ARUN SAMPATRAO PATIL Vs. BHIKAJI LAXMAN WAGHMARE

JUDGEMENT

(1.) CIVIL APPLICATION NO. 139 OF 2022 WITH CIVIL APPLICATION NO. 140 OF 2022 : There was a partition suit filed by Appellant before the Joint Civil Judge Senior Division, Pune, being Special Civil Suit No.1478 of 2009 (Original Regular Civil Suit No.565 of 1996). Respondents to the Appeal were Defendants in the suit. The suit was for partition of various properties, as mentioned in the impugned Judgment dtd. 31/7/2012. One of the property was land survey No.143/2. According to Appellants, the land was part of joint ancestral land whereas, it was the case of Respondent No.1(a) to 1(h), who are the legal heirs of original Defendant No.1 that the said property was self acquired property of Defendant No.1. Respondent Nos.1(a) to 1(h) (hereinafter referred to as Respondent No.1 for convenience) had granted development rights to Respondent No.6.

(2.) Applicant herein has filed this Application to be made a party to this Appeal on grounds, inter alia, that Respondent No.6, i.e., Mr.Nilesh Kanade Group through its proprietor Nilesh Satish Kanade had assigned the said property in favour of Applicant. The assignment deed dtd. 13/3/2007 (the deed of assignment), copy whereof is annexed to the application is signed by Respondent No.1, Respondent No.6 and Applicant. The assignment deed has been signed by Respondent No.6, as constituted attorney of Respondent No.1. According to Applicant the assignment happened during the pendency of the suit and it was left to Respondent No.6 to defend the suit and now Respondent No.6 has turned hostile against Applicant and is not pursuing the First Appeal diligently because this Appeal has been pending in this Court for quite some time. According to Applicant, therefore, Applicant should be added as Respondent to the First Appeal. Mr.Kanade relied on Order XXII Rule 10 and 11 of the Code of Civil Procedure (CPC) and also Sec. 146 of the CPC. For ease of reference, both are reproduced herein:

(3.) Mr.Kanade submitted that since Respondent No.6 has assigned his rights to Applicant, by virtue of Order XXII Rule 10 read with Rule 11, the Appeal, by leave of the Court, may be continued by or against Applicant because it is upon Applicant that the interest of Respondent No.6 has devolved.