HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 7963/2022
Hariram Nayak S/o Shri Rameshwar Lal Nayak, Aged About 55
Years, Resident Of Mahamayo Ka Mohala, Mandawa, Tehsil And
District Jhunjhunu, Rajasthan.
----Petitioner
Versus
1. Lakhim Walia S/o Pawan Kumar Walia, Aged About 37
Years, Resident Of Bhikawala Kuwa, Chuna Chowk, Ward
No 40, Jhunjhunu.
2. Rahul Walia S/o Pawan Kumar Walia, Aged About 32
Years, Resident Of Bhikawala Kuwa, Chuna Chowk, Ward
No 40, Jhunjhunu.
3. Vidhya Beniwal W/o Ramkumar Beniwal, Aged About 66
Years, Resident Of 122, Indra Nagar, Jhunjhunu.
4. Sumit Kyaamsariya S/o Subhash Chandra Kyaamsariya,
Aged About 33 Years, Resident Of Jhunjhunu.
5. Brijmohan S/o Narayan Singh, Aged About 76 Years,
Resident Of Hanumanpuri, Tehsil And District Jhunjhunu.
(Deceased) Legal heirs:
5/1. Shri Chaggan Lal S/o Late Shri Brijmohan, R/o Bissau
Mode, Post Mandawa, Tehsil And District Jhunjhunu.
5/2. Smt. Gayatri Devi D/o Late Shri Brijmohan, R/o Bissau
Mode, Post Mandawa, Tehsil And District Jhunjhunu.
5/3. Smt. Santosh D/o Late Shri Brijmohan, R/o Bissau Mode,
Post Mandawa, Tehsil And District Jhunjhunu.
5/4. Smt. Parmeshwari D/o Late Shri Brijmohan, R/o Bissau
Mode, Post Mandawa, Tehsil And District Jhunjhunu.
5/5. Smt. Makhni Devi, D/o Late Shri Brijmohan, R/o Bissau
Mode, Post Mandawa, Tehsil And District Jhunjhunu.
6. Hari Singh S/o Hanuman Ram, Aged About 63 Years,
Resident Of Mehram Puri, Tehsil Chirawa, District
Jhunjhunu.
7. Neeraj Walia S/o Rajendra Prasad, Aged About 38 Years,
Resident Of Bhikawala Kuwa, Chuna Chowk, Ward No 40,
Jhunjhunu.
8. Naveen Walia S/o Rajendra Prasad Walia, Aged About 41
Years, Resident Of Ward 25, Bhikawala Kuwa, Chuna
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Chowk, Ward No 40, Jhunjhunu.
9. Sahil Walia S/o Naresh Kumar Walia, Aged About 30
Years, Resident Of Ward 25, Bhikawala Kuwa, Chuna
Chowk, Ward No 40, Jhunjhunu.
10. Sagar Walia S/o Naresh Kumar Walia, Aged About 27
Years, Resident Of Ward 25, Bhikawala Kuwa, Chuna
Chowk, Ward No 40, Jhunjhunu.
11. Shish Ram Rohilla S/o Palaram Rohilla, Aged About 57
Years, Resident Of Rasoda, Tehsil And District Jhunjhunu
Currently Residing At Photostate Ki Dukaan, Post And
Telephone Exchange Ke Pas, Jhunjhunu.
----Respondents
For Petitioner(s) : Mr. Bhrigu Sharma with Mr. Akarsh Mathur For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order 01/07/2022 This writ petition under Article 227 of the Constitution of India is directed against the order dated 04.03.2022 passed by the learned Additional District Judge No.1, Jhunjhunu in Civil Suit No.92/2016 whereby, an application filed by the petitioner/applicant under Order 1 Rule 10 read with Section 151 CPC has been dismissed.
The facts in brief are that the respondents No. 1 & 2 filed a suit for cancellation of Will dated 24.04.2008 as also the sale deed dated 02.11.2011 executed on the strength of the Will dated 24.04.2008 against the respondents No.3 to 11. In the pending suit, the petitioner filed an application under Order 1 Rule 10 read with Section 151 CPC seeking his impleadment as defendant stating therein that out of the subject property, 100 sq. yds. of land was sold by Late Hanuman Prasad Walia vide an agreement to sell dated 01.10.1982 to Abdul Mazid who in turn sold it to him (Downloaded on 01/07/2022 at 09:19:06 PM) (3 of 4) [CW-7963/2022] vide an agreement dated 03.01.1989. The aforesaid application has been dismissed by the learned trial Court vide its order dated 04.03.2022, impugned herein.
Learned counsel for the petitioner submitted that since he is owner of part of the subject property, his right may be adversely affected by any finding/decision of the learned trial Court and hence, he ought to have been impleaded as the defendant. He, in support of his submissions, relied upon a judgment of the Hon'ble Apex Court of India in case of Sumtibai & Ors. Vs. Paras Finance Co. Regd. Partnership Firm Beawar (Raj.) through Mankanwar (Smt.) W/o Parasmal Chordia (Dead) & Ors. (2007) 10 SCC 82 and a judgment of this court dated 12.02.2021 passed in S.B. Civil Writ Petition 726/2021: Ramanand Chorasiya & Ors. Vs. Faguni & Ors.
Heard. Considered.
A perusal of the judgment impugned dated 04.03.2022 reveals that the learned trial Court has assigned cogent reasons while dismissing the application filed by the petitioner seeking his impleadment as a defendant. It has been observed by the learned trial Court that the suit is for cancellation of the Will dated 24.04.2008 as also the sell deed dated 02.11.2011 executed on the basis of the Will in which the presence of the petitioner is not necessary for its just and effective disposal.
This Court has gone through the application filed by the petitioner seeking his impleadment and is not satisfied that it discloses any reason necessitating his impleadment. As already stated, the suit is for cancellation of the will dated 24.04.2008 as also the sale deed dated 02.11.20211; but, in none of the documents, the petitioner is either a party or his rights, if any, on (Downloaded on 01/07/2022 at 09:19:06 PM) (4 of 4) [CW-7963/2022] the strength of the agreement to sell dated 03.01.1989 in the subject property, are going to be adversely affected.
Contention of the learned counsel for the petitioner that being owner of part of the subject property, he ought to have been impleaded as one of the defendant cannot be countenanced in as much as it is trite law that an agreement to sell does not confer any title on the purchaser.
In the present case, indisputably, the petitioner is said to have purchased a part of the property through an agreement from Abdul Mazid who in turn is also stated to have entered into an agreement to sell with erstwhile owner of the property. The learned trial Court has also recorded a categorical finding that the petitioner has not filed any suit for specific performance of the agreement executed way back on 03.01.1989.
This Court is in respectful agreement with the law laid down by the Hon'ble Apex Court of India in case of Sumtibai (supra); but, the same has no applicability in the present case. Similarly, the judgment of this Court in case of Ramanand Chorasiya (supra) is of no help to the petitioner having been rendered in entirely different facts and circumstances.
Learned counsel for the petitioner could not satisfy this Court that the order dated 04.03.2022 suffers from any perversity or patent jurisdictional error so as to warrant interference of this Court under its limited supervisory jurisdiction vide Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed being devoid of merit.
(MAHENDAR KUMAR GOYAL),J Sudha/49 (Downloaded on 01/07/2022 at 09:19:06 PM) Powered by TCPDF (www.tcpdf.org)