SARVARI PAV Vs. AAS CHANDRAMA PAV

JUDGEMENT

(1.) THE appellant has come up by way of this appeal challenging the Judgment and Decree dated 31. 1. 1997 passed by the learned Additional District & Sessions Judge, No. 4, Jaipur City, Jaipur in consolidated suit No. 238/79 and 19/80 (79/78 old) and has sought declaration and delivery of the property in suit on the basis of the `will' which was executed in his favour by Maji Shankar Nath on 2. 8. 1967. He had claimed the right, title and interest on the property on the basis of the aforesaid `will'. In the year 1971 defendant No. 1 Aas Chandrama Pav took advantage and unauthorisedly sold the property to defendant Nos. 2 & 3 on 22. 7. 1967. Maji Shanker Nath expired in the year 1971 and thereafter one Smt. Chhota Devi, who had obtained the possession of the said property and filed Civil Suit in Munsif Court and as on 22. 9. 70 a decree was passed, which was challenged by way of the present suit resulting in filing two civil suits against the defendants out of which present appeal has arisen.

(2.) THE main contesting defendant in the case was defendant No. 1 Aas Chandrama Pav. As per written statement filed by him on 29. 3. 1976, averment was made claiming his right over the property. THE written statement of the said defendant No. 1 was also adopted by the legal heirs of defendants No. 12 & 13. THE other defendants have not contested the suit nor any evidence was led on their behalf. However defendant-Prashant Gelda and Devendra Kumar Gelda while adopting the previous written statement made averment confirming the sale deed dated 25. 1. 1964. THEreafter Civil Suit Nos. 238/79 and 19/80 were both consolidated resulting in the impugned Judgment, which is subject matter of challenge in this appeal.

(3.) BE that as it may, in the context of above background in order to appreciate the contentions advanced by the learned counsel for the applicants, it will be pertinent to mention the provisions of Order 22 Rule 10 CPC, which lays down the procedure in case of assignment before final order in suit-" (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest to come for devolved". There has to be an established legal right before any assignment, creation or devolution of the interest which the applicants have failed to establish on record. If it is so, then nothing prevented them from becoming a party to the suit by way of filing an application during pendency of the suit, which admittedly had not been done by them and now at this stage when the contesting parties to this appeal have requested for withdrawal of appeal on the basis of compromise, the abovesaid applicants have opposed the same.