Rajasthan High Court
Abdul Aziz Choudhary @ Gulfam Son ... vs Nisar Ahmed Son Of Late Shri Abdul ... on 19 May, 2022
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 5778/2022
Abdul Aziz Choudhary @ Gulfam Son Of Shri Abdul Jabbar, Aged
About 46 Years, Resident Of Plot No. 3122, Choudhary House,
Mohalla Pannigaran, Moti Katla Bazar, P.s. Subhash Chowk,
Jaipur (Raj.)
----Petitioner
Versus
1. Nisar Ahmed Son Of Late Shri Abdul Gaffar, Aged About
75 Years, Resident Of H.no. 2766, Chabuk Sawaro Ka
Mohalla, Chokdi Ramchandra Ji, Jaipur (Raj.)
2. Mohammad Ismail Son Of Late Shri Abdul Gaffar, Aged
About 62 Years, Resident Of H.no. 242, Bhainso Walo Ka
Mohalla, Behind Moti Katla School, Chokdi, Gangapole,
Jaipur (Raj.)
3. Mohammad Yusuf Son Of Late Shri Abdul Gaffar, Aged
About 65 Years, Resident Of Plot No. 17, Saiyad Colony,
Behind Panch Hanuman Temple, Chaar Darwaja Baahar,
Jaipur (Raj.)
4. Mohammad Ibrahim Son Of Late Shri Abdul Gaffar, Aged
About 65 Years, Resident Of H.no. 242, Bhainso Walo Ka
Mohalla, Behind Moti Katla School, Chokdi, Gangapole,
Jaipur (Raj.)
5. Smt. Chaman W/o Late Shri Sardar Khan, Aged About 75
Years, Resident Of H.no. 242, Bhainso Walo Ka Mohalla,
Behind Moti Katla School, Chokdi, Gangapole, Jaipur
(Raj.)
6. Smt. Malka Begam W/o Abdul Rafik, Aged About 50
Years, Resident Of Plot No. 2309, Balaji Ki Kothi Ka Rasta
Takiya Yakin Shah, Topkhana Huzuri, Ghatgate, Jaipur
(Raj.)
----Respondents
For Petitioner(s) : Mr. Vijendra Yadav
For Respondent(s) :
(2 of 3) [CW-5778/2022]
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
19/05/2022
This writ petition under Article 227 of the Constitution of
India is directed against the order dated 10.03.2022 passed by
learned Additional District Judge No.2, Jaipur Metropolitan-II in
Civil Suit No.90/2021 (430/2021) whereby, an application filed by
the applicant under Order 1 Rule 10 read with Section 151 CPC,
has been dismissed.
The facts in brief are that the respondents no.1 and
2/plaintiffs filed a suit of partition and permanent injunction
against the respondents no.3 to 6/defendants. During its
pendency, the petitioner/applicant filed an application under Order
1 Rule 10 CPC stating therein that he has purchased a part of the
subject property from the defendant no.4 through an agreement
to sell dated 21.10.2020, a will and a power of attorney and
hence, has an interest in the property. The application has been
dismissed by learned trial Court vide its order dated 10.03.2022,
which is subject matter of challenge.
Learned counsel for the petitioner submitted that since, he is
a purchaser of a part of property, his presence is necessary for
just and effective disposal of controversy involved in the suit and
the learned trial Court erred in dismissing his application. He, in
support of his submissions, relies upon a judgment of Hon'ble High
Court of Delhi in case of Saurabh Buildcom Pvt.Ltd vs. Aster
Technologies Pvt. Ltd. & Ors.: MANU/DE/6151/2012.
Heard. Considered.
The learned trial Court has dismissed the application on the
premise that in absence of registered sale deed in favour of the
(3 of 3) [CW-5778/2022]
petitioner, he did not acquire any interest in the property. It has
been held that mere an agreement to sell or a will or a power of
attorney does not create title qua the subject land in favour of the
petitioner. The application filed by him has also been dismissed on
the premise that the plaintiffs being 'dominus litus', cannot be
compelled to litigate against a person not of their choice. Learned
counsel for the petitioner could not satisfy this Court that the
aforesaid findings of the learned trial Court suffer from any
perversity or illegality. It is a well established legal principle that
an agreement to sell does not confer any title upon the purchaser.
Reference may be made to a judgment of the Hon'ble Apex Court
of India in case of Suraj Lamp Industries Pvt. Ltd. vs. State of
Haryana & Anr.: MANU/SC/1222/2011.
The judgment of the Hon'ble Delhi High Court in case of
Saurabh Buildcom Pvt. Ltd.(supra) is of no help to the
petitioner in view of the aforesaid legal position as also the same
having been rendered in different facts and circumstances.
Resultantly, this writ petition is dismissed being devoid of
merit.
(MAHENDAR KUMAR GOYAL),J
LAKSHYA SHARMA /155
Powered by TCPDF (www.tcpdf.org)
