HARDEVA Vs. ISMAIL

JUDGEMENT

(1.) THIS revision application arises out of a suit filed by Ismail and three others against Noora and Hardeva, defendants Nos. 1 and 2 respectively alleging that in field Khasra No. 204 measuring 19 Bighas 7 Biswas in village Nuhand, Tahsil rajgarh, the plaintiffs had 1/2 share and the other half belonged to Noora defendant No. 1. The field had not been partitioned and the plaintiffs and defendant No. 1 were in joint possession thereof. Defendant No. 1 sold the entire field to defendant No. 2 on 17th October, 1962, under a sale-deed showing a fictitious amount of Rs. 2000 as consideration and got it registered on 26th october 1962. The plaintiffs further alleged that they were prepared to purchase share of defendant No. 1 and that they had asked defendant No. 1 to sell the field to them after taking Rs. 1000 but the said defendant refused to do so. The plaintiffs claimed for a declaration that they were owners of half share in the said field and also a decree for pre-emption of half share of Noora. This suit was contested by defendant No. 2 who denied the case set up by the plaintiffs that they had half share in the field or that they had a right of pre-emption. During the pendency of the suit, Noora died on 11th April, 1963, and the plaintiffs filed an application on 19th July, 1963, praying that his legal representatives be brought on record. Defendant No. 2 contested the application on the ground that it was barred and that the suit ad abated. The trial Court held that the application for bringing the legal representatives of Noora was barred by limitation but held that the suit had not abated in its entirety and proceeded to try the suit after striking down the name of Noora.

(2.) DEFENDANT No. 2 filed a revision application under Section 115 of the Code of civil Procedure in this Court praying that as the suit had abated in its entirety, the court had no jurisdiction to proceed with the trial of the suit. The learned single judge referred the case to a Division Bench as in his opinion, the ruling of this court in Poonamchand v. Motilal, ILR (1955) 5 Raj 77. = (AJR 1954 Raj 287), required reconsideration. The case was argued before the Division Bench. The following three questions were argued before the Division Bench :-

(3.) WE first take up the second point for consideration. On this point, poonamchand's case, TLR (1955) 5 Raj 77 = (AIR 1954 Raj 287), is against the plaintiffs. The facts in that case were that Motilal had sold certain immovable property to the father and grandfather of one Gulabdas. There was a decree against Gulabdas in which the property was put to sale and purchased by Daudas and one another. Poonamchand plaintiff claimed in the suit filed by him that the property belonged to him as it had fallen to his share on a partition between plaintiff and Motilal. The question arose whether Motilal was a pro forma defendant. It was held that Motilal was not a pro forma defendant but was a necessary party to the suit as the plaintiff was attacking the sale by Motilal and another in favour of Gulab-das's father and grandfather of the plaintiff. This authority was cited before Bapna J. in Bhairon Bux v. Hazarimal, ILR (1960) 10 raj 305, but he refused to follow this authority and held that the vendor is not a necessary party where a third person claims both against the vendor and the vendee and institutes a suit to safeguard his rights against the vendee.