DEEPENDRA CHAUHAN Vs. PHOOL KUMARI CHAUHAN

JUDGEMENT

(1.) This revision has been filed challenging the judgment and order dtd. 29/8/2023 passed by Civil Judge (Senior Division) Gautam Buddh Nagar in Original Suit No. 347 of 2020 (Deependra Chauhan Vs. Phool Kumari Chauhan and others), allowing an application filed by respondent Nos. 4 and 5 under Order I Rule 10 of C.P.C. being paper No. 57 Ga-2.

(2.) Brief facts of the case are that Original Suit No. 347 of 2020 (Deependra Chauhan Vs. Phool Kumari Chauhan and others) was instituted by the plaintiff-revisionist for a decree of partition of the suit property bearing No. C-103 B Sector-39, NOIDA, District- Gautam Buddh Nagar area 163 sq. mtrs. The other relief sought in the suit was a decree of permanent injunction restraining the defendants and their associates from dispossessing the plaintiff from suit property and further restraining them from creating any third party interest in the property in dispute. As per the plaint case, property in question belonged to Sri B.S. Chauhan s/o M.S. Chauhan, (father of the plaintiff- revisionist) and Smt. Phool Kumari w/o Sri B.S. Chauhan (mother of the plaintiff-revisionist). After the death of the father of the revisionist i.e. Sri B.S. Chauhan, with the consent of his heirs, name of Smt. Phool Kumari Chauhan i.e. mother of the revisionist was mutated in the records of NOIDA Authority. According to the plaint case, the property in question was joint property in which plaintiff had a share being heir of deceased B.S. Chauhan after his death. A dispute arose between the members of the family which lead to the institution of the present suit. During pendency of the suit an application under Order I Rule 10(2) of C.P.C. read with Sec. 151 C.P.C. was filed by the respondent Nos. 4 and 5 claiming impleadment in the suit on the ground that the defendant No. 1 (mother of the plaintiff) has executed an agreement to sell in their favour on 12/7/2023. To the said application, the plaintiff-revisionist filed his objection claiming inter alia that the defendant No. 1 is not the sole owner of the property and is a co-owner of the property with plaintiff and other defendants in the suit and has no right to execute the agreement to sell in respect of the entire property in dispute. It has also been pleaded that the agreement to sell has been executed by the defendant No. 1 in collusion with defendant No. 2 in order to frustrate the claim of the plaintiff-revisionist. It has been further pleaded that after the institution of the suit, defendant No. 1 applied for permission from NOIDA Authority for no objection to sell the property, which has been rejected by the NOIDA Authority by order dtd. 14/6/2023. The trial court by judgment and order dtd. 29/8/2023 allowed the impleadment application filed by respondent Nos. 4 and 5. Hence the present revision.

(3.) It has also been contended by counsel for the revisionist that court below has erred in law in allowing the application filed by respondent Nos. 4 and 5 on the basis of an agreement to sell executed in their favour by respondent No. 1 as the agreement to sell does not confer any title on the parties. At the best, holder of an agreement to sell is entitled for specific performance of the agreement. It has been further contended that NOIDA Authority has refused permission to execute the sale deed of the property in dispute by order dtd. 14/6/2023. It has also been contended that respondent No. 1 being co-owner has no right to execute the agreement to sell of the entire property in favour of respondent Nos. 4 and 5 and as a matter of fact, the agreement to sell has been executed by respondent No. 1 in collusion with respondent Nos. 2, 4 and 5 in order to frustrate the claim of the plaintiff-revisionist. Learned counsel for the revisionist submitted that agreement to sell executed in favour of respondent Nos. 4 and 5 is hit by Sec. 52 of Transfer of Property Act.