HARICHAND Vs. DHARAMPAL SINGH BABA

JUDGEMENT

(1.) HEARD Shri A. D. Deoras, learned Counsel for the appellant and Shri Ravish Agrawal, learned Senior Counsel with Shri Pranay Verma, Counsel for the respondent Nos. 1 and 2 on LA. No. 2579/2003 an application submitted on behalf of respondent Nos. 1 and 2 raising an objection to the maintainability of this Letters Patent Appeal. This Letters Patent Appeal arises out of the judgment and decree dated 22-8-1989 passed by Single Judge of this Court Bench at Gwalior in Civil First Appeal No. 1/75. In order to decide LA. No. 2579/2003 we feel it necessary to state brief facts of the case. 1. Plaintiff Shiv Singh had filed a suit for declaration of his title over the suit house and for declaration that the sale deed dated 10-1-1963 executed by defendant No. 2 in favour of defendant No. 1 are not binding upon him and prayed for permanent injunction restraining the defendant Nos. 1 and 2 from interfering with, his possession.

(2.) THE present appellant Hari Chand filed an application in the said suit praying therein that he may be joined either as plaintiff No. 2 or as defendant on the ground that during the pendency of the suit the plaintiff has executed a registered agreement of sale on 18-3-1967 in his favour and since then he is in possession of the suit house. This application submitted by the appellant Hari Chand was rejected by the Trial Court. Against which Harichand had filed a Civil Revision No. 272/68 before this Court, which was decided vide order dated 12-12-1968 in the following terms :- "having regard to the facts and circumstances of this case and particularly because the plaintiff himself joined Shri Ram Babu tenant as a defendant in the suit, the applicant should be allowed to intervene. He should be joined as a defendant. It must, however, be observed that the trial of the suit shall be restricted to the questions raised in the plaint and it is not as if the rights of Harishchandra shall be determined in the suit. No fresh issue shall be framed. It may be mentioned that the Court may reconsider whether issue No. 2 should be allowed to remain or should be deleted. "

(3.) Thereafter the appellant Harichand who was arrayed as defendant No. 6 as per the aforesaid order dated 12-12-1968 filed an application under Order 1 Rule 11 of the Code of Civil Procedure alleging therein that as the plaintiff is not taking any interest in the prosecution of suit, which is detrimental to his interest and that the plaintiff has collided with other defendants, therefore, prayed for his transposition as plaintiff or to permit him to conduct the suit. The Trial Court vide order passed on 1440-1971 partly allowed the application of appellant defendant No. 4. permitted him to conduct the suit on behalf of the plaintiff, however, his prayer for transposition as plaintiff was rejected. Thus, appellant Harichand defendant No. 6 conducted the suit on behalf of the plaintiff. The suit so conducted by the appellant Harichand was decreed by the Trial Court vide judgment dated 14-9-1974.