Gopal Sethiya vs Aayub
2021 Latest Caselaw 1305 MP

 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

                        M.P.No.1368/2021
                Gopal Sethiya Vs. Aayub and others
                               -1-

Indore Dated:-6/4/2021
      Shri Vinay Kumar Zelawat, learned senior counsel with Shri
Pratyush Mishra, learned counsel for the petitioner.
      Shri Prabal Jain, learned counsel for the respondent State.
      Heard through video conferencing.
      The petitioner has filed the present petition being aggrieved by
order dated 10.2.2020; whereby, the application under Order 1 Rule 10
of the Code of Civil Procedure,1908 (hereinafter to be referred to as
"CPC") , has been dismissed.
      Facts

of the case, in short, are as under:-

(i) Respondent no.1/plaintiff filed a suit for declaration and permanent injunction pleading that the suit land was purchased by plaintiff's father Mehboob Khan as his guardian from Munir Khan vide registered sale deed dated 13.2.1973 and since then he is in continuous possession as owner.

(ii) Plaintiff came to know that his name has not been mutated in the Revenue record, therefore, he filed an application for mutation which was opposed by the defendants.

(iii) Hence, the cause of action arose for filing a civil suit for declaration and permanent injunction. Vide judgment dated 23.4.2014, the learned Civil Court has decreed the suit in favour of the plaintiff by declaring him as owner of the suit land and restraining the defendants to alienate the suit property. Being aggrieved by the aforesaid judgment, defendants no.1, 2 and 3 preferred a First Appeal bearing F.A.No.21-A/2020 and vide judgment dated 22.9.2015, the learned First Appellate Court had set aside the decree and remanded the suit before the trail Court to decide afresh after impleading all the legal heirs, joint owners etc. of the respondents. The aforesaid order was assailed before this Court in M.A.No.1839/2015 by the plaintiff. Vide order dated 7.4.2016, this Court has dismissed the appeal.

(iv)After remand, during pendency of the suit, the present petitioner filed an application under Order 1 Rule 10 of the CPC seeking impleadment as a defendant by HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M.P.No.1368/2021 Gopal Sethiya Vs. Aayub and others

virtue of agreement to sell dated 23.10.2010.

(v)According to him, the plaintiff had agreed to sell the suit land bearing survey No.169 area 4.339 hectares and he had paid sale consideration. Thereafter, he applied for registration of the said agreement. Therefore, his interest is involved in the present suit. The aforesaid application was opposed by the plaintiff and defendants both. Vide impugned order dated 10.2.2020, the learned Civil Court has dismissed the said application on the ground that the petitioner is neither a necessary party nor a proper party, hence, the present petition.

I have heard learned counsel for the parties. The present petitioner is claiming impleadment as defendant in the pending suit by virtue of agreement to sell dated 13.2.1973. By virtue of agreement, no title has been transferred to the present petitioner. However, the plaintiff and defendants both are denying the execution of the sale agreement. The petitioner may have independent right to claim decree on the basis of agreement to sell. He cannot be said to be necessary or a proper party. The present dispute is between the present plaintiff and defendants in respect of the suit property as no right has been conferred on the petitioner.

The Supreme court in the case of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil : (2010) 8 SCC 329 has held that the High court in exercise of its power of superintendence cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. The High Court can exercise this power when there has been a patent perversity in the orders of tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M.P.No.1368/2021 Gopal Sethiya Vs. Aayub and others

Hence, the trial Court has not committed any jurisdictional error or illegality in passing the order. No interference is warranted under Article 227 of the Constitution of India. The petition sans merits and is hereby, dismissed.

                                            ( VIVEK RUSIA )
                                                JUDGE

das     Digitally signed by
        REENA PARTHO
        SARKAR
        Date: 2021.04.07
        17:48:24 +05'30'