NARENDRA SINGH SHARMA Vs. PREM NARAYAN

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India is filed challenging the order passed by the trial court dated 17/8/2010 dismissing the application under Order I Rule 10 CPC filed by the applicant/petitioner herein.

(2.) Facts necessary for disposal of this petition are in narrow compass. The suit property belonging to one Dulichand devolved upon his sons, namely, Kanhai, Karan Singh, Preetam Singh, Gendalal and Ganga Prasad. Preetam Singh and Gendalal died intestate. Kanhai is survived by his son Purshottam and Karan Singh is survived by his sons Narendra Singh (applicant/petitioner herein) and Keshav Singh. Ganga Prasad was survived by his sons, namely, Jagdish, Bhagwandas, Shyambabu and Premnarayan; plaintiffs/respondents herein. The suit property is the joint Hindu family property. The suit is filed for declaration and injunction in respect of the aforesaid property. The declaration is sought to the effect that the suit property is the ancestral property of plaintiff, defendant no.1 and defendant no.4, wherein they have equal undivided shares, with further declaration that part of the suit property sold vide registered sale deed dated 13/10/2005 by defendant no.1 -Purshottam to defendants no.2 and 3 be declared as null and void, as the property sold is in excess to the share of defendant no.1. During pendency of the suit, the applicant/petitioner filed an application under Order I Rule 10 CPC inter alia contending that admittedly, as reflected from the pedigree shown in para 2 of the plaint, applicant is shown to be the heir of Late Karan Singh and brother of defendant no.4 -Keshav Singh, however, plaintiff for the reason best known to him has chosen not to implead him party in the suit, though he is also entitled for the share in the suit property, which is the ancestral property. It is also contended that he had no knowledge of the suit having been filed, as he is in Government service and do not reside at Morena, however, no sooner did he acquire the knowledge, has filed the application seeking impleadment in the suit. The trial court by the impugned order has rejected the application with the reasoning that since plaintiff has filed a suit for declaration and sought relief that defendant no.1 is entitled for 1/5th share and plaintiff and defendant no.4 shall be entitled for 4/5 th share in the suit property and the suit is not for possession, therefore, no sooner division takes place, the applicant shall be entitled for his share.

(3.) Learned counsel for the applicant/petitioner contends that the aforesaid reason is ex facie fallacious for more than one reasons. He submits that admittedly Narendra Singh -applicant is the co -sharer in the suit property and in a suit for declaration and division of share of the joint Hindu family property, all the shareholders are required to be impleaded as party. No reason or justification has been given for having not added the applicant/petitioner as party to the suit, though his real brother is added as party. That apart, the relief sought that the sale deed executed by defendant no.1 in favour of defendants no.2 and 3 is in excess to his share and it shall always have a substantial bearing on the rights of the applicant/petitioner in the suit, therefore, the justification for rejection of application that Narendra Singh -applicant shall be entitled for the share in the suit property after the declaration is granted by the court is patently unsustainable. Hence, the impugned order deserves to be set aside.