Rohit Arya, J.:— By this petition under Article 227 of the Constitution of India challenge is made to the order dated 27/11/2014 passed by the trial court. Application under Order I Rule 10 CPC filed by the petitioner/intervenor in a suit for partition, permanent injunction and possession has been rejected.
2. Facts necessary for disposal of this application are to the effect that suit house vide house no. 2/120 new No. 23/61 is situated in Chick Santer Morar, District Gwalior. Undisputedly, the suit house was the self acquired property of Late Durgaprasad and he was the exclusive owner thereof. Genealogy of Durgaprasad is as follows:-
3. Plaintiff-Jainarayan had filed suit for declaration and injunction vide civil suit No. 36A/1991 decided on 15/10/1992. Plaintiff claimed that he is the exclusive owner of the suit house by virtue of memorandum of partition drawn by Late Durgaprasad between the plaintiff and defendant no. 1-Satyanarayan; his brother, on 25/2/1949. Under the said memorandum of partition entire house had fallen to plaintiff's share. Defendant no. 1 was given gold and silver ornaments and cash of Rs. 8,000/-. The memorandum of partition was in his own handwriting and signed by Late Durgaprasad, plaintiff and defendant no. 1. It was further asserted that plaintiff was enjoying exclusive rights as sole owner of the suit property since the year 1948. Besides, he had spent substantial amount of money on maintenance and renovation of the house. Defendant no. 1 had left Gwalior long back and was residing at Ludhiyana.
4. Notice was published by defendant no. 5 in a newspaper on 14/5/982 informing that she had entered into a contract to purchase the suit house with defendants no. 1 and 2. This was objected to by the plaintiff and he submitted that he is the exclusive owner of the suit property. As plaintiff found that there was some misgiving of facts by defendants no. 1 and 2 to the public as regards title of the suit property, therefore, he filed a civil suit on 27/6/1983 for declaration of his title and injunction. As, during pendency of the suit, possession was forcibly taken, therefore, mesne profit was also sought besides for removal of unauthorized occupation of defendant no. 5 as well as restoration of his possession. Suit was opposed. Defendant no. 1 claimed that he has equal share with the plaintiff in the suit property after death of Durgaprasad. The partition in the year 1949 was denied and the alleged partition was stated to be the fabricated document. He further stated that he had executed a sale deed in favour of defendant no. 5 on 19/12/1985 and pursuant thereto possession was delivered to the purchaser.
5. The trial court on the aforesaid pleadings framed issues and allowed the parties to lead evidence. The trial court dismissed the suit.
6. On appeal, the first appellate court reexamined the entire oral and documentary evidence brought on record by parties. The first appellate court had partly allowed the appeal with the finding that the suit property was a self acquired property of Late Durgaprasad, who died prior to Hindu Succession Act came into force, therefore, both the sons inherited the property. The claim of plaintiff of being the exclusive owner of the suit property was found not proved and findings recorded by the trial court was endorsed by this Court in that behalf in para 11 of the order and thereafter in para 12 that after the death of Durgaprasad property remained in joint possession of plaintiff and defendant no. 1 and plaintiff was held entitled for declaration that he is the holder of half share in the joint property. The defendant no. 5 being the purchaser of the joint family property was held not entitled to secure possession of the property unless a suit for partition and possession is filed by him and his share is carved out. The remedy lied with the purchaser was to file a suit for partition and possession of the share. Therefore, to this effect the trial court's judgment was set aside by this Court and plaintiff was held entitled for possession of the suit property from defendant no. 5. In para 13 the this Court held as under:-
“13. The decree is modified to the extent that defendant no. 5 shall deliver possession of the property to the plaintiff as the property is not yet divided and unless property is divided and share is determined, the purchaser being stranger to joint family cannot secure possession of the property. The decree of the trial Court to that extent is modified and it is directed that defendant no. 5 shall deliver possession of the property possessed by her to the plaintiff.”
7. It is not out of place to mention that mother of the petitioner, namely, Shyamwati; one of the daughter's of Late Durgaprasad, in the aforesaid suit had deposed on 12/10/1987 in favour of plaintiff-Jainarayan; her brother, having stated that there was partition of the suit house in the year 1948 effected by her father and the suit house had fallen to the share of the plaintiff. The partition was reduced in writing by Late Durgaprasad and signed by him.
8. The aforesaid judgment and decree passed in the first appeal No. 6/1993 decided on 24/2/1999 was subject matter of Special Leave Petition vide No. 5696/2007, later on converted into civil appeal No. 6548/2014 (Vijay Sood v. Kanak Devi). The Hon'ble Supreme Court by a detailed order dismissed the appeal and held that the High Court's order does not suffer from illegality, which requires correction in the said appeal, on 15/7/2014. Thereafter, the instant suit has been filed vide civil suit No. 96/2005 by the subsequent purchaser Kanakdevi-defendant no. 5 for partition and possession against the heirs of Jainarayan. The wife and daughter of Late Satyanaran, namely, Kamladevi and Meena Sood were also arrayed as defendant nos. 5 and 6. During pendency of the suit, defendant no. 2 filed an application under Order VI Rule 17 CPC seeking amendment for adding Late Mrs. Bhagwati and Mrs. Shyamwati, daughters of Late Durgaprasad, as defendants. The application was rejected by the trial court. On 4/9/2014 Writ Petition No. 5309/2014 filed by defendant no. 2 was withdrawn, therefore, at the instance of defendant no. 2 attempt to add both daughters of Late Durgaprasad was turned down and the same was accepted by defendants. Moreover, even in the earlier suit the predecessor-in-title of defendants no. 1 to 4 had never claimed that daughters of Late Durgaprasad had any share in the suit property and not even made them party, instead claimed to be the exclusive owner of the suit property.
9. At this stage, petitioner/intervenor son of Shyamwati filed an application under Order I Rule 10 CPC in September, 2014 inter alia contending that he had come to know about pendency of instant suit only when he visited to the place of one doctor, namely, Ashwani Arora, where he had gone to offer condolence, wherein relief for partition, injunction and possession to the extent of half of the property is claimed. He claimed to be the son of Shyamwati and grandson of Late Durgaprasad, therefore, he was entitled for 1/4 of the suit property, hence, entitled to be arrayed as defendant. It may not be out of place to mention that except the applicant no other legal heir of decedent Bhagwati and daughter of Late Durgaprasad has filed such an application seeking share in the suit house on the premise of being grandson of Late Durgaprasad.
10. This application was resisted by the plaintiff/respondent as well as defendants no. 1 to 4. The trial court vide order dated 1/10/2014 has rejected the application. The Writ Court on 7/11/2014 while disposing of writ petition No. 6477/2014 arising out of aforesaid order dated 1/10/2014 observed as under:-
“8. Respondent No. 1.plaintiff filed its detailed reply. In para 3 of the reply, it was mentioned that plaintiff has impleaded all the necessary parties and Bhagwati and Shyamlata were not necessary party because on the date of filing of suit they had no legal right to get the property. This aspect and other grounds raised in the reply Annexure P/4 were not dealt with by the Court below.
9. On the basis of aforesaid analysis, it is clear that rejection of application (Annexure P/3) is based on incorrect, irrelevant and improper consideration. The court below has failed to apply its mind on the basic consideration for the purpose of inclusion of a person as a necessary/proper party. At the cost of repetition, in my opinion, the Court below has not dealt with the objections raised in reply regarding right of present petitioner on the date of filing of the suit. The order of Court below suffers from manifest procedural impropriety and irregularity. Resultantly, the order dated 07.10.2014 is set aside. The matter is remitted back to the court below to rehear the parties on the aforesaid aspect and decide the application Annexure P/3 in accordance with law afresh. Parties are free to rely on the judgments cited above before court below.”
11. As such, the trial court was required to decide the application under Order I Rule 10 CPC dealing with the objection raised thereto in reply that the petitioner/intervenor had no legal right to be arrayed as party on the date of filing of the suit. As a result, the trial court reconsidered the aforesaid application under Order I Rule 10 CPC filed by petitioner/intervenor and passed the impugned order.
12. The petitioner/intervenor though made a claim to have 1/4 share in the suit house being son of Shyamwati and grandson of Late Durgaprasad as Class-I heir, however, in his application under Order I Rule 10 CPC nowhere the applicant has stated the date of death of Late Durgaprasad relevant for the purpose of claiming share to the suit property under Section 8 of the Hindu Succession Act as Class-I heir. Defendant no. 1 in his written statement has stated that Durgaprasad had died in the year 1955. In the plaint in para 8 the plaintiff has averred that Durgaprasad had died during 1955-56. Besides, in the affidavit filed by defendant no. 2 grandson of Late Durgaprasad it is stated that Durgaprasad had died in the year 1955. However, in the teeth of the fact that in the earlier round of litigation the trial court as well as the first appellate court since recorded a finding that Late Durgaprasad had died prior to Hindu Succession Act came into force and the suit property being his self acquired property, therefore, had devolved upon both the sons having equal share. In fact the aforesaid question of exact date of death of Late Durgaprasad was found to be not of much consequence, therefore, the trial court held that after the death of Durgaprasad, since the suit property was succeeded by his sons only, now in the suit for partition and possession by subsequent purchaser buying part of share of Late Satyanarayan, predecessor-in-title of defendants no. 5 and 6, in the light of directions issued by this Court in first appeal No. 6/1993 confirmed by Supreme Court in civil appeal No. 6548/2014, the petitioner/intervenor has no right for being added as a party, accordingly rejected his application filed under Order I Rule 10 CPC.
13. The trial court even in the alternative has said that even if Durgaprasad had died after 1956, still his daughters or their successors have no right over the suit property as they were not born after 1956 and relied upon the judgment of Pushpalatha N.V v. V. Padma, AIR 2010 Karnataka 124. Consequently, the application was dismissed with further observations that the suit is pending since 2005 and there is already an order passed by this Court on 9/8/2010 in Writ Petition No. 3098/2009, wherein direction has been issued to decide the suit within six months, besides, there is another order of this Court dated 4/9/2014 in Writ Petition No. 5309/2014 and an order of the Supreme Court dated 15/7/2014 in civil appeal No. 6548/2014 for expeditious disposal of the suit.
14. Before adverting to rival submissions, it is considered apposite to refer to the views of the Supreme Court in the context of discretionary jurisdiction of the trial court under Order I Rule 10 CPC. Plaintiff in the suit is a dominus litus and he is always free to choose the persons against whom he intends to contest and seek relief. He cannot be compelled to make any person party to a suit against whom he does not intend to seek any relief. Therefore, a person, who is not a party to a suit, cannot claim right to be impleaded against wishes of the plaintiff. This is the general rule as regards impleadment of parties in a civil suit. However, this rule is subject to the provisions engrafted under Order I Rule 10(2) CPC, which reads as under:-
“10. Suit in name of wrong plaintiff.-
(1) xxxxxxx
(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”
(Emphasis supplied)
15. A bare perusal thereof suggests that the trial court exercises discretionary jurisdiction in the matter of adding of parties and deleting the parties on such premise, as may appear to be just and proper in such stage of proceedings in a suit with due application of mind where any person, who ought to have been joined as plaintiff or defendant, but was not joined and where a person, whose presence is necessary before the Court to enable the Court to effectually and completely adjudicate upon and settle questions involved in the suit. The Apex Court while considering the scope, ambit and limit of Order I Rule 10(2) CPC in the case of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited, (2010) 7 SCC 417 also explained the difference between the necessary party and proper party by reiterating the law that 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, therefore, if a necessary party is not impleaded, the suit itself is liable to be dismissed. Proper party is a party, who though not necessary, but whose presence would enable the Court to completely, effectively and adequately adjudicate upon the matter at dispute in the suit though he need not be a person in favour of whom the decree is to be made. Relevant paras thereof read as under:-
“22. Let us consider the scope and ambit of Order I of Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.
23. This Court in Ramji Dayawala & Sons (P) Ltd. v. Invest Import - (1981) 1 SCC 80, reiterated the classic definition of ‘discretion’ by Lord Mansfield in R. v. Wilkes - 1770 (98) ER 327, that ‘discretion’
“when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, ‘but legal and regular’.”
25. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.”
16. Besides, the Hon'ble Supreme Court in the context of judgments rendered in Kasturi v. Iyyamperumal, (2005) 6 SCC 733 and Sumtibai v. Paras Finance Co., (2007) 10 SCC 82 has observed in paras 21 and 26 as under:-
“21. On a careful consideration, we find that there is no conflict between the two decisions. The two decisions were dealing with different situations requiring application of different facets of sub-rule (2) of Rule 10 of Order 1. This is made clear in Sumtibai itself. It was observed that every judgment must be governed and qualified by the particular facts of the case in which such expressions are to be found; that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision and that even a single significant detail may alter the entire aspect; that there is always peril in treating the words of a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. The decisions in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay [(1992) 2 SCC 524] and Anil Kumar Singh v. Shivnath Mishra Alias Gadasa Guru [(1995) 3 SCC 147] also explain in what circumstances persons may be added as parties.
26. If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be non-existent. The observations in Kasturi and Sumtibai are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party.”
17. Learned counsel for the petitioner submits that the trial court has committed grave error of law and fact while dismissing the application. It is submitted that as the petitioner/intervenor is the son of Late Shyamwati and grandson of Late Durgaprasad, therefore, he is entitled to succeed 1/4 share in the suit property and, therefore, the trial court ought to have allowed the application under Order I Rule 10 CPC in the suit for partition and possession filed by the purchaser of the share of Satyanarayan; one of the son of Late Durgaprasad, as the share is yet to be determined in a partition suit. Learned counsel relied upon following judgments of the Supreme Court to contend that in those cases even after passing of the preliminary decree in partition suits, applications for modification of preliminary decrees were ordered to be allowed to pass preliminary decree again if after passing of preliminary decree, events have taken place necessitating re-adjustment of share as declared in the preliminary decree, as there is no bar that once a preliminary decree is passed, the Court is precluded from passing preliminary decree subsequently:
1. Prema v. Nanje Gowda, (2011) 6 SCC 462.
2. Ganduri Koteshwaramma v. Chakiri Yanadi, (2011) 9 SCC 788.
18. Learned counsel also submitted that the trial court has committed an error of law wherein in alternative it is held that even if Durgaprasad had died after 1956, his daughters had no share to the suit property, as they were not born after 1956 on the strength of the judgment in the case of Pushpalatha (supra) and further submits that the aforesaid judgment is subject matter of appeal before the Supreme Court and pending consideration.
19. This Court does not intend to test the sustainability of the order of the trial court in the context of aforesaid justifiability of the impugned order.
20. Having perused the aforesaid judgments rendered by the Hon'ble Apex Court this Court finds that there is no dispute that in a partition suit after passing of the preliminary decree the trial court is competent to pass again a preliminary decree subsequently if in the interregnum period any party to the partition suit dies or any amendment of law governing the rights of the parties has undergone change, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. The law laid down by the Apex Court in that behalf is well explained in para 16 of the judgment in the case of Prema (supra), which reads as under:-
“16. We may add that by virtue of the preliminary decree passed by the trial Court, which was confirmed by the lower appellate Court and the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court ceased with the final decree proceedings is not only entitled but is duty bound to take notice of such change and pass appropriate order.”
21. But, looking to the factual matrix in hand, the ratio laid down in aforesaid two judgments, in the opinion of this Court, cannot be of any help to the petitioner. Undisputedly the finding of the trial court confirmed by the High Court as well as The Supreme Court (supra) that the suit property is a self acquired property of Late Durgaprasad, who had died prior to Hindu Succession Act came into force and, therefore, both sons had inherited the property, has attained finality. The instant suit is filed with reference to and in the context of liberty granted by the first appellate court to file a suit for partition and possession to the extent he had purchased the property from the share of Satyanarayan; one of the brothers, wherein the extent of the property purchased by the plaintiff is to be determined upon division of property between the two brothers or other predecessor-in-title (parties to the suit).
22. The submission of learned counsel for the petitioner that as the shares are yet to be determined, as observed by the first appellate court in para 13, therefore, the petitioner/intervenor has substantial and legitimate legal right to be a party to the partition suit being grandson of Late Durgaprasad cannot countenanced for the reason that first of all the finding of death of Durgaprasad is well explicit in the judgment of the High Court being prior to coming into force of Hindu Succession Act and devolution of property upon two brothers by force of law of survivorship, hence, determination as observed by the first appellate court in para 13 is in the context of the extent of property purchased by the plaintiff out of the share of Satyanarayan and no other meaning can be given thereto to enlarge the scope of the suit in ignorance of the judgment of the first appellate court and that of the Supreme Court. As a matter of fact, in the light of the judgments rendered by this Court in the first appeal No. 6/1993 and by the Supreme Court in civil appeal No. 6548/2014, plaintiff has no right to re-agitate the matter seeking claim in the suit property on the principles of res judicata. In the case of Dr. Subramanian Swamy v. State of Tamil Nadu, AIR 2014 SCW 6893 the Apex Court held has under:-
“23. The scope of application of doctrine of res judicata is in question.
The literal meaning of “res” is “everything that may form an object of rights and includes an object, subject-matter or status” and “res judicata” literally means “a matter adjudged a thing judicially acted upon or decided; a thing or matter settled by judgments”. “Res judicata pro veritate accipitur” is the full maxim which has, over the years, shrunk to mere “res judicata”, which means that res judicata is accepted for truth.
24. The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence “interest reipublicae ut sit finis litium” (it concerns the State that there be an end to law suits) and partly on the maxim “nemo debet bis vexari pro uno et eadem causa” (no man should be vexed twice over for the same cause).
Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi, AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee, AIR 1953 SC 65).”
23. It may not be out of place to mention that the mother of the petitioner/intervenor herself has deposed in favour of the predecessor in title of defendant Jainarayan supporting his claim of having exclusive ownership on the suit property. As such, she had full knowledge of the litigation between the parties, which was decided vide civil suit No. 36/1991, first appeal No. 6/1993. She had died in the year 2004. Up-till her death no proceeding was ever initiated by Late Shyamwati for her claim in the suit property being daughter of Late Durgaprasad and the instant application by the son of Shyamwati is filed in the month of September, 2014. This itself shows lack of bonafides and an attempt to somehow subvert the course of justice. Except him none of the successor of his sister Late Bhagwati has come forward for such claim. As such, the facts suggests that the aforesaid application has been filed only to subvert the course of justice in the instant suit filed in compliance of the order passed by the first appellate court in first appeal No. 6/1993. Application is devoid of substance and has rightly been dismissed by the trial court.
24. In the light of the fact that the suit is for declaration and possession and during pendency of the suit plaintiff was dispossessed, reference and reliance to Section 35 of the Specific Relief Act by the counsel for applicant/petitioner is of no assistance.
25. As such, there is no illegality committed by the trial court in the impugned order. The Writ Petition sans merit. Accordingly, dismissed.
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