Bombay High Court
Sachin Maroti Burile And Another vs Rajaram Shankarrao Kunkule And Others on 7 October, 2025
2025:BHC-NAG:10370
1 61.J.WP.3957.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3957 OF 2022
1. Sachin Maroti Burile, aged about 33 years, oc.
Agriculturiest, r/o Khanji Ward, Warora, Tq.
Warora, District Chandrapur.
2. Mahesh Chandrakant Popat, aged about Major,
occ. Agriculturist, r/o Hanuman Ward,
Warora, Tq. Warora, Dist. Chandrapur.
... APPELLANT
VERSUS
1. Rajaram Shankarrao Kunkule aged about
64 years, occ. Agriculturist, r/o Tilak Ward,
Warora, Tq. Warora, Dist. Chandrapur.
(Amendment carried out as per order
dated 30.09.2022.)
2. Vasantrao Shankar Kunkule, aged about 70
years, Occ. Agriculturist, r/o Warkhawadi,
Tq. Wai, District Satara.
3. M/s Ahatashyam & Sadiq Ali, through its
partner, Ahatashyam Sadakat Ali aged
about 45 years, Occ. Business, r/o
Abhayankar Ward, Warora, Tq. Warora,
dist. Chandrapur.
4. Sadiq Sadakat Ali, aged about 39 yers, Occ.
Business, r/o Abhyankar Ward, Warora, Tq.
Warora, Dist. Chandrapur.
5. Sunil Narayan Warkhede, agedabout 45
years, Occ. Business, r/o Sardar Patel
Ward, Warora, Tq. Warora, Dist.
2 61.J.WP.3957.2022.odt
Chandrapur.
... RESPONDENTS
_____________________________________________________________
Shri Madhur A. Deo, Advocate for the Petitioners.
Shri V.B. Bhise, Advocate for respondent no. 1
Respondent no. 2 served.
Shri Yash A. Kullarwar, Advocate for respondent nos.3 to 5.
______________________________________________________________
CORAM : PRAVIN S. PATIL, J.
CLOSED ON : 24.09.2025.
PRONOUNCED ON : 07.10.2025.
JUDGMENT :
1. The prime challenge in the appeal by the appellants is to
the order dated 05.12.2024 by which the learned Trial Court has
rejected the amendment for addition of party in the pending suit. In
the present appeal, the entire controversy arose due to wrong survey
number mentioned by the appellant in his original plaint. According to
the appellant he has entered for agreement of sale of survey no.284
however it was wrongly mentioned in the plaint as survey no.287/A.
The petitioner, therefore moved the application for amendment to the
plaint to correct the survey number. The said amendment application
was rejected by the learned Trial Court. Against the same the appellant
has filed the Writ Petition No.3956 of 2022 before this Court. This
Court remanded back the matter to the Trial Court to decide afresh the
amendment application. The learned Trial Court by its order dated
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30.07.2023 allowed the amendment application and permitted to the
plaintiff to correct the survey number. It is seen from the record that
earlier the application for amendment to add the name of subsequent
purchasers was moved. But at relevant time, application for
amendment was not allowed, therefore, by recording reason that
survey number in the suit being different, rejected the application by
order dated 07.04.2022.
2. It is further seen from the record that after the amendment
was allowed to correct the survey number, the petitioner has again filed
the application for addition of party under order I Rule 10 of Code of
Civil Procedure stating that as the suit is properly amended and survey
no.284 is now included instead of survey no. 287/A. The said
application is rejected by order dated 05.12.2024. Hence the present
petition filed before this Court.
3. Respondent no.3 and 4 contested the present petition
stating that they are the bona fide purchaser of the suit property and
therefore, they are not necessary party to the present proceeding.
Hence, they stated that Trial Court has rightly rejected the application
filed by the petitioners for addition of party.
4. I have heard both the learned Counsel at some length and
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considered their submission as well as perused the case laws on which
both the learned Counsel has placed reliance to substantiate their
claim.
5. It is admitted fact on record that respondent no.1 sold out
the suit property to respondent no.5 on 01.08.2017, and thereafter,
respondent no.5 sold out the same to respondent no.3 and 4.
Accordingly, respondent nos. 3 and 4 are now in the possession of the
suit property.
6. It is the submission of the petitioners that once the
amendment is granted, the matter gets relate back to cause of action to
which the suit was filed. Hence, once the amendment is allowed, the
petitioner is always at liberty to place on record the subsequent
transaction taken place in respect of suit property and to decide the suit
in proper manner and therefore, they are necessary party to the suit.
The petitioners have relied upon the judgment of the Hon'ble Supreme
Court in the case of Maharaj Singh and ors. vs. Karan Singh (dead) thr.
Legal Representatives and ors. (2024) 8 SCC 83 , particularly on
paragraph 24, which read thus :
"24. In view of clause (b) of Section 19, the
defendants who are claiming under the sale deeds
executed after the execution of the suit agreement
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can be subjected to a decree of specific performance
as the suit agreement can be enforced specifically
against such defendants unless they are bona-fide
purchasers without the notice of the original
contract. When, in a given case, the defendants, who
are subsequent purchasers, fail to prove that they
entered into the sale deed in good faith and without
notice of the suit agreement, in view of Section
19(b), a decree for specific performance can be
passed against such defendants. Therefore, in such a
case where Section 19(b) is applicable, under the
decree of specific performance, the subsequent
purchasers can be directed to execute the sale deed
along with the original vendor. There is no necessity
to pray for the cancellation of the subsequent sale
deeds."
Hence, according to the petitioners the subsequent
purchasers are the necessary party to the suit.
7. On the other hand, learned Counsel for the respondent nos.
3 and 4 relied upon the judgment of the Hon'ble Supreme Court in the
case of Kasturi vs. Iyyamperumal and ors. (2005) 6 SCC 733 , and
particularly on paragraph 7 of the said judgment, which reads thus :
"7. In our view, a bare reading of this provision,
namely, second part of Order 1 Rule 10 sub-rule (2)
CPC would clearly shows that the necessary parties
in a suit for specific performance of a contract for
sale are the parties to the contract or if they are
dead, their legal representatives as also a person
who had purchased the contracted property from
the vendor. In equity as well as in law, the contract
constitutes rights and also regulates the liabilities of
the parties. A purchaser is a necessary party as he
would be affected if he had purchased with or
6 61.J.WP.3957.2022.odt
without notice of the contract, but a person who
claims adversely to the claim of a vendor is,
however, not a necessary party. From the above, it is
now clear that two tests are to be satisfied for
determining the question who is a necessary party.
Tests are - (1) there must be a right to some relief
against such party in respect of the controversies
involved in the proceedings; (2) no effective decree
can be passed in the absence of such party."
8. In the present matter it is not disputed that respondent nos.
1 and 2 on 21.01.2011 sold the entire survey no.287/A to Aditya
Developers. So they were in possession and owner of survey no.284
after year 2011.
9. It is admitted fact of the matter that, plaintiffs have filed
suit for specific performance of contract in the month of March, 2017.
At that time, in the civil suit filed by the petitioners, survey number was
recorded as 287/A instead of 284, however boundaries of the survey
number were recorded correctly.
10. After filing of the suit, respondent no.1 executed the sale
deed of the suit property in favour of respondent no.5 on 01.08.2017.
In the sale deed normally the boundaries of the property are recorded.
Therefore, it cannot be said that respondent no.1 was not aware about
pendency of suit but without disclosing the same he has executed the
sale deed in favour of respondent no.5.
7 61.J.WP.3957.2022.odt
11. Respondent no.5 then executed the sale deed in favour of
respondent nos. 3 and 4 on 20.02.2019. It is admitted fact that, the suit
property which was the subject matter of the suit, was sold during the
pendency of the civil suit. Therefore, those subsequent event are
necessary to brought on record.
12. At this stage, it can't be decided whether respondent nos.3
and 4 are bona fide purchaser or not. Same will be decided after
conducting full trial in the matter. Respondent nos.3 and 4 may be the
bona fide purchaser of survey no.284 from respondent no.5. But same
is required to be proved during the course of trial by respondent nos.
3 and 4 in the matter.
13. Merely because they are not related to the agreement of
sale executed between the petitioners and respondent no.1, cannot be
said to be a reason to not implead them as a necessary party to suit. On
the contrary, as they have purchased the suit property and in possession
of the same, according to me they are the necessary party to the
proceedings.
14. According to me, the law laid down by the Hon'ble
Supreme Court in the case of Maharaj Singh (supra) is applicable in the
matter. The final judgment of the suit will have bearing on the
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transaction taken place during pendency of suit. Therefore, in that view
of the matter, respondent nos. 3 and 4 are the necessary party to the
suit.
15. Hence, I am of the opinion that the Trial Court has
committed an error by rejecting the application for addition of party by
orders dated 07.04.2022 as well 05.12.2024. Hence, I proceed to pass
following order :
(a) The Writ Petition is allowed.
(b) Impugned orders dated 07.04.2022 below Exhibit 27 and
order dated 05.12.2024 below Exhibit 47 in Special Civil Suit
No.08/2017 are hereby quashed and set aside.
(c) The application filed by the petitioner for addition of party
under Order 1 Rule 10 of the Code of Civil Procedure Exhibit
47, is hereby allowed.
(d) The respondent nos. 3 and 4 be added as party defendants in
Special Civil Suit No.08/2017.
16. The Writ Petition stands disposed of. No order as to costs.
(PRAVIN S. PATIL, J.)
Trupti
Signed by: Trupti D. Agrawal
Designation: PA To Honourable Judge
Date: 07/10/2025 20:10:00
