Mohammad Sadruddin vs Upendra Sharan Sharma
2021 Latest Caselaw 2926 MP

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         THE HIGH COURT OF MADHYA PRADESH
                   MP No.4602/2019
   (MOHAMMAD SADRADDIN VS. UPENDRA SHARAN SHARMA &
                       ANR.)

                    Through Video Conferencing

Gwalior, Dated : 02/07/2021

      Shri S.K.Shrivastava, learned counsel for the petitioner.

      Shri Vivek Jain, learned counsel for the respondent No.1.

This petition under Article 227 of the Constitution of India has

been filed against the order dated 27/08/2019 passed by District

Judge, Shivpuri in appeal No.86/2017, by which the application filed

by the petitioner under Order 22 Rule 4 of C.P.C. has been dismissed.

It is submitted by the counsel for the petitioner that the

petitioner had filed the suit for declaration of title and permanent

injunction against the respondents. The said suit was dismissed by

the Trial Court. Against the said judgment and decree, the petitioner

has preferred a civil appeal, which has been registered as RCA

No.86/2017. During the pendency of the said appeal, the respondent

No.2 Kamla Bai expired on 22/02/2019 and accordingly, the

petitioner filed an application for bringing the legal representatives of

Kamla Bai on record. However, by the impugned order dated

27/08/2019, the said application has been rejected.

Challenging the order passed by the Court below, it is

submitted that the Appellate Court committed a material illegality by

holding that since one of the legal representative of the respondent

No.2 i.e. the respondent No.1 is already on record, therefore, it is not

necessary to bring the other legal representative of respondent No.2

on record. It is submitted that if any decree is passed in favour of the

petitioner then, it can be objected by the other legal representative of

the respondent No.2 and under these circumstances, the Appellate

Court should have allowed the application.

Per contra, the petition is vehemently opposed by the counsel

for the respondents. It is submitted by Shri Jain that according to the

petitioner, the respondent No.1 is the owner of a double story

building, which is the subject matter of the suit. An agreement to

purchase, the said property was executed on 13/09/2010 and an

amount of Rs.20,000/- by way of advance was paid to respondent

No.2. Since, the respondent No.2 was going on pilgrimage, therefore,

she assured that they would execute the sale deed after coming back.

On 01/11/2010, the respondents No.2 and 3 came to plaintiff and

demanded Rs.1,00,000/- as they were in need of the said amount and

accordingly, on 01/11/2010 itself and an amount of Rs.1,00,000/- was

given and in lieu thereof, the respondents handed over the key of the

property in dispute. It is alleged that the plaintiff/appellant is residing

in disputed property from 01/11/2010, however, the respondents are

trying to avoid the execution of sale deed and now the respondents

are claiming that respondent No.1 has lost his mental balance and

after he recovers, the sale deed would be executed and now

respondents No.2 and 3 are pressurizing the plaintiff/appellant to

vacate the premises. Under these circumstances, the suit for specific

of performance of contract was filed.

It is submitted that it is the case of the plaintiff/appellant

himself that the respondent No.1 is the owner of property in dispute.

Although, the respondent No.2 was not a necessary party but since,

the appellant/petitioner had claimed that he had given certain amount

to the respondent No.2 and, therefore, she was made party. It is

submitted that since, the respondent No.1 is exclusive owner of the

property in dispute, other legal representative of respondent No.2 are

not necessary party.

Heard the learned counsel for the parties.

It is the case of appellant/petitioner that the respondent No.1 is

the owner of the property in dispute. It is not his case that the

property is jointly owned by respondents No.1 and 2. Thus, it is clear

that the legal representatives of the respondent No.2 have no right in

the property in question. The respondent No.2 was made a party to

this suit only on ground that initially an amount of Rs.20,000/- was

given to her and thereafter on 01/11/2010, an additional amount of

Rs.1,00,000/- was given to the respondents No.1 and 2. Except these

averments, it is not the case of the petitioner/appellant that the

respondent No.2 has any right or title in the property. The averments

made against the respondent No.2 are some acts, which were

performed by her in her personal capacity.

Under these circumstances, this Court is of the considered

opinion that the legal representatives of respondent No.2 are not

necessary party because their right or share in the property is not

stake.

Ex-consequenti, the order dated 27/08/2019 passed by District

Judge, Shivpuri in RCA No.86/2017 is hereby affirmed. The petition

fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Pj'S/-

PRINCEE BARAIYA 2021.07.08 18:20:18 -07'00'