Mr. Vyas would further submit that defendants No. 1 to 3 with whom an ATS was entered upon by respondent No.9, sold suit land by way of Page 7 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined registered sale-deed in the year 2003 to third party thereby, there would be an apprehension in the mind of respondent No.9 that suit filed by plaintiffs herein could not be contested effectively on merit. It is respectfully submitted that such apprehension was pressed into service before the trial Court and the same is accepted by the trial Court, thereby, allowed the impugned application.
10.4 Learned senior advocate Mr. Vyas would respectfully submitted that once such subjective satisfaction recorded by the trial Court as regards collusive behaviour of the parties to the suit, whereby, right of respondent No.9 could be frustrated, in that view of the matter, the presence of respondent No.9 is required at least as a proper party, even though not as a necessary party.
10.5 Lastly, learned senior advocate Mr. Vyas would humbly request this Court that in a case where this Court is not inclined to accept any of the above submissions made by him, in that circumstances, at least liberty may be given to respondent No.9 to request the trial Court to hear and decide both the suits together, i.e subject matter of the suit in present writ application & suit filed by respondent No.9 seeking specific performance of ATS.
10.6 To buttress his argument, learned senior advocate Page 8 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined Mr. Vyas would refer and rely upon the decisions of the Hon'ble Apex Court.
(i) Naveen Kumar Jain Vs. Pushplata Singh and Ors.
reported in AIR Online 2019 SC 2139.
(ii) Vinod Infra Developers Ltd. Vs. Mahaveer Lunia and others reported in 2025 SCC Online SC 1208.
10.7 Making the above submissions, learned senior advocate Mr. Vyas would request this Court to reject the present writ application.
11. No other and further submissions have been made by any of the parties.
Point for determination
(i) Whether in the facts and circumstances of the case, respondent No.9 being ATS holder executed by defendant No.1 to 3, either necessary or proper party, to be joined in the suit?
(ii) Whether in the facts and circumstances of the case, suit filed by petitioners - original plaintiff against respondents and suit filed by responder No.9 seeking specific performance of the suit filed against rest of respondents including petitioners, can be tried together by trial Court?
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12. The facts which are stated hereinabove are not in dispute. The suit filed by the plaintiffs seeking declaration, injunction against the original defendants, wherein order of status quo qua possession of suit property granted by the trial Court, which is operating as on date.
13. It appears that original defendants No. 1 to 3 initially entered into an unregistered ATS on 13.05.1992 and later on registered ATS on 28.11.2002 in favour of respondent No.9. So, on the basis of such ATS, respondent no.9 filed impugned application to be impleaded as a defendant in the suit instituted by the petitioners herein seeking declaration, about exclusive right, title, interest and ownership over the suit property.
14. It is settled legal position of law that mere agreement to sell executed in favour of any person would not confer any interest in favour of such person.
15. As per Section 54 of Transfer of Property Act, 1882 which reads as under :-
Section 54 in The Transfer Of Property Act, 1882 Page 10 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined
54. "Sale" defined.--
"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made -- Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."
16. At this stage, it would be apt to refer and rely upon the recent pronouncement of Honourable Supreme Court dated 07.01.2025 in a case of Indian Overseas Bank vs. M. A. S. Subramanian in Civil Appeal No. 282 & 283 of 2025 wherein held as under:-
"[6] It is well settled that an agreement for sale in respect of an immovable property does not transfer title in favour of the purchaser under the agreement. In view of Section 54 of the Transfer of Property Act, 1882, an agreement for sale does not create any interest in the property. The only mode by which an immovable property worth more than Rs.100/- (Rupees one hundred) can be sold is by a sale deed duly registered in accordance with the Indian Registration Act, 1908."
(emphasis supplied) 16.1. The petitioner having no direct interest in the Page 11 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined immovable property having not possessing any title document, he would neither be necessary party nor proper party to decide lis in pending suit in question.
17. It would again be profitable to refer full bench decision of Hon'ble Apex Court in a case of Razia Begum vs. Sahebzadi Anwar Begum reported in AIR 1958 SC 886 wherein held thus:
"[13] As a result of these considerations, we have arrived at the following conclusions:
(1) That the question of addition of parties under R. 10 of O. 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in S. 115 of the Code;
(2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject- matter of the litigation;
(3) Where the subject-matter of the litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy;
(4) The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Ss. 42 and 43 of the Specific Relief Act;
(5) In cases covered by those statutory provisions, the court is not Page 12 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission;
(6) The result of a declaratory decree on the question of status, such as in controversy in the instant case, affects not only theparties actually before the Court, but generations to come, and in view of that consideration, the rule of 'present interest', as evolved by case law relating to disputes about property does not apply with full force; and (7) The rule laid down in S. 43 of the Specific Relief Act, is not exactly a rule of res judicata. It is narrower in one sense and wider in another."
(emphasis supplied)
18. Thus, in view of the aforesaid provision, and what is deduced from the aforesaid decisions of Hon'ble Apex Court, wherein its laid down that unless a person, who intends to be joined as a party in the suit, have direct interest in the subject matter of litigation, he cannot be joined in the suit. Having observed hereinabove that mere ATS would not confer interest in favour of respondent No.9, by no stretch of imagination, it can be considered that he has direct interest in the subject matter of litigation.
19. The trial Court has committed serious error of law by equating ATS with sale-deed, inasmuch as, having so observed while passing the impugned order that by way of agreement to sell it devolve interest in favour of respondent No.9 by placing reliance upon Order 22 rule 10 of CPC, Page 13 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined whereby allowed the impugned application, and ordered to implead respondent No.9 in the suit.
20. According to my view, there is complete misconception on the part of the trial Court while placing reliance upon Order XXII rule 10 of CPC, inasmuch as respondent No.9 cannot claim any right, title, and interest on the basis of mere ATS executed by the defendant in his favour.
21. The judgments which are relied and cited by the learned senior advocate Mr. Vyas for respondent No.9 would not stricto sensu applied to the present case, inasmuch as the suit filed by respondent No.9 seeking specific performance of ATS yet to be decided on merit. Unless such suit decreed in favour of respondent No.9, no right accrued in favour of respondent No.9 qua suit property.
22. Learned senior advocate Mr. Vyas having so cited the judgments of the Hon'ble Apex Court in the case of Vinod Infra Developers (supra), wherein he placed reliance on Para-9.2, thereby would contend that if the suit for specific performance filed by the holder of ATS, such party can claim ownership or assert any transferable interest in the property. So, in view of above, learned senior advocate Mr. Vyas would try to pursue this Court to consider plea of respondent No.9 and accordingly not disturbed the Page 14 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined impugned order.
23. The observation so made in Para-9.2 of Vinod Infra Developers (supra), requires to be considered in the context in which it has been expressed, inasmuch as the case before the Hon'ble Apex Court in Vinod Infra Developers (supra), respondent No.1 there-before has not filed any suit for specific performance of alleged agreement to sell, in that context, the Hon'ble Apex Court observed in its decision. The relevant observation of Hon'ble Apex Court in Vinod Infra Developers (supra) reads as under.
"para-9.2.........In absence of suit for specific performance, agreement to sell cannot be relied upon to claim ownership or assert any transferable interest in the property. This legal position has been conclusively laid down by this Court in Suraj Lamp & Industries (P) Ltd. v. State of Haryana, (2012) 8 SCC 656, wherein, it was held that unregistered agreements to sell, even if coupled with possession, do not convey title or create any interest in the immovable property. It was further clarified that such documents are insufficient to complete a sale unless duly registered and followed by appropriate conveyance ."
(emphasis supplied)
24. It is true, in the present case, respondent No.9 has already filed suit for specific performance, thereby, he can maintain the claim against the executants of such ATS i.e. defendants and assert his right flowing from such ATS against them qua suit property.
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25. At the same time, the decision of the Hon'ble Apex Court in the case of Razia Begum (supra) which is delivered by the three Judges Bench, wherein it has been expressly observed that "In a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject- matter of the litigation".
26. Thus, in view of aforesaid and taking into account the status of the parties as on date, according to my view, the submissions so canvassed by the learned senior advocate Mr. Vyas, not sustainable in law, requires to be turned down.
27. So far as other decisions referred and cited by the learned senior advocate Mr. Vyas in the case of Naveen Kumar Jain (supra), the Hon'ble Apex Court in a peculiar facts and circumstances impleaded the party who is agreement to sell holder. It has been so observed in said decision that no view is expressed on merit but considering the facts of that case, it felt by the Hon'ble Apex Court, thereby, allowed ATS holder to be joined in the suit.
28. Having so observed herein above and in light of the fact that as per Section 54 of Act, 1882 read with other aforesaid decisions of the Hon'ble Apex Court, it would be gainsaid that on the strength of ATS, its holders cannot be allowed to Page 16 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined join in the suit.
29. At this stage, it would be apt to refer some pertinent observations made by the Hon'ble Apex Court in the case of Mumbai International Airport Pvt. Ltd. (supra), as regards who would be necessary / proper party. It has been observed thus :-
"8. 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 I 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:
"Court may strike out or add parties.
(2) 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."
[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 Page 17 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined 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. 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. 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.]"
(emphasis supplied)
30. In light of the aforesaid observation and ratio of the decision of Hon'ble Apex Court made in the case of Mumbai International Airport Pvt. Ltd. (supra), respondent No.9 would neither be necessary nor proper party, inasmuch as in his absence, suit can be tried and decided between the plaintiffs and original defendants and so also his presence would not assist the Court to decide the claims/ right of original plaintiffs in the suit.
31. It would be gainsaid that plaintiffs being dominus litis against his wish, nobody can be permitted to be impleaded as a defendant. The relevant observations made by the Hon'ble Apex Court in the case of Sudhamayee Pattnaik Page 18 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined (supra) requires to be observed, which reads as under :-
"5. We have heard learned counsel for the respective parties at length. At the outset, it is required to be noted that the defendants in the suit filed application under Order 1 Rule 10 CPC and prayed to implead the subsequent purchasers as party defendants. The suit is for declaration, permanent injunction and recovery of possession. As per the settled position of law, the plaintiffs are the domius litis. Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs. Not impleading any other person as defendants against the wish of the plaintiffs shall be at the risk of the plaintiffs. Therefore, subsequent purchasers could not have been impleaded as party defendants in the application submitted by the original defendants, that too against the wish of the plaintiffs."
(emphasis supplied)
32. The Hon'ble Division Bench of this Court in the case of Nayankumar Bhagvanbhai Patel Mevda (supra) considering the similar situation which is germane in the present case held thus :-
"18. Concededly and not in dispute, the applicant is claiming right flowing from the Agreement to Sell dated 17.03.2022 executed by the respondents except respondent no.10. Concededly, there is no sale deed executed in favour of the applicant by the respondents. Therefore, the issue which arises for consideration of this Court, is as to whether in absence of any registered sale deed, in tune with the provisions of Section 54 of the TP Act read with Section 17 of the Registration Act, 1908, can it be said that any right or interest has been invested in the applicant. Also, merely on the basis of the Agreement to Sell, whether the applicant can be said to be an aggrieved person. Clearly, answer to both the above referred issues has to be in negative in view of the above referred judgments and Page 19 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined principle laid down therein."
(emphasis supplied)
33. As far as the apprehension on the part of the respondent No.9 as regards collusion between the original plaintiffs and defendants is concerned, as on date, there is nothing germane on record to justify such apprehension. Even if it be so, on mere apprehension on the part of ATS holder that there would be a collusion between the original plaintiffs and defendants, and plaintiff would get decree, more particularly when defendants have already sold the suit property to the third party by way of registered sale deed, the impugned application cannot be allowed. Respondent No.9 could not have been joined in the suit filed at the instance of plaintiffs with whom respondent No.9 has no direct claim in the suit property or no any privity of contract.
34. At the same time, this Court cannot oblivious of the fact that respondent No.9 has already filed a suit seeking specific performance of the suit property, wherein plaintiffs already joined as a co-defendant along with defendants of the present suit. According to me, to avoid any contradictory decree which may passed by the trial Court i.e. Suit filed by petitioner or Suit filed by respondent No.9, it would be desirable that both the suits can be tried together. For this purpose, it is open for the respective parties including Page 20 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025 NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined respondent No.9 herein to file an appropriate application either before the Principal Senior Civil Judge or the District Court, Vadodara, thereby both the suits can be tried together and accordingly adjudicate, in accordance with law. This Court is not observing about its consolidation but only have an idea, to avoid any conflict of decree, it is in the interest of the parties that both the suits can be tried together.
Conclusion
35. In light of the aforesaid observations, discussions and reasons, I am of the view that the trial Court has committed serious error of law and so also committed jurisdictional error by allowing impugned application filed below Exh. 311 in Special Civil Suit No. 12 of 1994, inasmuch as respondent No.9 is neither necessary nor proper party to the aforesaid suit.
36. In light of the aforesaid, the order dated 19.09.2018 passed by the Additional Senior Civil Judge, Vadodara, below application Exh. 311 in Special Civil Suit No.12 of 1994 is hereby quashed and set aside. Consequently, the impugned application filed below Exh. 311 in the aforesaid suit is also hereby rejected.
Page 21 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025NEUTRAL CITATION C/SCA/15696/2018 JUDGMENT DATED: 06/10/2025 undefined
37. As observed hereinabove, it is open for respondent No.9 to file an appropriate application before the competent Court concerned for trying the suit filed by the plaintiffs as well as by respondent No.9 together.
38. As and when such application/ request will be made by the respondent No.9 herein, the same shall be considered by the Court concerned in light of what has been observed hereinabove.
39. Accordingly, the present writ application is hereby partly allowed to the aforesaid extent. Rule is made absolute accordingly. No order as to cost.
40. As a sequel, Civil Application stands disposed of accordingly.
Sd/-
(MAULIK J.SHELAT,J) SALIM/ Page 22 of 22 Uploaded by SALIM(HC01108) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:59:55 IST 2025