Jagdev Singh vs Chand Kaur and another

Jai Singh Sekhon, J.—Jagdev Singh Plaintiff has preferred this revision petition against the order of the trial Court allowing to implead Jarnail Singh, Malkiat Singh and Mithu Singh as Respondents during the pendency of the suit, under Order 1 Rule 10 of the Code of Civil Procedure.

In brief, the facts are that Jagdev Singh Plaintiff filed a suit on 7th June 1986 for declaration that he is the owner in possession of the suit land, against his sister Chand Kaur Defendant. In the above referred suit, Chand Kaur Defendant filed written statement and admitted the entire case of her brother Jagdev Singh. Her statement was also recorded by the trial Court to the same effect. The suit was still pending when Jarnail Singh, Malkiat Singh, Mithu Singh sons of Chand Singh filed an application under Order 1 Rule 10 of the CPC for impleading them as Defendants, contending that the aforesaid Mst. Chand Kaur had entered into an agreement dated 4th December. 1986, to sell the land measuring 117 Kanals 8 Marlas in their favour, and that she received Rs. 80,000/- as earnest money. The trial Court allowed their application by holding that they were necessary parties to the suit, while relying upon the findings of this Court in Banarsi Dass Durga Prashad Vs. Panna Lal Ram Richhpal Oswal and Others, , and Major Singh v. Naranjan Singh (1983) 85 P.L.R. 435.

The learned Counsel for the Petitioner has assailed the findings of the trial Court contending that agreement to sell a portion of the disputed land will not create any interest in the property in dispute and that the proposed vendees were not necessary parties to the suit between the owner of the land and her brother. Reliance in this regard was placed on the findings of this Court in Rohi Pam and Ors. v. Mukhtiar Kaur (1986) 89 P.L.R. 303. He further maintained that the findings of this Court in Banarsi Dass''s case (supra) rather support his case. The learned Counsel for the Respondent, on the other hand supported the findings of the trial Court that the proposed vendees on the disputed land are the necessary parties as their interest would be adversely affected in a collusive suit between the brother and the sister. He further maintained that their non-impleading would result in multiplicity of suits.

It was held by this Court in Banarsi Dass''s case (supra) that under Order (sic) Rule 10 of the Code of Civil Procedure, a person may be allowed to join as a party when he is a necessary party or when without his presence the controversy in the suit cannot be completely decided. It was stated that there is no jurisdiction to add a party in any other case merely because that would save a third person the expense and botheration of a separate suit for seeking adjudication of a collateral matter, which was not directly and substantively in issue in the suit into which he seeks intrusion. It is further held that the Plaintiff is the dominus litis and the master of his own case. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief. In the said case, Shri Baaarsi Dass instituted a suit for specific performance of a contract of sale against Smt. Chameli widow of Udha Ram During the pendency of that suit, Panna Lal and Banwari Lal instituted another suit against Shmt. Chameli for a permanent injunction restraining her from interfering with the possession of the Plaintiffs over a Chabutra and in the alternative, they prayed for possession of the property. Baaarsi Dass then moved an application under Order I, Rule 10, CPC for being impleaded as a party in the later suit contending that Chabutra was a part of the property, which was the subject matter of his suit for specific performance of contract against Smt. Chameli and that Panna Lal and Banwari Lal had brought this suit in collusion with Smt Chameli in order to defeat his suit for specific performance. The trial Court dismissed the application by holding that Banarsi Dass was neither a necessary nor a proper party. Banarsi Dass then came up in revision petition which was dismissed by the High Court by holding that he was not a necessary party and that he had not got any vested right in the property as he had yet to establish his right to the property. Thus, it appears that the trial Court had not understood the import of the findings of this Court in Banarsi Dass''s case (supra).

In Major Singh and Ors. v. Niranjan Singh (1983) 85 P.L.R. 435, relied upon by the trial Court, the controversy related to the pleading of the proposed vendees of the property in dispute on the basis of two agreements entered into prior to the filing of the suit filed by the son restraining the father from alienating the land The above referred findings in Banarsi Dass''s case (supra) were distinguished in that case as well by holding that these were not applicable to the facts as the impleading of Banarsi Dass in that case would result in introducing a new cause of action. The findings in Major Singh''s case (supra) are not applicable to the facts of this case as that was a suit by the son restraining his father from alienating the property in dispute, but in that case the controversy relates to the ownership of the land in dispute Certainly, the addition of the proposed vendees in this case would amount to the introducing of a new case, especially when the above referred agreement to sell was executed after the institution of the suit as well as after Mst. Chand Kaur Defendant had filed the written statement admitting the claim of her brother Jagdev Singh.

On the other hand, the latest findings of this Court in Rohi Ram and Ors. v. Mukhtiar, Kaur (1986) 89 P.L.R. 303, support the above referred conclusion that impleading of a party cannot be allowed if it introduces a new cause of action Certainly, in the present case, if the impleading of proposed vendees is held legal, then the Court has to decide a new cause of action whether the alleged agreement to sell was genuine or for consideration. Thus, the only legal remedy available to the proposed vendees is to file a suit for specific performance of the property to sell or for damage for non performance of the contract of sale.

For the foregoing reasons, the proposed vendees of the disputed land cannot be said to be either necessary or proper parties to a suit for declaration of ownership of the disputed land. Accordingly, by accepting the revision petition, the impugned order of the trial Court is set aside. There is, however, no order as to costs.