Smt. Sushila vs Smt. Tara Devi
2024 Latest Caselaw 8352 Raj

Rajasthan High Court - Jodhpur

Smt. Sushila vs Smt. Tara Devi on 23 September, 2024

Author: Rekha Borana

Bench: Rekha Borana

[2024:RJ-JD:38615]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 14350/2024

1.       Smt. Sushila W/o Late Chandmal Bagchar, Aged About 76
         Years, 7 Goverdhan Pura, Narayan Pura, Behind Ladli
         Showroom, Ahmedabad (Gujarat).
2.       Kamlesh S/o Late Chandmal Bagchar, Aged About 54
         Years, 7 Goverdhan Pura, Narayan Pura, Behind Ladli
         Showroom, Ahmedabad (Gujarat).
3.       Gautam S/o Late Chandmal Bagchar, Aged About 52
         Years, 7 Goverdhan Pura, Narayan Pura, Behind Ladli
         Showroom, Ahmedabad (Gujarat).
4.       Mukesh @ Vardhman S/o Late Chandmal Bagchar, Aged
         About 50 Years, 7 Goverdhan Pura, Narayan Pura, Behind
         Ladli Showroom, Ahmedabad (Gujarat).
5.       Dinesh S/o Late Chandmal Bagchar, Aged About 48 Years,
         7    Goverdhan      Pura,       Narayan         Pura,   Behind    Ladli
         Showroom, Ahmedabad (Gujarat).
6.       Siddharth S/o Late Chandmal Bagchar, Aged About 46
         Years, 7 Goverdhan Pura, Narayan Pura, Behind Ladli
         Showroom, Ahmedabad (Gujarat).
7.       Smt. Monal D/o Late Chandmal Bagchar W/o Dinesh
         Shrimal, Aged About 43 Years, Mewari Gate Ke Pass (F.c.
         Wale), Beawar (Raj.).
                                                                 ----Petitioners
                                    Versus
RESPONDENT/PLAINTIFF:
1. Smt. Tara Devi W/o Parasmal Runiwal, Masuda, Presently
Residing At Shastri Nagar, Bhilwara.
RESPONDENT/DEFENDANTS:
1. Tejmal S/o Late Bhanwarlal Bagchar, Through Next Friend
Rajendra Jain S/o Tejmal Bagchar, R/o 368, Manikya Nagar,
Bhilwara.
2. Smt. Sushila W/o Late Bhanwarlal Bagchar, Bagchar Bhawan,
Krishan Mohalla, Bhilwara.
3. Mukesh Jain S/o Late Bhanwarlal Bagchar, Bagchar Bhawan,
Krishan Mohalla,, Bhilwara.
4. Nitin Jain S/o Late Bhanwarlal Bagchar, Bagchar Bhawan,
Krishan Mohalla, Bhilwara.
5. Smt. Ekta W/o Harish Mootha D/o Late Mahesh Kuamr Jain,


                     (Downloaded on 23/09/2024 at 09:08:59 PM)
 [2024:RJ-JD:38615]                  (2 of 11)                       [CW-14350/2024]


 Mootha House, Mangal Market Ke Pass, Khajachi Gali, Beawar,
 District Beawar.
 6. Sunil S/o Late Maankchand Chhajer, Dhanvarsha Shopping
 Center, Bundi Road, Chittorgarh.
 7. Shanta D/o Late Bhanwar Lal Bagchar W/o Ganpat Lal
 Kothari, Sahada, Presently F-12, Basant Vihar, Bhilwara
                                                                 ----Respondents


For Petitioner(s)         :     Mr. Suresh Shrimali with
                                Mr. Rishabh Shrimali
For Respondent(s)         :     Mr. Narendra Thavi with
                                Mr. Mahendra Thanvi



              HON'BLE MS. JUSTICE REKHA BORANA

Order

23/09/2024

1. At the very inception, it is relevant to note that although the

present matter was listed in the cause list of 20.09.2024, on a

permission been sought by learned counsel for the petitioners on

17.09.2024, the same was granted for the matter to be listed on

18.09.2024. This is for the reason that on 09.09.2024, the Court

had directed the matter to be listed on 17.09.2024 but the same

was not listed on the said date.

2. The present writ petition has been preferred against the

order dated 03.08.2024 (Annexure-8) passed by the District

Judge, Bhilwara in Civil Suit No.147/2023 whereby the application

under Order 1 Rule 10, CPC as preferred by the petitioners

applicants was rejected.

3. Before proceeding with the adjudication of the present

petition, a brief of the facts is essential:

i) In the year 1982, a suit was preferred by one Chand Mal for

partition against legal representatives of Bhanwarlal. The said suit

[2024:RJ-JD:38615] (3 of 11) [CW-14350/2024]

was decreed by way of a compromise vide judgment and decree

dated 28.08.1989.

ii) In the year 2003, Tara Devi, one of the legal representatives

of Bhanwarlal i.e. his daughter, preferred a suit with the relief that

the decree dated 28.08.1989 be set aside to the extent of her

share as the compromise decree as obtained by the parties

therein, was without her consent and she was not a signatory to

the compromise.

iii) The said suit as preferred by Tara Devi was subsequently

converted into an application in terms of law and the said

application was ultimately decided on 17.08.2023 while declaring

the decree dated 28.08.1989 to be void to the extent of share of

Tara Devi. However, qua the other reliefs, the plaint was returned

to her with liberty to file a fresh suit.

iv) In pursuance to the liberty as granted vide order dated

17.08.2023, Tara Devi preferred the present suit for partition of

the complete property on 04.10.2023.

v) However, the legal representatives of Chand Mal (Chand Mal

having expired) were not impleaded in the present suit and hence,

an application under Order 1 Rule 10, CPC for impleadment was

preferred on behalf of the legal representatives of Chand Mal with

the specific submission that the earlier suit preferred by Chand

Mal, husband of present petitioner No.1 and father of petitioners

No.2 to 7 for partition qua the same property in question had

already been decreed by way of compromise and hence, in the

present suit for partition as preferred by plaintiff Tara Devi qua the

same property, the petitioners applicants are definitely necessary

parties.

[2024:RJ-JD:38615] (4 of 11) [CW-14350/2024]

It was further submitted that vide judgment and decree

dated 17.08.2023, judgment and decree dated 28.08.1989 was

set aside/declared void only to the extent of share of Tara Devi

and the other part of the decree was maintained. Meaning

thereby, the decree in favour of Chand Mal was maintained.

Evidently, the present suit had been preferred by Tara Devi for

partition of the same property qua which the judgment and decree

dated 28.08.1989 (compromise decree) had already been passed.

vi) The learned Trial Court proceeded on to reject the application

as preferred on behalf of the applicants with the finding that when

once the judgment and decree dated 28.08.1989 had been

declared void vide order dated 17.08.2023, the applicants could

not be termed to be necessary parties in the present suit as the

same was preferred qua plot No.41 only and not the complete

property which was a subject matter of the earlier suit.

4. Learned counsel for the petitioners submitted that the

finding as recorded by the learned Trial Court is erroneous on the

face of it as the decree dated 28.08.1989 had not been declared

to be null and void in toto but had been declared so, to the extent

of share of Tara Devi only. Further, it is clear on record that the

suit preferred by Chand Mal in the year 1982 for partition was qua

plot No.41 only and the present suit is also qua the same

property.

5. Learned counsel for the petitioners further submitted that it

is clear on record that the present plaintiff Tara Devi, in collusion

with her siblings, preferred the present suit to somehow nullify the

decree dated 28.08.1989 which ought not to be permitted and the

[2024:RJ-JD:38615] (5 of 11) [CW-14350/2024]

applicants petitioners deserve to be impleaded in the present suit

proceedings.

6. Per contra, learned counsel for the respondents submitted

that the present writ petition itself has rendered infructuous as

subsequent to the passing of the order impugned dated

03.08.2024, the suit proceedings were referred for settlement to

the ADR Centre on 06.09.2024 and the parties have successfully

entered into a compromise on 09.09.2024 before the Mediator.

The report of successful mediation was forwarded by the Mediator

on 09.09.2024 to the learned Trial Court. Therefore, the suit itself

having been decided by way of compromise, the present petition

has rendered infructuous.

7. On merits, counsel submits that the suit in question for

partition has been preferred by Tara Devi against the legal

representatives of Bhanwar Lal, only to the extent of the property

of the ownership of Bhanwar Lal, her father. Therefore, the suit in

question not being related to the property qua which the decree

dated 28.08.1989 was passed, the applicants could not be termed

to be necessary parties and their application for impleadment has

rightly been rejected by the learned Trial Court.

8. Heard the counsels and perused the material available on

record.

9. For a proper adjudication of the dispute in question,

reference to the pleadings as made by Chand Mal in Civil Suit

No.36/1982 qua which the decree dated 28.08.1989 was passed,

is relevant. The description of the property as mentioned in Suit

No.36/1982 in para Nos.1 & 2 of the plaint was as under:

[2024:RJ-JD:38615] (6 of 11) [CW-14350/2024]

"1- ;g gS fd oknh ,oa izfroknhx.k u0 1&2 ,oa 4 yxk;r 7 ds firk o u0 3 ds ifr eqroQh Jh Hk¡ojyky tks ckxokj us isp ,fj;k HkhyokM+k esa IykWV u0 41 [kjhn dj nksuksa us "kkeykr esa ,d Hkou ukeh HkkX;ksn; xsLV gkÅl dk fuekZ.k djk;k o bl lkeykr esa cuk;s Hkou esa gh "kkeykr lk>s esa O;olk; HkkX;ksn; xsLV gkÅl ukeks 1&4&68 ls izkjaHk fd;k o 8&11&68 dks bl ckcr lkf>nkjk i= Hkh nksuksa i{kksa ds njfe;ku rjrhc fn;k x;k lk>snkjk dh eq[; "krsZ fuEu izdkj gS %&

1- lk>snkjk dk O;olk; dk uke HkkX;ksn; xsLV gkÅl gksxkA 2- lk>snkjs dk vkfFkZd o'kZ 1 vizSy ls 31 ekpZ gksxkA 3- lk>snkjs ds uQs uqd"kku us 50 iSlk oknh o 50 iSlk Hk¡ojyky th dk gksxkA 4- lk>hnkjk dkjksckj dks O;oLFkk nksuksa gh i{k djsaxs ;k ukSdj j[k djkosxsA 5- lkf>nkjs dk eq[; dk;Z ;kf=;ksa dks Bgjkus dh O;oLFkk dk gksxkA

¼2½ ;g gS fd HkkX;ksn; xsLV gkÅl ukeks lk>snkjk O;olk; esa HkkX;ksn; xsLV gkÅl ukeh fcfYMax ds fdjk;s o blesa pyus okys xsLV gkÅl dh vk; gksrh gS HkkX;ksn; xsLV gkÅl ukeks fcfYMax pkj eaftyk okds isap ,fj;k HkhyokM+k ds iM+ksl fuEu gS&

iwoZ%& tk;nkn nhipan th vxzoky if"pe%& tk;nkn ds"kjhey th lksuk.kh mrj%& ljdkjh xyh nf{k.k%& vke jksM+"

10. In para No.1 of the plaint in the earlier Suit No.175/2003

(Application No.65/2012) as preferred by the present plaintiff Tara

Devi, it was pleaded as under:

"okfn;k Jherh rkjk nsoh /keZ ifRu Jh ikjley th :f.koky mez 40 pkyhl o'kZ fuoklh gky "kkL=huxj HkhyokM+k rg0 o ftyk HkhyokM+k ¼jktLFkku jkT;½ fuEufyf[kr okni= izLrqr dj fuosnu djrh gS fd %& 1- ;g fd usrkth lqHkk'k ekdsZV isp ,sfj;k HkhyokM+k esa ,d isr` r lEifÙk Hkw[k.M la[;k 41 bxrkfyl] HkkX;ksn; xsLV gkÅl ukeh fLFkr gSA lEifÙk ds iM+ksl fuEu gS%& iowZ %& Jh fnipUn th vxzoky dh tk;nknA if"pe%& Jh ds"kjhey th lksek.kh dh tk;nknA mRrj%& izfroknh Jh rstey th dh lEifÙk ,oa mlds vkxs ljdkjh xyhA nf{k.k%& vke lM+dA

mDriM+kslksa ds e/; fLFkr lEifÙk isr`d lEifÙk gksdj 3 rhu efUtyk cuh gqbZ gS] mDr lEifÙk ds izfroknh Jh pkUney ds vykok izfroknhx.k Lo0 Jh Hkaoj yky th ckxpkj tks fd okfn;k ,oa izfroknhx.k

[2024:RJ-JD:38615] (7 of 11) [CW-14350/2024]

la[;k 2 nks ls yxk;r 5 ikap rd ds firk Fks ds fof/kd okfj"k gksdj lEifÙk esa lg fgLlsnkj gksrs gq, vf/kiR;/kkjh gSA bl izdkj oknxzLr lEifÙk esa okfn;k dk Hkh fof/kd okfj"k gksus ls fgLlk gSA rFkk vU; izfroknhx.k la[;k 2 nks ls yxk;r 5 ikap rd Hkh okn i= esa vko";d i{kdkj gksus ls cgsfl;r izfroknhx.k i{kdkj cuk;k x;kA "

In para No.3 of the said plaint, it was further pleaded as

under:

"izfroknh la[;k 1 ,d o 2 nks us feydj nwHkhZ laf/k djds okfn;k dk mDr lEifÙk esa fgLlk dks lekIr djus dh cnfu;rh ls U;k;ky; ls le>ksrs ds vk/kkj ij fMØh izkIr dj yh] ftldh tkudkjh okfn;k dks izfroknhx.k }kjk okfn;ksa ds lwpuki= dk tks izR;qrj izkIr gqvk ftlls gqbZA okfn;k us vius vf/koDrk dks funsZ"k fn;k ,oa vf/kdkj i= gLrk{kfjr dj vf/koDrk Jh Jksf=; dks fn;k vkSj vf/koDrk us mDr okn esa tkudkjh izkIr dh rks mDr okn dk fu.kZ; gksuk tkfgj vk;kA ftl ij okfn;k ds funsZ"k ij vf/koDrk us i=koyh ls mDr okni= ls lacaf/kr okfNar dk;Zokgh nLrkost ,ao vU; okni=] izfrokni=] vkosnu i=] vkns"k vkfn dh lR;kfir izfrfyfi;k fnukad 8 vkB uoEcj] 2003 nks gtkj rhu dks izkIr dhA ftlls lkjh fLFkfr Li'V gks xbZA ,oa okni= jkthukes ds vk/kkj ij fMØh gksus dh tkudkjh gqbZA rFkk pkUney ,oa vU; izfroknh Jh rstey ,oa egs"k dqekj dh nqHkhZ laf/k tkfgj gqbZA mDr lR;kfir izfrfyfi;k izkIr djus ,oa uksfVl dk tokc vkus ls okfn;k dks ;g fo"okl gks x;k fd okfn;k ds lkFk /kks[kk dj cnfu;rh ls jkthukek ds vk/kkj ij nwHkhZ laf/k ls fMØh gkfly dj yh gSA blls iwoZ okfn;ksa dks mDr okn dh fMØh gksus vFkok u gksus ds laca/k esa dksbZ tkudkjh ugha FkhA vkSj izfroknhx.k us mDr le>ksrs ds vk/kkj ij foHkktu dh fMØh dks okfn;k ls xqIr j[kk o tkudkjh ugha nhA mijksDr dkj.kksa ls okni= esa izfroknh la[;k 1 ,d Jh pkUney vko";d i{kdkj gksus ls i{kdkj cuk;k x;kA"

In the said suit, it was prayed by Tara Devi as under:

"v- fd okni= dh pj.k la[;k 1 ,d esa of.kZr fooj.k dh lEifÙk ,oa iM+kslksa ds e/; fLFkr lEifÙk dk foHkktu djk okfn;k dks 1@5 ,d@ikap ikposa fgLls dk vf/kiR; fnyk;k tkos foHkktu eki ,oa flekadu ds vk/kkj ij fd;k tkos rFkk okfn;k dk fgLlk foHkktu ds vk/kkj ij okfn;k dks fnyk;k tkus dh fMØh cgd okfn;k fo:) izfroknhx.k lkfgj QjekbZ tkosA ;fn fdlh dkj.k o"k tk;nkn dk foHkktu u gks lds rks mldk cktkj ewY; fu/kkZfjr dj fgLlk okfn;k dks fnyk;k tkosA c- fd fu;fer flfoy okn la[;k 36 Nrhl lu~ 1+982 mUuhlksa cj;klh ftyk U;k;ky;] HkhyokM+k c vuokl pkUney oxsjg fnukad 28 vBkbl vxLr] 1989 mUuhlksa uoklh dks diViw.kZ rjhds ls izkIr dh xbZ fMØh ?kksf'kr dj okfn;ksa ds eqdkcys csvlj ?kksf'kr dh tkos ,oa fof/k esa "kqU; izHkkoh ?kksf'kr dh tkosA"

[2024:RJ-JD:38615] (8 of 11) [CW-14350/2024]

11. It is relevant to note that the suit as preferred by Tara Devi

was subsequently converted into an application and was registered

at No.65/2012. The said application No.65/2012 as preferred by

Tara Devi was allowed vide order dated 17.08.2023 in following

terms:

"40 vr% okfn;k dh vksj ls izLrqr fu;fer okn la[;k 65@12 ¼175@2003½ dks iwoZ okn la[;k 36@82 pkUney cuke rstey oxSjk ds vUrxZr izkFkZuk i= ds :i esa ekurs gq, iwoZ okn esa fnukad 28-08-1989 dks izLrqr le>kSrk okfn;k rkjk nsoh dh vuqifLFkfr esa] fcuk lgefr ds diV dkfjr djrs gq, izLrqr gksuk ik;k tkus ds dkj.k iwoZ okn la[;k 36@82 pkUney cuke rstey oxSjk esa jkthukek ds vk/kkj ij ikfjr fMØh okfn;k ds gd gdwdks o vf/kdkjks dh lhek rd "kwU; ?kksf'kr fd;k tkrk gSA rFkk oknh;k dk nkok "ks'k vuqrks'k dh lhek rd u;k nkok is"k djus dh LorU=rk ds lkFk okil fd;k tkrk gSA ,oa iwoZ okn esa okfn;k ds vykok "ks'k i{kdkjks ds laca/k esa dksbZ er izdV fd;k tkuk U;k;ksfpr ugha ekurk gwWA mDr vkns'k ds lkFk gLrxr nkok iwoZ okn la[;k 36@82 ds vUrxZr izkFkZuk i= ds :i esa ekurs gq, lfuLrkfjr fd;k tkrk gSA

41 vkns"k dh ,d izfr iwoZ okn la[;k 36@82 ¼pkUney cuke rstey oxSjk½ esa Hkh j[kh tkosA og okn i= bl nkos ds lkFk layXu jgsA "

12. Admittedly, in pursuance to the liberty granted to Tara Devi

vide order dated 17.08.2023, the present suit for partition and

permanent injunction has been preferred. A description of the

property in question as made in para No.1 of the plaint in the

present suit is as under:

"1- ;g gS fd usrkth lqHkk'k ekdsZV] isp ,fj;k HkhyokM+k esa Hkq[k.M la[;k 41 ij gksVy HkkX;ksn; ds uke ls tk;nkn fLFkr gS] ftlds iM+kSl fuEukuqlkj gS %& iwoZ %& Jh nhipUn vxzoky dh tk;nkn if"pe %& Jh dsljhey lksekuh dh tk;nkn mRrj %& Jh rstey dh tk;nkn ,oa mlds vkxs ljdkjh xyh nf{k.k %& vke lM+d"

13. A bare perusal of the pleadings as referred to in the

preceding paras makes it crystal clear that the present suit as

[2024:RJ-JD:38615] (9 of 11) [CW-14350/2024]

preferred by plaintiff Tara Devi pertains to the same property qua

which the first suit for partition was preferred by Chand Mal and

was decreed vide compromise decree dated 28.08.1989.

14. It is further clear on record that the decree dated

28.08.1989 was set aside/declared void vide order dated

17.08.2023 only to the extent of share of Tara Devi and nothing

more. It is further crystal clear that it is in pursuance to the liberty

granted by the Court vide order dated 17.08.2023 that the

present suit for partition of the same property has been preferred.

15. Interestingly, Tara Devi, in the earlier suit, impleaded Chand

Mal with a specific averment that he is an essential party to the

suit. Further, it was the specific pleading of Tara Devi in the said

suit that the property is ancestral; and Chand Mal and the other

defendants i.e. the legal representatives of Bhanwar Lal are in

possession of the property in question being the co-parceners.

Meaning thereby, Tara Devi, who had specifically admitted

Chand Mal to be the rightful co-sharer of the property in question,

chose not to implead his legal representatives in the present suit

for partition as preferred by her qua the same property.

A natural conclusion which can be derived from the above

facts is that the present suit is nothing more than an attempt by

Tara Devi, in collusion with her siblings, to nullify the effect of the

decree dated 28.08.1989. Be that as it may.

16. The only conclusion that can be drawn from the overall facts

is that the present petitioners, being the legal representatives of

Chand Mal, are definitely the essential and necessary parties to

the present suit which unquestionably pertains to the same

property qua which the decree dated 28.08.1989 was passed. No

[2024:RJ-JD:38615] (10 of 11) [CW-14350/2024]

decree, whatsoever, can be passed in the present suit without

impleading the present petitioners. Any so-called compromise,

even attempted to have been made qua the same property,

between the legal representatives of Bhanwar Lal, cannot curtail

the rights of the present petitioners.

17. In view of the above observations, this Court is of the clear

opinion that the application as preferred by the applicants for

impleadment in the present suit has wrongly been rejected by the

learned Trial Court on the premise that the decree dated

28.08.1989 had been set aside in toto.

18. The present writ petition is allowed. The order impugned

dated 03.08.2024 therefore deserves to be and is hereby quashed

and set aside. The application under Order 1 Rule 10, CPC as

preferred on behalf of the petitioners is hereby allowed and they

are permitted to be impleaded as party respondents in the suit

(147/2023) in question.

19. So far as the submission made by learned counsel for the

respondents to the effect that the suit itself stands decided by way

of compromise is concerned, as is evident on record, the report of

the mediation proceedings dated 09.09.2024 had been referred to

the Court and the matter was posted for 18.09.2024. Meaning

thereby, no decree, whatsoever, has been passed by the Court till

the said date and therefore, it cannot be concluded that the suit

stands decided/decreed/disposed.

20. As vide the present order, the petitioners applicants have

been permitted to be impleaded in the suit as party defendants,

the suit in question can therefore not be decided on basis of a

compromise entered into between the respondents. The learned

[2024:RJ-JD:38615] (11 of 11) [CW-14350/2024]

Trial Court shall therefore be restrained from passing any decree

on basis of the compromise as entered into between the existing

plaintiff and the defendants. The learned Trial Court shall now

proceed on with the suit proceedings after impleading the present

petitioners as party defendants to the suit in question.

21. Stay petition and all pending applications, if any, stand

disposed of.

(REKHA BORANA),J 376-KashishS/T.Singh/-

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