NIRMALA DHARSINGH BAGHELA Vs. RANJIT SINGH AMARSINGH DHUMAN

JUDGEMENT

(1.) THIS revision is directed against the order dt. 11 -11 -1998 by IInd Civil Judge, Class -II, Raipur in Civil Suit No. 133 -A/1998, whereby the application (Annexure A -5) of respondents Nos. 6, 7, 8 and 9 under Order 1, Rule 1 read with Rule 10 and 13 of Civil Procedure Code for impleading them as party in the suit filed by the petitioners/plaintiffs, was allowed. Undisputably, the plaintiffs/petitioners are the children of Jairam Bhijji Bhai Tank. Brijlal Tank was also the son of said Jairam Bhijji Bhai Tank and the brother of petitioners/plaintiffs. The property in dispute is Khasra No. 475/3 situate at Modhapara, Raipur. The plaintiffs/petitioners filed a suit, (copy of plaint Annexure A -1) alleging that the property in dispute was purchased in two instalments by Jairam Bhijji Bhai Tank in the name of his son Brijlal Tank. By the first sale deed dt. 18 -6 -1953, 6090 sq.ft. of land of said Khasra No. 475/3 was purchased, while subsequently on 5 -10 -1955 by another sale deed 2813 sq. ft. of land of same Khasra was purchased. Both the sale deeds were got executed by Jairam Bhijji Bhai Tank in favour of his son Brijlal Tank. After the purchase as above of the said property, Jairam Bhijji Bhai Tank constructed several shops over the suit land. The shops are in occupation of various tenants. Out of the shops constructed on the suit property, a shop was in occupation of defendants/respondent No. 1 Ranjitsingh Dhuman, while two other shops were in possession of Brijlal Tank. Jairam Bhijji Bhai Tank died in the year 1965. The case of plaintiffs/petitioners was that thereafter the aforesaid property in suit became the Joint Hindu Family ancestral property of the plaintiffs, in which plaintiffs and their brother Brijlal Tank had equal share. After the death of their father, Brijlal Tank realised rent from the tenants of the shops constructed on the suit property, and also continued to carry on his business in the shops in his occupation. Brijlal Tank died in the year 14 -4 -1997. The case of plaintiffs/petitioners further was that after the death of Brijlal Tank, defendants Nos. 1 to 3 instigated the tenant of the shops standing on the suit property, not to pay rent to the plaintiffs. They with mala fide intention also filed an application for mutation of their names setting up an alleged Will dt. 17 -4 -1994 allegedly executed by Brijlal Tank. According to the plaintiff/petitioner the Will was a forgery and was obtained by fraud and was null and void. The plaintiffs/petitioners prayed for declaration : (a) that the suit property is the ancestral property of the plaintiffs and that they are the title holders and owners thereof; (b) that the alleged Will dt. 17 -5 -1994 alleged to be executed by Brijlal Tank was null and void. They also claimed relief of permanent injunction: (1) against the defendant/respondent No. 1 restraining him from transferring the suit property; (2) against defendants Nos. 4 and 5 not to record the names of defendants Nos. 1 to 3 on the suit property and to record the names of plaintiffs as the owners of the suit property.

(2.) IN the said suit respondents Nos. 6 to 9 filed an application (Annexure A -5), under Order 1, Rule 1,10 and 13, Civil Procedure Code for their impleadment in the suit. It was averred in the said application that they are also daughters of Jairam Bhijji Bhai Tank, by his second wife Gomti Ben Tank and that Brijlal Tank was their brother. Therefore, the respondents Nos. 6 to 9 have also right, title and interest in the suit property and therefore they are necessary and proper parties. The said application was allowed by the impugned order and the applicants/respondents Nos. 6 to 9 herein have been ordered to be impleaded. The learned counsel for petitioners/plaintiffs in the first place urged that the plaintiff is the dominus litis and is free to frame the suit as he chooses. He cannot be forced to join the respondents Nos. 6 to 9 as parties. Reliance in this connection has been placed by the learned counsel on Muslim Wakf Board, Bhopal and another vs. Municipal Board, Bhopal, : 1960 MPLJ 659, wherein it has been laid down that plaintiff cannot be compelled against his wishes to implead any one as a defendant. He is perfectly at liberty to frame his suit in any way. As the persons who are not parties to the suit are not bound by the result, it does not at all matter to them as to how the case is decided. It has further been urged that the respondents Nos. 6 to 9 are neither necessary nor proper parties in the suit and therefore the plaintiffs/petitioners could not be directed to join them as party. Reliance in this connection has been placed on the Full Bench decision of this Court Panne Khushali and another vs. Jeewanlal Mathoo Khatik and another, : 1976 MPLJ 170 and Kishorilal vs. Lekhraj,, 1981 (2) M.P. W.N. 65.

(3.) IN the instant case, though it appears that respondents Nos. 6 to 9 are not necessary parties to the suit, still the question that deserves consideration is as to whether the presence of respondents Nos. 6 to 9 in the suit would enable the Court to effectually and completely adjudicate upon and to settle all the questions involved in the suit? From para 13 of the plaint (Annexure A -1) it would appear that the plaintiffs/petitioners inter alia claimed that they alone are the owners and title holders of the suit land and that they have also prayed that their names be recorded by respondents Nos. 4 and 5 in Municipal records, as owners thereof. The respondents Nos. 6 to 9 in their application (Annexure A -5) have stated that the plaintiffs are the children of Late Jairam Bhijji Bhai Tank from his wife Prem Ben Tank, while respondents Nos. 6 to 9 are the daughters of Gomti Ben Tank, another wife of Jairam Bhijji Bhai Tank. Therefore, they have also inherited the suit property and have the same interest therein as that of plaintiffs. Obviously, if the averments of respondents Nos. 6 to 9 as above are established and accepted then they also would have equal share along with the plaintiffs/petitioners in the suit property left by their father Jairam Bhijji Bhai Tank, and consequently the exclusive right and claim over the suit property as asserted by the plaintiffs, would stand negatived. Therefore, for completely and effectually deciding the controversy in the suit and before the relief claimed by the plaintiffs/petitioners could possibly be granted to them, it was necessary that the respondents Nos. 6 to 9 be also permitted to raise their contentions and heard in support thereof. Therefore, the presence of respondents Nos. 6 to 9 appears to be necessary in order to completely and effectually adjudicate upon and to settle the questions involved in the suit. In view of above, the prayer of respondents Nos. 6 to 9 for their impleadment was rightly allowed by the impugned order.