Rajasthan High Court
Hariram Nayak S/O Shri Rameshwar ... vs Lakhim Walia S/O Pawan Kumar Walia on 1 July, 2022
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 7963/2022
Hariram Nayak S/o Shri Rameshwar Lal Nayak, Aged About 55
Years, Resident Of Mahamayo Ka Mohala, Mandawa, Tehsil And
District Jhunjhunu, Rajasthan.
----Petitioner
Versus
1. Lakhim Walia S/o Pawan Kumar Walia, Aged About 37
Years, Resident Of Bhikawala Kuwa, Chuna Chowk, Ward
No 40, Jhunjhunu.
2. Rahul Walia S/o Pawan Kumar Walia, Aged About 32
Years, Resident Of Bhikawala Kuwa, Chuna Chowk, Ward
No 40, Jhunjhunu.
3. Vidhya Beniwal W/o Ramkumar Beniwal, Aged About 66
Years, Resident Of 122, Indra Nagar, Jhunjhunu.
4. Sumit Kyaamsariya S/o Subhash Chandra Kyaamsariya,
Aged About 33 Years, Resident Of Jhunjhunu.
5. Brijmohan S/o Narayan Singh, Aged About 76 Years,
Resident Of Hanumanpuri, Tehsil And District Jhunjhunu.
(Deceased) Legal heirs:
5/1. Shri Chaggan Lal S/o Late Shri Brijmohan, R/o Bissau
Mode, Post Mandawa, Tehsil And District Jhunjhunu.
5/2. Smt. Gayatri Devi D/o Late Shri Brijmohan, R/o Bissau
Mode, Post Mandawa, Tehsil And District Jhunjhunu.
5/3. Smt. Santosh D/o Late Shri Brijmohan, R/o Bissau Mode,
Post Mandawa, Tehsil And District Jhunjhunu.
5/4. Smt. Parmeshwari D/o Late Shri Brijmohan, R/o Bissau
Mode, Post Mandawa, Tehsil And District Jhunjhunu.
5/5. Smt. Makhni Devi, D/o Late Shri Brijmohan, R/o Bissau
Mode, Post Mandawa, Tehsil And District Jhunjhunu.
6. Hari Singh S/o Hanuman Ram, Aged About 63 Years,
Resident Of Mehram Puri, Tehsil Chirawa, District
Jhunjhunu.
7. Neeraj Walia S/o Rajendra Prasad, Aged About 38 Years,
Resident Of Bhikawala Kuwa, Chuna Chowk, Ward No 40,
Jhunjhunu.
8. Naveen Walia S/o Rajendra Prasad Walia, Aged About 41
Years, Resident Of Ward 25, Bhikawala Kuwa, Chuna
(Downloaded on 01/07/2022 at 09:19:06 PM)
(2 of 4) [CW-7963/2022]
Chowk, Ward No 40, Jhunjhunu.
9. Sahil Walia S/o Naresh Kumar Walia, Aged About 30
Years, Resident Of Ward 25, Bhikawala Kuwa, Chuna
Chowk, Ward No 40, Jhunjhunu.
10. Sagar Walia S/o Naresh Kumar Walia, Aged About 27
Years, Resident Of Ward 25, Bhikawala Kuwa, Chuna
Chowk, Ward No 40, Jhunjhunu.
11. Shish Ram Rohilla S/o Palaram Rohilla, Aged About 57
Years, Resident Of Rasoda, Tehsil And District Jhunjhunu
Currently Residing At Photostate Ki Dukaan, Post And
Telephone Exchange Ke Pas, Jhunjhunu.
----Respondents
For Petitioner(s) : Mr. Bhrigu Sharma with
Mr. Akarsh Mathur
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
01/07/2022
This writ petition under Article 227 of the Constitution of
India is directed against the order dated 04.03.2022 passed by
the learned Additional District Judge No.1, Jhunjhunu in Civil Suit
No.92/2016 whereby, an application filed by the
petitioner/applicant under Order 1 Rule 10 read with Section 151
CPC has been dismissed.
The facts in brief are that the respondents No. 1 & 2 filed a
suit for cancellation of Will dated 24.04.2008 as also the sale deed
dated 02.11.2011 executed on the strength of the Will dated
24.04.2008 against the respondents No.3 to 11. In the pending
suit, the petitioner filed an application under Order 1 Rule 10 read
with Section 151 CPC seeking his impleadment as defendant
stating therein that out of the subject property, 100 sq. yds. of
land was sold by Late Hanuman Prasad Walia vide an agreement
to sell dated 01.10.1982 to Abdul Mazid who in turn sold it to him
(3 of 4) [CW-7963/2022]
vide an agreement dated 03.01.1989. The aforesaid application
has been dismissed by the learned trial Court vide its order dated
04.03.2022, impugned herein.
Learned counsel for the petitioner submitted that since he is
owner of part of the subject property, his right may be adversely
affected by any finding/decision of the learned trial Court and
hence, he ought to have been impleaded as the defendant. He, in
support of his submissions, relied upon a judgment of the Hon'ble
Apex Court of India in case of Sumtibai & Ors. Vs. Paras
Finance Co. Regd. Partnership Firm Beawar (Raj.) through
Mankanwar (Smt.) W/o Parasmal Chordia (Dead) & Ors.
(2007) 10 SCC 82 and a judgment of this court dated
12.02.2021 passed in S.B. Civil Writ Petition 726/2021:
Ramanand Chorasiya & Ors. Vs. Faguni & Ors.
Heard. Considered.
A perusal of the judgment impugned dated 04.03.2022
reveals that the learned trial Court has assigned cogent reasons
while dismissing the application filed by the petitioner seeking his
impleadment as a defendant. It has been observed by the learned
trial Court that the suit is for cancellation of the Will dated
24.04.2008 as also the sell deed dated 02.11.2011 executed on
the basis of the Will in which the presence of the petitioner is not
necessary for its just and effective disposal.
This Court has gone through the application filed by the
petitioner seeking his impleadment and is not satisfied that it
discloses any reason necessitating his impleadment. As already
stated, the suit is for cancellation of the will dated 24.04.2008 as
also the sale deed dated 02.11.20211; but, in none of the
documents, the petitioner is either a party or his rights, if any, on
(4 of 4) [CW-7963/2022]
the strength of the agreement to sell dated 03.01.1989 in the
subject property, are going to be adversely affected.
Contention of the learned counsel for the petitioner that
being owner of part of the subject property, he ought to have
been impleaded as one of the defendant cannot be countenanced
in as much as it is trite law that an agreement to sell does not
confer any title on the purchaser.
In the present case, indisputably, the petitioner is said to
have purchased a part of the property through an agreement from
Abdul Mazid who in turn is also stated to have entered into an
agreement to sell with erstwhile owner of the property. The
learned trial Court has also recorded a categorical finding that the
petitioner has not filed any suit for specific performance of the
agreement executed way back on 03.01.1989.
This Court is in respectful agreement with the law laid down
by the Hon'ble Apex Court of India in case of Sumtibai (supra);
but, the same has no applicability in the present case. Similarly,
the judgment of this Court in case of Ramanand Chorasiya
(supra) is of no help to the petitioner having been rendered in
entirely different facts and circumstances.
Learned counsel for the petitioner could not satisfy this Court
that the order dated 04.03.2022 suffers from any perversity or
patent jurisdictional error so as to warrant interference of this
Court under its limited supervisory jurisdiction vide Article 227 of
the Constitution of India.
Accordingly, the writ petition is dismissed being devoid of
merit.
(MAHENDAR KUMAR GOYAL),J
Sudha/49
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