Bombay High Court
Mr. Phool Singh S/O. Surajpal Singh vs Pralhadsingh S/O Bachusing(Deceased) ... on 22 July, 2025
2025:BHC-AS:30438
CAF 4057-18 C2.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 4057 OF 2018
IN
FIRST APPEAL NO. 755 OF 1988
Phool Singh S/O Surajpal Singh ...Applicant/ Ori.
Respondent No.7
In the matter between:
Prahladsingh s/o Bachusing (since deceased)
through its legal heirs and Ors.
...Appellants
Versus
Bhuridevi Chandmal Lodha and Ors. ...Respondents
****
SNEHA Mr. Akshay Deshmukh a/w Sumit Chaudhari for the Applicant.
NITIN
CHAVAN Mr. Vishal Pattabiraman i/b Amey Sawant for Respondent Nos. 1(a) and
Digitally signed
1(b).
by SNEHA
NITIN CHAVAN Ms. Poonam Madhwani a/w Ms. Anjali Devkar for the Appellants.
Date: 2025.07.22
18:57:25 +0530 ****
CORAM : M.M. SATHAYE, J.
DATE : 22 JULY 2025.
P.C. :
1. This is an application by Phoolsingh s/o Surajpalsingh seeking
impleadment in present appeal as party Respondent and for stay of
appeal.
2. Present appeal is arising out of Suit No.3227 of 1982 which is
hereinafter referred to as present suit. The Suit No.6232 of 1964 filed
amongst the family members of Dattadin is hereinafter referred to as
1964 suit.
3. The case of the Applicant is that as per genealogy annexed to
CAF 4057-18 C2.doc
the application, Applicant is claiming through the branch of
Surajpalsingh, who was brother of original appellant Pralhadsingh.
Presently two sons of Prahladsingh namely Dharmaveer-singh and
Dharmapal-singh are prosecuting the present appeal after the death of
Prahlad-singh. It is the case of the Applicant that one Dattadin Harpal
Singh (hereinafter referred to as 'Dattadin' for short) was the owner of
present subject matter property at Kanheri, Carter Road, Borivali East.
The Applicant is grandson of Sukharana-devi - sister of Dattadin, just
like the present Appellant Dharamavir and Dharmapal Singh and
therefore he or his branch should have been made party. It is submitted
that in 1964 suit amongst family members, right of Applicant's branch
has been accepted. Therefore the Applicant was necessary party in the
present suit and this appeal.
4. Affidavit in reply is filed by Dharamveer-singh s/o Prahlad-
singh, contending inter alia that the Applicant has no locus standi to be
joined as party. That the Applicant had taken out Civil Application
No.7773 of 2004 initially for joining as party and same was dismissed
for default on 29.07.2004. That he again took out Civil Application St.
No. 23585 of 2014, which was withdrawn by him. It is contended that if
the Applicant wishes to challenge the title of Appellant on the ground of
being co-owner, he has to take out independent proceedings. That if the
Applicant had any right in the suit property, he would not have kept
quiet since 1964 suit.
5. The Applicant has filed affidavit-in-rejoinder dated 19.08.2015
asserting inter alia that the Applicant is one of the co-owners of the suit
property and also the legal heir of Dattadin, through whom the present
Appellants are also claiming rights. No sur-rejoinder is filed till date.
CAF 4057-18 C2.doc
6. Though it is admitted that earlier application CA/7773/2024
for joining as party came to be dismissed for default, it is contended
that sebsequent Civil Application (Stamp) No.23585 of 2014 came to be
withdrawn with liberty and therefore, the present application being
filed by virtue of said liberty is not barred. No material is shown to the
Court to discredit this assertion about earlier application being
withdrawn with liberty.
7. It is specifically submitted that the Applicant is not challenging
the title of the present Appellants as they are also co-owners.
8. Learned counsel for Respondent No. 1(a) and 1(b) submitted
on instructions that he does not wish to file separate reply to the
Application. He has assisted the Court with the record but has left the
dispute between family to be fought inter-se.
9. Heard learned advocates for the parties. Perused the record.
10. At the outset, it is material to note that the original Plaintiff
Bhuridevi Chandmal Lodha had filed present suit against Gayadin-
singh, Baijnath-singh, Khatrapal-singh and Pralhad-singh. This Pralhad-
singh (Defendant No.2) was son of Sukhranadevi who was sister of
Dattadin. It is material to note that none of the other brothers of
Pralhad-singh (namely Surajpal-singh and Ramchandra-singh) were
made party to the present suit and Prahlad-singh alone represented on
behalf Dattadin.
11. Dattadin was not married and he died on 26.02.1961 and
after his death, his three cousins (Gayadin-singh, Baijnath-singh and
CAF 4057-18 C2.doc
Khatrapal-singh) filed 1964 suit in Bombay City Civil Court joining
Prahladsingh as party Defendant. This suit was between cousins of
Dattadin on one side and heir of Dattadin through her sister
Sukharanadevi on the other. Gayadin-singh, Baijnath-singh and
Khatrapal-singh claimed that after the death of Dattadin, they had
become entitled to the subject matter property. In this suit Prahlad-singh
filed written statement wherein, it was asserted that Pralhad-singh
along with his two brothers namely Surajpal-singh and Ramchandra-
singh were legal heirs and representative of Dattadin and they were in
possession of the suit property. Since this is a property claimed from
Dattadin, it is the contention of the Applicant that all the legal heirs of
Sukhranadevi are necessary parties because the claim is through
Dattadin.
12. In the present impugned judgment and decree, Plaintiff
Bhuridevi has been declared as owner of subject matter property and
therefore, the declaration as on today is challenged only by Defendant
No.2 Pralhad Singh and not by any other parties in the family, because
they were not made parties.
13. A letter dated 12.05.2012 addressed by Advocate on behalf of
a Appellants and the present Applicant together is placed on record in
which request was made to furnish names and particulars of legal hairs
of late Shri. Chandmal Lodha (husband of plaintiff) for furnishing to
this Court in the present Appeal.
14. A copy of written statement filed by Pralhad-singh in 1964 suit
is produced on record. It is seen from para 9 thereof that Pralhadsingh
contended that he and his 2 brothers Surajpal-singh and Ramchandra-
CAF 4057-18 C2.doc
singh are sons of Shukrandevi-Sister of Dattadin. Dattadin is stated to
have not married. A panchnama drawn by Talathi, Borivali which was
part of 1964 suit is produced which indicates that after the death of
Dattadin, the names of Pralhad-singh, Surajpal-singh and Ramchandra-
singh are stated as 3 persons present as heirs of Dattadin. It is stated in
the said panchnama that rents of 2 chawls present on the suit property
is being collected by all 3 brothers. 7/12 extract pertaining to suit
property also bears the names of Applicant's father Surajpal-singh.
15. Since the Applicant is not party to present suit, any order
passed in this appeal will not bind him or for that matter any body from
the branch of brothers Surajpal-singh and Ramchandra-singh.
16. In 1964 suit, issue as to whether Pralhad-singh and his two
brothers Surajpal-singh and Ramchandra-singh are entitled to suit
property as legal heirs of Dattadin has been answered in affirmative
under issue nos. 7 & 8. This adjudication is not shown to have been set
aside as between the Pralhad-singh and his brothers Surajpal-singh and
Ramchandra-singh. Plaintiff in the present suit - Bhuridevi has only
sued Pralhadsingh but as between family, all the three brothers -
Pralhadsingh, Surajpal-singh and Ramchandra-singh have rights in suit
property as adjudicated in 1964 suit. This right is also a right to defend
any action in respect of suit property, which is an action brought by
Plaintiff - Bhuridevi.
17. Therefore in the facts and circumstances narrated above, in
my view the Applicant has a right to defend the present suit, which has
been jeopardized and prejudiced by the declaration granted in favour of
the plaintiff Bhuridevi, because the Applicant and his father was not
CAF 4057-18 C2.doc
made party.
18. When the relationship is not disputed, the opposition of
Appellant Pralhad-singh or his heirs to implead Applicant can not be
accepted, especially in the teeth of adjudication in 1964 suit and when
Applicant is not disputing their co-ownership.
19. Therefore, the Applicant is both necessary and proper party.
The Application is accordingly partly allowed. The Applicant is
permitted to be made party Respondent in appeal. It is clarified that
Applicant is not challenging the title of the present Appellant or his
legal heirs as they are also co-owners. All the disputes inter se the
Appellants and Applicant are kept open.
20. Appellant is directed to implead the Applicant as party
Respondent No. 7. Amendment to be carried out within 2 weeks.
21. Civil Application is disposed of in above terms.
(M.M. SATHAYE, J.)
