Sunehri & Another vs Sh. Bhagwat Dayal & Others
1999 Latest Caselaw 763 Del

ORDER

Dr. M.K. Sharma, J.

1. This revision petition is directed against the order dated 22.9.93 passed by the Sub-Judge, Delhi in Suit No. 610/92 allowing an application filed by the applicants who are legal heirs of late Prem for adding them as parties in the suit.

2. The plaintiffs filed a suit for declaration and permanent injunction which was registered as Suit No. 610/92. The plaintiffs who are petitioners herein stated in the plaint that their predecessor-in-interest Shri Ram Kumar was adopted by Smt. Javitri Devi who inherited a share of the offerings in the temple known as "Sri Kalkaji Temple". It is stated in the said plaint that there are three sub-set in Thula Tansukh, each having one anna share out of the three anna and in the said Thula Tansukh one subset is called Ramsi Dodu set to which the plaintiffs and the defendants belong to and are members of the said subset. It is also stated in the plaint that Thula Tansukh is having one anna share out of which plaintiffs are entitled to two paise shares and two paise shares is to be enjoyed by defendants Nos. 5 to 17. It is also stated in paragraph 11 of the plaint that as far as defendants 1 to 4 are concerned they have no right to enjoy the same but they have been recovering 6 pie shares out of one annas share and out of remaining 6 pies, 2 pies are enjoyed by the plaintiffs and 4 pies are enjoyed by the defendants Nos. 5 to 17. It is also contended that the said division of shares is altogether illegal and was on account of the fact that adoption of Sh. Ram Kumar husband of plaintiff No. 1 and father of defendant No. 2 was disputed and challenged. In paragraph 12 it is stated that Shri Ramsi alias Dodu from whom the plaintiffs claimed their rights and their ancestors were having two sons namely Bakhtavar and Sh. Nandan, who dies issueless and, therefore, after the death of Shri Nandan, Shri Bakhtavar was entitled to his share and after the death of Shri Bakhtavar his son Sh. Mam Raj who become entitled to his share. Sh. Mam Raj was having two sons namely, Sh. Molar and Sh. Deep Chand and as Sh. Deep Chand died issueless. It is Sh. Molar who inherited the aforesaid share. After the death of Sh. Molar, his widow Smt. Javitri Devi was entitled to share of the offerings etc. It is stated in paragraph 13 of the plaint that Sh. Ram Kumar was although the son of Sh. Ramji Lal who was the natural father of Shri Ram Kumar, however, Sh. Ram Kumar was adopted by Smt. Javitri Devi, therefore, after the death of Smt. Javitri Devi her share devolved upon Shri Ram Kumar Shri Ram Kumar, however, expired therefore, it is the plaintiffs who are widow and minor son of Sh. Ram Kumar are entitled to the share of Sh. Ram Kumar.

3. During the pendency of the aforesaid suit an application came to be filed by the applicants praying for adding them as parties in the suit as they are necessary parties to the suit. In the said application it was contended that the applicants are necessary parties in the aforesaid proceedings inasmuch as the applicants also belonged to the Ramsi alias Dodu of Thula Tansukh and that the said applicants have 6 pies share in the subset of Ramsi Dodu of Thula Tansukh which claim is also upheld by the decisions of various courts including the High Court and the Supreme Court. It is stated in the application that in order to effectively and completely adjudicate the issues in the suit proceedings all the applicants are necessary and therefore they are to be imp leaded in the suit.

4. The said application was opposed by the plaintiff-petitioners and upon hearing the counsel for the parties the Sub Judge by his order dated 22.9.93 allowed the application and directed that the legal heirs of the late Prem be added as defendants in the suit. It was held by the Court that the applicants should be brought on record so that the possible collusive decree or order could be eliminated. He also held that the additions of those applicants would not in any manner change the character of the suit since the question regarding Shashmahi Bari is common to the parties to the suit and that the court would be in a better position to completely and effectively adjudicate the controversy between the parties.

5. I have heard the learned counsel appearing for the petitioner who submitted that the applicants have no connection whatsoever with the subject matter of the relief claimed nor they would be effected by the decision of the suit and as such they are neither necessary nor proper parties, and therefore, the impugned order is illegal and without, jurisdiction. He also submitted that if the applicants are added as the parties then it would change the subject matter of the suit and entire nature of the suit would change consequent thereto which would result in enlarging the scope of the entire suit. Counsel appearing for the respondents-applicants, however, submitted before me that the respondents-applicants are necessary parties as the suit filed by the petitioners against the respondent is a collusive suit. He also drew my attention to the various judgments wherein the petitioners as plaintiffs and the respondents who were arrayed as defendants in the suit had throughout being litigating with late Sh. Prem the predecessor-in-interest in the application as the applicants. The counsel drew my attention to the decision of this court in RSA. 553-D/62 titled Smt. Javitri & Ors., Vs. Shri Prem which was disposed of on 5.2.1971. My attention is also drawn to an order dated 11.10.85 passed in CM (M) 255/85 & C.M. 1345/85 and also to the decision of this court in Suit No. 336/78 disposed of on 3.3.82 titled Shri Salig Ram Vs. Sh. Prem & Others and also to the decision in RFA N. 67-68/1981 titled Salig Ram Vs. Prem & Ors., decided on 7.2.85 and more recent decision of this Court in FAO (OS) 218 & CMs. 3295-96/97 & 3442/97.

6. A perusal of the aforesaid judgments would indicate that the aforesaid courts have held that Prem was a relative of Salig Ram and was entitled to share in the income of offerings of Kalkaji Temple. The said decisions have categorically asserted the right of late Sh. Prem for six pies share in the earnings RSA No. 53(d) of 1962 was an appeal in between (1) Smt. Javitri widow of Mollar , deceased and represented by Shri Ram Kumar S/o Ramji Lal adopted son of Smt. Javitri (2) Ramji Lal (3) Shri Sita Ram (4) Shri Salig Ram sons of Shri Shib Sahai (5) Shri Piara Lal son of Shri Dobi Sahai on one side and Shri Prem on the other side. In the said suit right and entitlement of Sh. Prem to a share of the earnings was denied by the aforesaid persons. The plea taken there was that Prem had no connection with their family and, therefore, he is not entitled to any share in the earnings as descendant to a common ancestor. This Court, however, found that the appellants altogether failed to show that the entries in the Jamabandi register are in any manner wrong. This court held that the shares of the parties indicate what the parties are entitled to as descendants of a common ancestor and Sh. Prem was rightly considered entitled to one sixth share, and, therefore, to one-sixth of the compensation. It is thus apparent that the petitioners herein have been rejecting the claim of late Prem, the predecessor-in-interest of the respondents-applicants throughout.

7. Even in the present suit specific statement has been made by the petitioners as plaintiffs that the defendants No. 1 to 4 are recovering 6 pies shares out of one anna share and out of the remaining six pies two takkas are enjoyed and four pies are enjoyed by the defendants 5 to 17. Both the applicants belongs to the same subset and are entitled to six pies share. They are not mentioned at all in the said paragraph 11 at all. It is thus found that the suit as filed by the plaintiff could be a collusive suit. In order to protect the interest of the applicants who are successor-in-interest of late Prem and held to be entitled to 6 pie share in the various decisions pronounced by Subordinate courts of Delhi, High Court of Delhi and also Supreme Court, the said applicants are necessary and proper parties in the present suit and , therefore, they are rightly added as the defendants in the present suit.

8. I do not find any infirmity in the impugned order. The petition, therefore, has no merit and is dismissed.