Mohd Anwar Alam Andors vs State Of Raj And Ors
2022 Latest Caselaw 2792 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 10622/2016

1. Mohd Anwar Alam son of Late Shri Mohd. Maqbool Alam, aged
about 61 years, Resident of Jail Road, Jhalawar at present 16
Krishna Enclave, Civil Lines, Kota (Raj.)
2. Smt. Aneesa Fatima W/o Shri Amanullah Khan, aged about 66
years, Resident of behind Chaman Hotel, Near Masjid, Nayapura,
Kota (Raj.) through Power of Attorney Abdul Majid Patan W/o
Shri Abdul Hameed Khan, Resident of 6, Behind Akashwani
Colony, Kota (Raj.)
3. Smt. Yasmin Abrar W/o Late Dr. Abrar Ahmed, aged about 57
years, R/o F-201, A.Lan W-5-A, Western Enclave, Saink Farms,
New Delhi through Power of Attorney Abdul Majid Patan W/o Shri
Abdul Hameed Khan, Resident of 6, behind Akashwani Colony,
Kota (Raj.)
4. Dr. Sahain Alam W/o Dr. Ashraf Patan, aged 54 years,
Resident of 27A, Ashok Colony, Malviya Nagar, Jaipur through
power of attorney Abdul Majid Patan W/o Shri Abdul Hameed
Khan, Resident of 6, behind Akashwani Colony, Kota (Raj.)
                               ----Plaintiff-Non-Applicants-Petitioners
                                  Versus
1. State of Rajasthan through District Collector, Jhalawar
2. Tehsildar, Jhalrapatan, District Jhalawar (Raj.)
3. Sub-Registrar, Tehsil Jhalrapatan, District Jhalawar (Raj.)
                         ----Defendant-Non-Applicants-Respondent

4. Mohd. Mansoor Alam son of Late Wazir Mohd., R/o Jail Road, Jhalawar, District Jhalawar (Raj.)

---Applicant-Respondent

5. Mohd. Aktar Alam since deceased through Lrs 5/1 Smt. Asifa W/o Late Shri Modh. Akhtar Alam, aged about 62 years, Resident of Alam Gali, Old Jail Road, Jhalawar (Raj.) 5/2 Sushri Jeba Alam @ Mona D/o Shri Mohd. Aktar Alam, aged 36 years, Resident of Alam Gali, Old Jail Road, Jhalawar (Raj.) 5/3 Wasim Alam @ Golu son of Shri Shri Mohd. Aktar Alam, aged 36 years, Resident of Alam Gali, Old Jail Road, Jhalawar (Raj.) 5/4 Mohseen Alam son of Shri Mohd. Akhtar Alam, aged 26 years,Resident of Alam Gali, Old Jail Road, Jhalawar (Raj.)

---Defendant-Non-Applicants-Respondent

(2 of 10) [CW-10622/2016]

For Petitioner(s) : Mr. R.K. Agarwal, Sr. counsel with Mr. Shailesh Prakash Sharma Mr. A.K. Jain For Respondent(s) : Mr. J.P. Goyal, Sr. counsel with Ms. Jyoti Swami Mr. Sanjay Mehrishi

HON'BLE MR. JUSTICE SAMEER JAIN

Judgment reserved on 24/02/2022

Judgment Pronounced on 01/04/2022

1. The present writ petition has been filed under Article 227 of

the Constitution of India being aggrieved of the order dated

31.05.2016 passed by learned Additional District Judge, Jhalawar

in Civil Suit No.8/2015 whereby, the application filed by applicant-

petitioner Mohd. Mansoor Alam under Order 1 Rule 10 (2) of CPC

was allowed.

2. The brief facts of the case are that the plaintiff-petitioner

Mohd. Anwar Alam along with three sisters had filed a suit for

partition and permanent injunction against Mohd. Aktar Alam. It is

important to mention that on 02.08.2014, Mohd. Aktar Alam died

and his widow and legal heirs i.e. sons and daughters were

brought on record. Plaintiff Nos.1-4 and defendant No.1 are real

brothers and sisters whose father Mohd. Maqbool Alam died in the

year 2004 and their mother died in the year 1993. The properties

in dispute are immovable property and agricultural land.

3. On 12.03.2014, a suit for partition was filed in between

plaintiffs and defendants referred above. During the pendency of

the suit, plaintiffs and defendants arrived at compromise on

11.11.2014 under Section 89 of C.P.C. and the same was attested

by the learned Trial Court. It is also important to mention that

prior to entering into compromise, one application for

(3 of 10) [CW-10622/2016]

impleadment was filed by the applicant respondent No.4- Mohd.

Mansoor Alam on the ground that admittedly the subject matter of

the suit is ancestral property upon which, the present suit for

partition cannot be entered into as the applicant is also having

vested right in the property. Secondly, he submitted that since the

subject matter of suit is an ancestral property, entering of

Hibanama/ gift-deed in the year 1953 by Shri Wazir Mohd.,

grandfather of petitioner was a nullity.

4. The contention of the petitioners is that the father of

applicant Shri Wazir Mohd. during his lifetime by way of registered

Hibanama/gift-deed had gifted the property to late Mohd. Maqbool

Alam, father of plaintiffs and defendants.

5. The contention of learned counsel for the petitioners is that

learned Trial Court has erred in allowing the impleadment

application as he is a stranger/ outsider to the suit and he is

indirectly challenging the bonafides of registered gift-deed/

hibanama. After almost five decades, he cannot file a suit to

challenge the same as it is barred by law of limitation. They

further submitted that in Mohammedan law the concept of joint

family and ancestral property does not exist.

6. In support of their contentions, they relied upon the

judgments of Apex Court in Mumbai International Airport

Private Limited Vs. Regency Convention Centre And Hotels

Private Limited And Others, (2010) 7 SCC 417, Ajambi

(Dead) by Legal Representative vs. Roshanbi And Ors.,

(2017) 11 SCC 544 and Ramesh Hirachand Kundanmal vs.

Municipal Corporation of Greater Bombay & Ors. (1992) 2

SCC 524.

(4 of 10) [CW-10622/2016]

7. In Mumbai International Airport Private Ltd. (supra), it was

held that:-

"15. A "necessary party" is a person who ought to have

been joined as a party and in whose absence no effective

decree could be passed at all by the court. If a "necessary

party" is not impleaded, the suit itself is liable to be

dismissed. A "proper party" is a party who, though not a

necessary party, is a person whose presence would enable the

court to completely, effectively and adequately adjudicate

upon all matters in dispute in the suit, though he need not be

a person in favour of or against whom the decree is to be

made. If a person is not found to be a proper or necessary

party, the court has no jurisdiction to implead him, against

the wishes of the plaintiff. The fact that a person is likely to

secure a right/interest in a suit property, after the suit is

decided against the plaintiff, will not make such person a

necessary party or a proper party to the suit for specific

performance."

8. In Ajambi (supra), it was held that:-

"11. It is true that there is no concept of joint family in

Muslims but it was open to late Shri Shaikaji to give his

property to his children in a particular manner during his

lifetime, which he rightly did, so as to avoid any dispute

which could have arisen after his death. The arrangement so

made was duly accepted by the family members and it was

also acted upon. Only thereafter a formal record of the said

fact was made by late Shaikaji in Ext. D.-7."

9. In Ramesh Hirachand (supra), it was held that:-

(5 of 10) [CW-10622/2016]

"5. It was argued that the Court cannot direct

addition of parties against the wishes of the plaintiff who

cannot be compelled to proceed against a person against

whom he does not claim any relief. Plaintiff is no doubt

dominus litis and is not bound to sue every possible

adverse claimant in the same suit. He may choose to

implead only those persons as defendants against whom

he wishes to proceed though under Order I Rule 3, to

avoid multiplicity of suit and needless expenses, all

persons against whom the right to relief is alleged to exist

may be joined as defendants. However, the Court may at

any stage of the suit direct addition of parties. A party can

be joined as defendant even though the plaintiff does not

think that he has any cause of action against him. Rule 10

specifically provides that it is open to the Court to add at

any stage of the suit a necessary party or a person whose

presence before the Court may be necessary in order to

enable the Court to effectually and completely adjudicate

upon and settle all the questions involved in the suit.

10. The power of the Court to add parties under

Order I Rule 10, CPC, came up for consideration before

this Court in Razia Begum (supra). In that case it was

pointed out that the Courts in India have not treated the

matter of addition of parties as raising any question of the

initial jurisdiction of the Court and that it is firmly

established as a result of judicial decisions that in order

that a person may be added as a party to a suit, he

should have a direct interest in the subject-matter of the

(6 of 10) [CW-10622/2016]

litigation whether it be the questions relating to moveable

or Immovable property.

14. It cannot be said that the main object of the

rule is to prevent multiplicity of actions though it may

incidentally have that effect. But that appears to be a

desirable consequence of the rule rather than its main

objectives. The person to be joined must be one whose

presence is necessary as a party. What makes a person a

necessary party is not merely that he has relevant

evidence to give on some of the questions involved; that

would only make him a necessary witness. It is not

merely that he has an interest in the correct solution of

some questions involved and has thought of relevant

arguments to advance. The only reason which makes it

necessary to make a person a party to an action is that he

should be bound by the result of the action and the

question to be settled, therefore, must be a question in

the action which cannot be effectually and completely

settled unless he is a party.

The line has been drawn on a wider construction of

the rule between the direct interest or the legal interest

and commercial interest. It is, therefore, necessary that

the person must be directly or legally interested in the

action in the answer, i.e. , he can say that the litigation

may lead to a result which will affect him legally that is by

curtailing his legal rights. It is difficult to say that the rule

contemplates joining as a defendant a person whose only

object is to prosecute his own cause of action.

(7 of 10) [CW-10622/2016]

Similar provision was considered in Amon v. Raphael Tuck

& Sons Ltd. (1956) 1 All E.R. 273, wherein after quoting

the observations of Wynn-Parry, J. in Dollfus Mieg et

Compagnie S.A. v. Bank of England (1950) 2 All E.R. 611,

that the true test lies not so much in an analysis of what

are the constituents of the applicants' rights, but rather in

what would be the result on the subject-matter of the

action if those rights could be established, Devlin, J. has

stated:

The test is 'May the order for which the plaintiff is

asking directly affect the intervener in the enjoyment of

his legal rights.'

15. It has been strenuously contended before us

that the second respondent has no interest in the subject-

matter of the litigation and the presence of the

respondent is not required to adjudicate upon the issue

involved in the suit or for the purpose of deciding the real

matter involved. It is pointed out that the subject-matter

in the suit is the notice issued by the Municipal

Corporation to the appellant and the issue is whether it is

justified or not. The Hindustan Petroleum Corporation

Limited is interested in supporting the Municipal

Corporation and sustaining the action taken against the

appellant. But that does not amount to any legal interest

in the subject-matter in the sense that the order, if any,

either in favour of the appellant or against the appellant

would be binding on this respondent. It is true that being

lessee of the premises, the Hindustan Petroleum

Corporation Limited has an answer for the action

(8 of 10) [CW-10622/2016]

proposed by the Municipal Corporation against the

appellant, but for the purpose of granting the relief sought

for by the appellant by examining the justification of the

notice issued by the Municipal Corporation, it is not

necessary for the Court to consider that answer. If that be

so, the presence of the respondent cannot be considered

as necessary for the purpose of enabling the Court to

effectually and completely adjudicate upon and settle all

the questions involved in the suit. The appellant is

proceeded against by the Municipal Corporation for the

alleged action in violation of the municipal laws. The

grievance of the respondent against the appellant, if any,

could only be for violation of the agreement and that is

based on a different cause of action. The consolidation of

these two in the same suit is neither contemplated nor

permissible."

10. Per contra learned counsel for the respondents submits that

the petitioners have not approached this Court with clean hands in

as much as they have not brought on record the order sheet dated

19.11.2014 wherein, learned Trial Court has made it clear that the

objector/ respondent No.4 had already filed application for being

impleaded as party and had also filed an objection against the

compromise being entered into between the parties and as such

suit could not have been decided finally on the basis of the

compromise.

11. Learned counsel for the petitioner has drawn our attention to

the copy of the suit.

12. Learned counsel for the respondent has further submitted

that in the application filed on 09.09.2014, much before the

(9 of 10) [CW-10622/2016]

compromise, it was averred that the property was ancestral and

the petitioner living in joint family under joint ownership, has

vested right in the property and is therefore, a necessary party

under Order 1 Rule 10 CPC.

13. We have gone through the contentions raised by the

respective counsels, judgments cited at Bar and scanned the

record of the case.

14. The admitted facts of the case are that on 09.09.2014, the

application for impleadment was filed by the respondent. In the

said application, he has categorically submitted that the property-

in-question in compromise deed and civil suit filed by the

petitioners is ancestral property wherein, the applicants had equal

right of ownership as was enjoyed by the petitioner's father The

petitioners as well as the applicant are living under one roof, their

business, residence, telephone connection and gas connection are

also common, if he is not impleaded as a necessary party, his

vested right will be affected. It is also true that one of the son i.e.

respondent No.5 represented by legal heirs have also justified,

concurred and endorsed the claim of the applicant i.e. respondent

No.4.

15. For the reasons stated in the impugned order dated

31.05.2016, this Court is not inclined to entertain the present writ

petition under Article 227 of the Constitution of India as there is

no manifest error or error apparent on the face of the record. The

impugned order is justified. The case cited by the petitioner

reported in (2017) 11 SCC 544 titled Ajambi (Dead) by Legal

Representative Vs. Roshanbi & Ors. qua absence of joint

family concept amongst Muslims has to be seen by learned Trial

Court while disposing of the case on merits. The judgment cited

(10 of 10) [CW-10622/2016]

by the petitioner in Mumbai International Airport Private Ltd.

(supra) that he is stranger to the suit is also not tenable as in the

given case the property-in-question is ancestral, and not self-

acquired property. It is true that the plaintiff is a dominus litis and

has right to implead any person as a party against whom he seeks

relief in the suit but in the garb of such right, he neither deprive a

person who has vested right in the property-in-question nor can

get the suit decided malafidely in collusion.

16. For the reasons stated above, this Court is of the view that

the respondent-applicant is a necessary party and the order dated

31.05.2016 is passed in accordance with law. No interference is

called for and the writ petition is therefore, dismissed. All the

pending applications also stand disposed of.

(SAMEER JAIN),J

Simple Kumawat /74

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