LATA WADHERA Vs. JAGMEET SINGH AND ANR.

JUDGEMENT

(1.) The petitioner in this petition is aggrieved of an order dated 30.01.2017 passed by the 1st Additional District Judge, Jammu (herein referred to as Trial Judge) in Civil Original Suit No. 61/2006 titled Kewal Krishan Kohli v. Deepak Kohli and has thus, approached this court invoking the powers of superintendence vested in this Court by virtue of provisions of Section 104 of the Constitution of J &K.

(2.) Briefly stated, the facts of the case are that plaintiffs Kewal Krishan Kohli, his mother Shanti Devi Kohli and minor daughter Vaishali Kohli filed a civil suit against the petitioner seeking partition of the suit property by meets and bounds in consonance with last will executed by their ancestor Late Jagdish Raj Kohli on 21.08.1995 and probated after his demise before the court of District Judge, Jammu vide order dated 13.02.1999. It was inter-alia claimed by the plaintiffs aforementioned that Late Sh. Jagdish Raj Kohli had bequeathed his all immovable properties in favour of his legal heirs in the manner given in the Will Deed dated 21.08.1995. Since the properties were not in possession of legatees in the manner it was provided in the Will and therefore, with a view to demarcate the properties and to take possession thereof, a partition of the property by meets and bounds was called for. During the pendency of Suit, learned Trial Court vide its order dated 19.03.2010 restrained the plaintiffs from alienating or mortgaging the suit property till final disposal of the main case. It is stated by the petitioner that the suit property situated at Rehari, Jammu was under the tenancy of Central Council for Research in Ayurveda and Sidha and Late Sh. Jagdish Raj Kohli had filed a suit for ejectment of the tenant which was continued by his legal heirs after his death. A decree for ejectment of the tenant was passed by the Principal District Judge, Jammu on 31.12.2003. It is claimed by the petitioner that since there was dispute inter-se between the Landlords and therefore, the tenant i.e Central Council for Research in Ayurveda and Sidha after vacating the building in compliance to the decree deposited the keys with the Nazir of Principal District Judge, Jammu. Sh. Kewal Krishan Kohli, plaintiff No. 1 in the suit moved an application for handing over the keys of the aforesaid main triple storey building situated at Rehari, Jammu for effecting repairs. The application was allowed by the concerned executing Court and the keys of the house in question were handed over to Kewal Krishan Kohli and others vide order dated 25.03.2013. It is submitted that in grave violation of the order passed by the Trial Court dated 19.03.2010, the plaintiff Kewal Krishan Kohli after obtaining the keys from the executing Court for effecting repairs surreptitiously, without obtaining any permission from the Court where the suit for partition was pending and without the knowledge of the petitioner herein, sold the aforesaid main triple storey building to the respondent No. 1 and lawn to respondent No. 2. Respondent No. 1 and respondent No. 2 after acquiring ownership rights in the part of suit property, filed two separate applications purportedly under Order 1, Rule 10 CPC for being impleaded as party defendants in the suit. The applications were filed by respondent Nos. 1 and 2 on the ground that some portion of the suit property subject matter of partition had been transferred to them during the proceedings by way of two separate deeds executed on 29.07.2013 and 30.03.2013 respectively. They, therefore, claimed that they are the necessary parties and would be adversely affected by the outcome of the suit, if they are not made parties to contest the suit. The contesting plaintiff i.e petitioner herein filed her objections to both these applications and submitted that the transfer of the part of suit property during the pendency of the suit was hit by the doctrine of lis pendens as envisaged under Section 52 of the J &K Transfer of Property Act. Learned Trial court after hearing the learned counsel appearing for the parties and considering the rival contentions allowed both the applications and permitted the respondent Nos. 1 and 2 to be added as party defendants in the suit. They were also permitted to take all such defences which were available to vendor Kewal Krishan Kohli. The learned Trial court after discussing the relevant case law cited before him came to the conclusion that respondent Nos. 1 and 2 being transferees of the suit property pendente lite may not be entitled to be a party as a matter of right but the court has discretion to add them as proper party if his/her interest in the subject matter of the suit is substantial and not just peripheral.

(3.) The petitioner has assailed this order of learned Trial Court by invoking the power of superintendence of this Court vested by virtue of provisions of Article 104 of the Constitution of India.