Delhi High Court
Joginder Singh Chhabra & Ors vs Sarabjit Singh Anand & Ors on 19 January, 2012
Author: S.Ravindra Bhat
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 19th January, 2012
+ FAO(OS) 267/2010 & CM No.7271/2010
JOGINDER SINGH CHHABRA & ORS ..... Appellants
Through : Mr.Madan Gera, Advocate with Mr.Aman Vachher and Mr.Ashutosh Dubey, Advocates.
versus
SARABJIT SINGH ANAND & ORS ..... Respondents
Through : Mr.Sarabjit Singh Anand,
Respondent No.1 in person.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE S.P.GARG
S. Ravindra Bhat, J. (Open Court)
The Appellants challenge an order of the learned Single Judge, rejecting their application under Order 1 Rule 10 CPC (i.e. IA No.9724/2006) filed in CS(OS) No. 1593/2006, in which partition of property described at 6 Cavalry Lane, Mall Road, Delhi-9 is sought for, by some of the Respondents/plaintiffs.
The narrative in the appeal is that the Applicants purchased the suit property in its entirety from the tenth Respondent (Manjit Singh Anand) through Sale Deed registered on 31.07.2006. At that time, Manjit Singh Anand had filed a suit bearing No.76/2006 (subsequently renumbered as CS(OS) No.1048/2008), before the learned Additional District & Sessions Judge for possession in respect a portion of the suit property. The Applicants sought impleadment in that suit by invoking Order 22 Rule 10 CPC stating that they were successors in interest. That application for impleadment was allowed and the Appellants were made parties in the said suit.
In the meanwhile, apparently, after the execution of the Sale Deed on 31.07.2006 the step brothers and step mother of the said Manjit Singh Anand filed a suit (Suit No.1593/2006) on 18.08.2006 before this Court claiming partition of the suit property. Soon thereafter, apparently, the Sale Deed through which the present appellants claimed interest was sought to be challenged by another proceeding i.e. CS(OS) 1791/2006 on the file of this Court, on 13.09.2006. The Appellants in turn filed a suit on 23.02.2007 before the Additional District and Sessions Judge claiming possession under Section 6 of the Specific Relief Act 1963 in respect of a portion of the suit property alleging that they have been dispossessed.
The appellants preferred an application for impleadment in the partition suit stating that they were necessary parties in the partition suit, having succeeded to the interest of the tenth respondent, its exclusive owner. The application was opposed by the other parties/defendants. By the impugned order, the learned Single Judge rejected their application. The relevant reasoning in the impugned Order reads as follows :
"I have the learned counsel for the applicants as well as Mr. Sarabjit Singh Anand and Mr. Jasjit Singh appearing in person. I am of the view that the present application deserves to be dismissed. My reasons for the same are as follows :-
The applicants' right admittedly flow from the sale deed dated 31.07.2006. The applicants are presently plaintiffs in two suits which pertain to the portion of the suit property marked in red and the other marked in yellow i.e., CS(OS) No.169/2009 and 1048/2008. There is a third suit (being CS(OS) No.1791/2006); which has been filed by the plaintiff no.1 (Mr.Sarabjit Singh Anand) wherein the relief sought is the cancellation of the sale deed dated 31.07.2006. If the plaintiffs fail in this suit, they cannot possibly get relief in the instant suit. Applicants are admittedly parties in CS(OS) No.1791/2006. In my view, the said proceedings adequately protect the interest of the applicants. Both the instant suit, as well as CS(OS) No. 1791/2006 are pending in this Court. Therefore, as indicated above, the applicants' apprehension is misconceived. In any event, in my view, in the facts and circumstances of the present case the applicants herein are not a proper nor necessary parties to the instant suit; of course with a caveat added that CS(OS) No. 1791/2006 shall be tried along with the instant suit. Accordingly the application is dismissed. Needless to say that any observations made hereinabove would not come in the way of the applicants prosecuting their suits pending in the District Court."
Mr.Madan Gera, learned counsel argues that the learned Single Judge erred in not impleading the Appellants in the partition suit. It was urged that once their interest was recognized and they were allowed to be impleaded in the pending suit (for possession) filed by the tenth respondent before the learned Additional District and Sessions Judge, and also having regard to the fact that by registered Sale Deed dated 31.07.2006 they acquired title, denying impleadment in the suit was erroneous. Learned counsel submits that the direction by the learned Single Judge, that the suits pending on the file of this Court i.e. 1791/2006 and 1593/2006 ought to be tried together does not afford any consolation in the absence of any direction that they had to be consolidated. It was contended that if the partition suit is decreed in any manner it would adversely affect the appellants' rights since they are the owners of the property. Learned counsel relied upon the judgment reported as 'Chinnasamy Naidu Vs. Amsaveni Ammal, 1985 (I) M.L.J. 422'.
We have heard learned counsel for the parties. The conceded facts here are that in the earlier suit preferred by the original owner i.e. the tenth respondent, the present appellants were impleaded as successors-in-interest. Their right to property has been contested in the partition suit by the Plaintiffs in that proceedings (who are arrayed as Respondents in the present case). The Appellants are also parties in the other proceedings, i.e. suit No.1791/2006 by which the Sale Deed through which they claimed title has been challenged. The impugned order would reveal that the latter suit has been directed to be heard along with the suit for partition.
We do not find any flaw in the reasoning of the learned Single Judge. In a partition suit it is only the members of the family or co-parceners, who have right to the property and can claim to be necessary parties. The inclusion of third party whose title is also in question, would result in anomalous situation. Furthermore, in other proceedings all the parties are deemed to be Plaintiffs and without leave of Court even the suit cannot be with drawn. The Appellants apprehension about the likelihood of a decree in the partition suit adversely affecting their interests is remote. Both proceedings i.e. the partition suit and the suit challenging the Sale Deed would be heard and decided at the same time, by one learned Judge. It the Applicants succeed in their suit, that decree would bind all other parties, who are also impleaded in the partition suit. That suit, in such eventuality cannot render any adverse finding as regards the suit property.
This Court does not find that the presence of the Appellants is necessary for a decision of the real controversy in the partition suit (CS(OS)No.1593/2006). For the above reasons, the appeal and accompanying applications are unmerited and the same are accordingly dismissed.
(S. RAVINDRA BHAT)
JUDGE
(S.P.GARG)
JUDGE
January 19, 2012
tr
