Vipin Kumar Rastogi And 3 Others vs Naresh Gupta And 3 Others
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Allahabad High Court

Vipin Kumar Rastogi And 3 Others vs Naresh Gupta And 3 Others on 6 August, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:133234
 
Court No. - 9
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 3591 of 2018
 
Petitioner :- Vipin Kumar Rastogi And 3 Others
 
Respondent :- Naresh Gupta And 3 Others
 
Counsel for Petitioner :- Pradeep Kumar
 
Counsel for Respondent :- Bhanu Bhushan Jauhari,Mata Achal Mishra,Vinay Mishra
 

 
Hon'ble Manish Kumar Nigam,J.
 

1. Supplementary affidavit filed today is taken on record.

2. Heard learned counsel for the parties and perused the record.

3. This petition has been filed challenging the order dated 6.9.2017 passed by Civil Judge (Senior Divison), Court No.2, Bareilly allowing the application No.77-Ga filed by the impleadment applicant/respondent No.1 (Naresh Gupta) to implead him as defendant in the Original Suit No.464 of 1991. Against the order dated 6.9.2017, petitioner preferred a Civil Revision No.100 of 2017 and the same was also dismissed on 24.2.2018 passed by the Additional District Judge, Court No.5, Bareilly. Hence, the present petition.

4. Facts in brief are that the plaintiff-petitioner filed Original Suit No.464 of 1991 for partition of House No.100, details of which are given in the plaint impleading Purshottam Saran as defendant, who died during pendency of the suit and has been substituted by his heirs, who are impleaded as respondents No.3 and 4. Plaintiff-petitioner claimed 2/3rd share in the house in dispute which he has purchased from the successor in interest of original owner Gopalji s/o Sewa Ram. The original defendant in the suit Purshottam is a descendant of Madan Lal s/o Sewa Ram. Sewa Ram, the original owner of the property had three sons namely Gopalji, Narain Das and Madan Lal. There was partition in the year 1906 of the property which originally belongs to Sewa Ram and all the three brothers namely Gopalji, Narain Das and Madan Lal got 1/3rd share in the property. According to the plaintiff-petitioner, Narain Das died issueless (which is admitted to the defendant also). According to the petitioner, share of Narain Das came with Gopalji on the basis of gift deed, resulting that Gopalji had 2/3rd share in the property and Madan Lal had only left with 1/3rd share. The case of Purshottam, descendant of Madan Lal was that after the death of Narain Das, his share equally came to both the brothers Gopalji and Madan Lal and both have half shares in the property in dispute. This question, as to which party has how much share in the property, is to be decided in the suit itself. It is noteworthy that Purshottam, who has been arrayed as defendant, was the son of one Basanti Devi, who was grand daughter of Madan Lal. Basanti Devi has four sons namely Ram Autar, Jagdish Saran, Purushottam and Rameshwar Dayal.

5. From perusal of the plaint, only Purshottam was impleaded as party defendant in the suit but the other sons of Basanti Devi were not impleaded as a party. The impleadment applicant/respondent No.1 is son of Jagdish Saran, who has moved an application for impleadment in the pending present suit, which has been allowed by the Court below.

6. Contention of learned counsel for the petitioners is that petitioner has purchased 2/3rd share from the successor-in-interest of the Gopalji through a registered sale deed executed in his favour in the year 1985. After purchase of the property, petitioner filed Original Suit No.108 of 1987 for injunction which was dismissed by the Trial Court by judgment and decree dated 25.8.1990 passed by the Munsif, Bareilly wherein it has been held that petitioners-plaintiffs are not entitled to raise the wall till they get their 2/3rd share separated. Against dismissal of the suit, the plaintiff-petitioner filed first appeal, that was also dismissed which was never challenged thereafter by the plaintiff. It has been further contended by learned counsel for the petitioners that in Suit No.108 of 1987, while deciding issue no.(ii), it was held that the plaintiff-petitioners are entitled to 2/3 share. It has also been submitted that against this finding, Purshottam filed second appeal before this Court which was dismissed. It has also been contended by learned counsel for the petitioners that impleadment applicant/respondent No.1 filed Original Suit No.593 of 1990 for injunction claiming himself to be the sole owner of the property in dispute. The said suit was dismissed by the Trial Court by judgment and decree dated 10.8.1999. Against the judgment and decree dated 10.8.1999, Naresh Gupta, filed first appeal being Civil Appeal No.118/1999 which was allowed by the lower Appellate Court and the suit filed by the Naresh Gupta was decreed. Against this decree, present petitioners filed second appeal which is pending consideration before this Court wherein an interim order of status quo is operating. It has been further contended by learned counsel for the petitioners that question of ownership of 2/3rd share has already been decided in Original Suit No.108 of 1987, the claim of respondent No.1 ? Naresh Gupta has not been fond genuine by the Trial Court in Original Suit No.593/1990.

7. Learned counsel for the petitioner further submitted that the Court below has erroneously allowed the impleadment application filed by the Naresh Gupta as the suit filed by the Naresh Gupta was dismissed.

8. Per contra, learned counsel appearing for the respondents submitted that suit filed by Naresh Gupta was decreed in an appeal and the second appeal is still pending and, therefore, findings recorded by the Trial Court is of no avail till the second appeal is decided. It has been further submitted that findings recorded in Original Suit No.108/1987 on which reliance is being placed by learned counsel for the petitioner is of no avail as the said suit was dismissed and the appeal filed by the petitioner has also been dismissed. It has been further submitted by learned counsel for the respondent that partition suit was filed by the present petitioners only impleading Purshottam, who was descendant of Madan Lal whereas the other sons of Basanti Devi namely Jagdish, Ram Autar and Rameshwar were not impleaded, who were also the descendants of Madan Lal and were necessary party to be impleaded in the suit.

9. In reply, learned counsel for the petitioner submitted that Jagdish Saran, Ram Autar have executed power of attorney in favor of Purshottam Saran. Therefore, the other sons were not impleaded as a party and the Naresh Gupta has no right to be impleaded as defendant as his father has been impleaded through his power of attorney.

10. I have considered the rival submissions made by learned counsel for the parties and perused the judgment of the Trial Court in Original Suit No.593/1990 though the Trial Court has dismissed the suit but has recorded a finding that Naresh Gupta the plaintiff in Original Suit No. 118/1999 is not the owner of entire house but was having some share in the property.

11. The admitted position as comes out is that the partition is being sought between the two branches of original holders Sewa Ram namely Gopalji and Madan Lal. Petitioners are the successor-in-interest of Gopalji whereas the defendant in the suit Purshottam is the successor-in-interest of Madan Lal, the other branch. Admittedly. Jagdish Saran was also the successor-in-interest of Madan Lal being son of Basanti Devi. Even if the father of present impleadment applicant/respondent No.1 Naresh Gupta namely Jagdish Saran has executed power of attorney in favour of Purushottam Saran after his death, power of attorney is of no avail. Jagdish Saran being co-sharer along with Purshottam Saran was a necessary party to the suit and petitioner being his son is also the necessary party and has been impleaded as defendant in the present suit. Further the decree in Original Suit No.593/1990 has been set aside in appeal and second appeal filed by petitioners is still pending and, therefore, the rights are still not finally decided in Original Suit No.593/1990.

12. In my view, no illegality has been committed by the Court below in allowing the application for impleadment. Therefore, the writ petition lacks merit and is accordingly dismissed.

13. It is made clear that this Court, while considering this petition, has not given any opinion on the merits of the case contended by both the parties as to the share or their entitlement to the property.

Order Date :- 6.8.2025

Rishabh

[Manish Kumar Nigam, J.]