Bombay High Court
Kamlbai Vana Mahajan Deceased Thr ... vs Sunil Vitthal Patil And Others on 20 January, 2021
Bench: V.K. Jadhav
1 922-WP.1110-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
922 WRIT PETITION NO.1110 OF 2021
KAMLBAI VANA MAHAJAN DECEASED THR LRS DASHRATH
VANA MAHAJAN AND OTHERS
VERSUS
SUNIL VITTHAL PATIL AND OTHERS
...
Advocate for Petitioners : Mr. Bora Satyajit S.
...
CORAM : V. K. JADHAV, J.
DATE : 20.01.2021
PER COURT :-
1. Heard.
2. The petitioners are the third party applicants in the
pending suit bearing Special Civil Suit No.106 of 2011. The
petitioners have filed an application under Order 1, Rule 10(2)
of the Civil Procedure Code. The suit is for Specific
Performance of the Contract. The petitioners are also the legal
heirs of original owner Budha, however, as per pleadings in the
suit, the sons of Budha have allegedly executed the agreement
of sale in favour of the respondents / plaintiffs and in
consequence thereof, the suit was instituted for Specific
Performance of the Contract. The learned counsel submits that
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the Trial Court has given weightage to the ratio laid down by
the Supreme Court in a case Kasturi Vs. Iyyamperumal and
others reported in AIR 2005 SC, 2813.
3. The learned counsel for the petitioners submits that in a
case Sumtibai and others Vs. Paras Finance Co. and others
reported in (2007) 10 SCC 82 by referring the Kasturi's
judgment in paragraph No.9 has made the following
observations :
"9. Learned counsel for the respondent relied on a three-
Judge Bench decision of this Court in Kasturi Vs. Iyyamperumal
and ors.MANU/SC/0319/2005 : AIR2005SC2813. He has
submitted that in this case it has been held that in a suit for
specific performance of a contract for sale of property a stranger
or a third party to the contract cannot be added as defendant in
the suit. In our opinion, the aforesaid decision is clearly
distinguishable. In our opinion, the aforesaid decision can only
be understood to mean that a third party cannot be impleaded
in a suit for specific performance if he has no semblance of tiltle
in the property in dispute. Obviously, a busybody or interloper
with no semblance of title cannot be impleaded in such a suit.
That would unnecessarily protract or obstruct the proceedings
in the suit. However, the aforesaid decision will have no
application where a third party shows some semblance of title
or interest in the property in dispute.
In the present case, the registered sale deed dated 12.08.1960
by which the property was purchased shows that the shop in
dispute was sold in favour of not only Kapoor Chand, but also
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his sons. Thus prima facie it appears that the purchaser of the
property in dispute was not only Kapoor Chand but also his
sons. Hence, it cannot be said that the sons of Kapoor Chand
have no semblance of title and are mere busybodies or
interlopers."
4. It is observed in the aforesaid decision that a third party
cannot be impleaded in a suit for Specific Performance if he
has no semblance of title in the property in dispute. Obviously,
a busybody or interloper with no semblance of title cannot be
impleaded in such a suit. That would unnecessarily protract or
obstruct the proceedings in the suit. However, the aforesaid
decision (Kasturi's) will have no application where a third
party shows some semblance of title or interest in property in
dispute.
5. Though the Trial Court has referred the case Sumtibai in
the order, however, has not discussed the ratio laid down in the
said case. Though the suit was instituted way back in the year
2011, the petitioners, who are the daughters of the original
owner Budha came to know about this suit in the year 2020
itself and even the Trial Court has not considered the said point
as adverse point against the petitioners.
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6. In view of the above, issue notice to the respondents,
returnable on 03.03.2021.
7. Till the next date of hearing, the further proceedings of
Special Civil Suit No.106 of 2011 are hereby stayed.
(V. K. JADHAV, J.)
...
vmk/-
