AJAB RAO Vs. DEVI LAL SHARMA

JUDGEMENT

(1.) INVOKING the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') the legal heirs of defendant No. 1 and the defendant No. 2 have called in question the sustainability of the order dated 20.08.99 passed in Civil suit No. 276 -A/97 by the learned IVth Civil Judge Class -II, Chhindwara. The facts as have been exposited in the Civil revision are that M/s. Seth Sheolal Trimbakrao was a partnership firm comrising of three partners, namely. Seth Sheolal Sharma, Trimbakrao Dani and Govind Rao Kale. The said partnership firm had certain houses known as "Seth Sheolal Ka Bada". In civil suit no. 8 -A/37 the said firm was dissolved and assets were distributed in the final decree dated 10.2.55. It is stated that Clause 4 of Item No. 1 of the final decree reads as under -

(2.) THE well and the area round about it marked No. 8 on the plan will be kept joint for the use of all the partners. The area round about the well shall be kept open. The aforesaid plot No. 8 alongwith the well became the subject -matter of Civil Suit No. 276 -A/97 (the suit was re -numbered from time to time and the last number is 276 -A/97). The suit was instituted by the non -applicants No. 1 and 2, namely, Devilal and Surendra Kumar Sharma, respectively who are successors in interest of the partnership firm M/s. Seth Sheolal Trimbakrao. In the said suit the plaintiffs prayed for a decree in their favour directing demolition of superstructure and the removal of the materials on "Ba, Sa, Da, Ka, Kha, Ga" as shown in the plaint map; for possession of the entire plot "A, Ba, Sa, Da, Ka, Kha, Ga, Gha, A" inclusive of the well "W" and two sub -plots "Ba, Sa, Da, Ka, Kha, Ga" and "A, Ba, Ga, Gha, inclusive of the well; for damages of Rs. 1000/ -for use and occupation of the plaintiffs' open plot by the defendants and the cost of the suit. The plaintiffs claimed exclusive title over the suit plot on the basis of registered sale -deed dated 12.1.59. The defendants filed their written statement claiming exclusive right, title and interest over the suit plot. It was further pleaded that by registered sale -deed dated 13.7.58 Trimbakrao Dani had sold the house marked nos. 2 & 3 in the plaint map alongwith his interest over plot No. 8 in favour of Ajab Rao, the defendant No. 1. It was further put forth that subsequent sale -deed executed by Trimbakrao in favour of the plaintiffs did not confer any right, title or interest upon them. The learned trial Judge keeping the controversy in view framed number of issues. After issues were framed the case was eventually fixed for recording of evidence of the plaintiffs on 21.08.87 but till early Ninety's (1990's) the plaintiffs evidence could not be recorded. While the suit was pending Ajab Rao the original defendant No. 1 expired on 29.5.98. The plaintiffs filed an application seeking substitution of legal representatives under order XXII Rule 4 of the Code, and eventually, the legal representatives were brought on record but they were set ex -parte. The case was fixed for further proceeding on 9.4.99.

(3.) ASSAILING the aforesaid order it is contended by Mr. Ravish Agarwal, learned senior counsel for the applicants, that the non -applicant No. 3 could not have joined as plaintiff and in any case he could have only stepping into the shoes of the original plaintiffs who have abandoned their right to proceed with the suit. He has also submitted that as the plaintiffs have not taken leave under Section 52 of the Transfer of Property Act the respondent No. 3 would be governed by the doctrine of lis pendens. The learned counsel in support of his submission placed reliance on the decision rendered in the case of Dhanna Singh and others Vs. BalJinder Kaur and others, : (1997) 5 SCC 476. Resisting the aforesaid submissions it is contended by Mr. Chakravatry, learned counsel for non -applicant No. 3, that the law laid down in the case of Dhanna Singh (supra) is not applicable to the facts of the present case inasmuch as the factual scenario is absolutely different. It is also put forth by him that the non -applicant no. 3 having purchased the right, title and interest of the plaintiffs has the right to be impleaded as plaintiff and continue the suit. It is also canvassed by him that the principle of lis pendens would not affect the rights of non -applicant No. 3. Lastly, it is, submitted by him that the original plaintiffs have exclusive right over suit property, and therefore, non -applicant No. 3 who purchased the property has a right to continue the suit and such right of continuance would not be hit by Section 52 of the Transfer of Property Act. In support of his submission he has placed reliance on the decisions rendered in the case of Ashok Kumar Prakash Chand Vs. Sunnu Khan Allkhan, : 1982 MPLJ 537 and Savitri Devi Vs. District Judge, Gorakhpur and others, : AIR 1999 SC 976. Before I advert to the obtaining factual matrix I think it is apposite to refer to some of the decisions in the field. In the case of Khemchand Shankar Choudhari Vs. Vishnu Hari Patil, : AIR 1983 SC 124 the Apex Court held that a transferee pendente lite of an interest in an immovable property which is the subject matter of suit is a representative in interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceedings. The Apex Court taking note of the provisions of Section 52 of the Transfer of Property Act as well as the provisions of Rule 10 of Order XXII of the Code held as under -