BASUKINATH YADAV Vs. LADHARI YADAV

JUDGEMENT

(1.) The present writ petition has been preferred under Article 227 of the Constitution of India against an order passed by learned District Judge, Sahibganj dated 4th May, 2009 in Title Appeal No. 18 of 2008, whereby, the application, preferred by the present petitioner as well as respondent Nos. 3, 4 and 5 for adducing additional evidences under Order XLI Rule 27 of the Code of Civil Procedure, 1908, was dismissed and, therefore, the present petitioner has preferred this writ petition.

(2.) learned Counsel appearing for the petitioner submitted that respondent No. 1 is the original plaintiff, who has institute'd Title Suit No. 3 of 2005 for specific performance of an unregistered agreement to sale dated 11th November, 2003. It is also submitted by learned Counsel for the petitioner that though the petitioner is the owner of the property, in question, by registered sale deed dated 6th June, '2005, the petitioner was never joined as a party defendant. Ultimately, the suit was decreed vide order dated 30th July, 2008 and, therefore, the present petitioner along with other persons, who are also the owners of the property, in question, by registered sale deed, as well as original d'efendant have preferred Title Appeal No. 18 of 2008. Thus, it is vehemently submitted by learned Counsel for the petitioner that the petitioner was never joined as a party defendant, though he was an owner by registered sale deed dated 6th June.. 2005. Likewise respondent Nos. 3, 4 and 5 are als'o owners by registered sale deed dated 3th July, 1995, they were also not joined as party defendants and, therefore, the present petitioner as well as respondent Nos. 3, 4 and 5 as well as original defendant have preferred Title Appeal No. 18 of 2008 before learned District Judge, Sahibganj a'nd the application was preferred under Order XLI Rule 27 of the Code of Civil Procedure, 1908 that they want to adduce their additional evidences because they were never joined as parties before the trial court and the registered sale deeds, by virtue of which, the petitioner as well as res'pondent Nos. 3, 4 and 5 have become owners of the property, in question, ought to be allowed to present documents before the appellate court so that these documents will facilitate the appellate court in arriving out at a correct decision of the dispute between the parties. It is further subm'itted by learned Counsel for the petitioner that original defendant has clearly mentioned in paragraph 5 of his written statement that he is now no more the owner of the property, in question, and he has sold away the property. Despite this fact, original plaintiff has not taken any care to join the' purchasers of the property, in question, as defendants. These persons ought to have joined as defendants after proper reading of the written statement, filed by the original defendant and, therefore, leave to prefer an appeal was sought for by the present petitioner and respondent Nos. 3, 4 and 5, which 'was granted by learned District Judge, Sahibganj vide order dated 12th November, 2008, which is at Annexure-4 to the memo of petition. The original plaintiff had never opposed this leave to prefer application by third party to suit. Though, the petitioner as well as respondent Nos. 3,' 4 and 5 were necessary parties, deliberately, they were not joined as party defendants. Thereafter, they are getting first, time opportunity to present those documents before the lower appellate court and, therefore, an application, preferred under Order XLI Rule 27 of the Code of Civil Proced'ure, 1908, ought to have been allowed by the trial court. The trial court has not properly appreciated the fact that the petitioner and respondent Nos. 3, 4 and 5 were never parties before the trial court and, therefore, these registered sale deeds dated 6"1 June, 2005 as well as 3rd July, 1995 could' not be presented. There was no opportunity, at all, with the petitioner as well as respondent Nos. 3, 4 and 5. This aspect of the matter has been lost sight by the lower appellate court and, therefore, the impugned order deserves to be quashed and set aside.

(3.) learned Counsel appearing for respondent Nos. 3, 4 and 5 has adopted the arguments, canvassed by learned Counsel for th'e petitioner, and submitted that respondent Nos. 3, 4 and 5 are also necessary parties in the Title Suit No. 3 of 2005. Despite the fact stated in paragraph 5 of the written statement, filed by original defendant, there is clear mentioning of the sale deed, had a care been taken by the original plaintiff that respondent Nos. 3, 4 and 5 would have been joined as party defendants. This aspect of the matter has also not been properly appreciated by the lower appellate court and, therefore also, the impugned order deserves to be quashed and set aside.