Smt. Prem S. Kumar vs Tilak Raj Kalra and Others

Daya Chaudhary, J.—The present revision petition has been filed for setting aside the order dated 28.11.2011 passed by the Civil Judge (Junior Division), Gurgaon vide which the application under order 1 Rule 10 CPC filed by respondent Nos. 1 to 10 has been allowed. Briefly the facts of the case are that the petitioner filed a suit for declaration with consequent relief of permanent injunction against respondent Nos. 11 to 17 on the premise that land in dispute was allotted to Puran Mal by Rehabilitation/Custodian Department on 16.11.1962 and the same was inherited by Ishwar Devi on the basis of Will executed by Puran Mal. After death of Ishwar Devi, the petitioner became owner of the suit land being adopted daughter of Ishwar Devi on the basis of registered Will. The suit land was under cultivation of Ram Karan i.e. predecessor of respondent Nos. 11 to 17 being tenant under Ishwar Devi and thereafter they became tenant under the present petitioner. Respondent Nos. 11 to 17 are claiming their rights over the property on the basis of a Will dated 17.5.2002. The petitioner filed a suit for declaration challenging the Will dated 17.5.2002 by stating that Will is forged, fictitious and has no effect on the rights of the petitioner.

During the pendency of the suit, respondent No. 1 filed an application under Order 1 Rule 10 CPC for impleading him as party in the suit on the ground that the petitioner is not adopted daughter of Ishwar Devi and father of applicant was owner in possession of half share of the suit property and respondent No. 1 is necessary parry in the suit. The said application was contested by way of filing reply by the petitioner on the ground that Puran Mal was exclusive owner of land in dispute as the land was allotted to him by the Custodian Department and after his death, mutation No. 1429 was also sanctioned in favour of Ishwar Devi in the presence of Pyare Ram in the year 1978. After death of Ishwar Devi, the land was inherited by the petitioner. Thereafter an application was also moved by respondent No. 2 to be impleaded as party being legal heir of Pyare Ram on the basis of same grounds as taken by respondent No. 1. The said application was also contested by the petitioner. The application moved by respondent No. 1 has been allowed vide order dated 28.11.2011 which is subject matter of challenge in the present revision.

Learned counsel for the petitioner submits that the application for impleadment has been allowed without taking into consideration that respondent Nos. 1 and 2 are not necessary party to be impleaded in the suit as no relief is being sought against them. The petitioner has filed the present suit for a separate relief and the respondents have no relevancy in any manner and still application has been allowed. In case the respondents are aggrieved by any action or claiming their right on the basis of Will they have independent remedy to claim their right. Learned counsel also submits that the trial Court has not taken into consideration while allowing the application that in case the petitioner is claiming her right on the basis of adoption deed, the presence of respondents is not necessary. The remedy if any available with the respondents No. 1 to 10 is by way of filing a separate suit against the petitioner.

Learned counsel for respondent Nos. 1 and 2 submits that the petitioner as well as respondent Nos. 1 to 10 are claiming their right over the same property and as such they are necessary party in the suit. Learned counsel for the respondents also submits that only the respondents are aggrieved party and in case adoption deed is found to be valid, they have no right over the property but in case the adoption deed is found to be forged or invalid, the property goes to them. The trial Court has rightly allowed the application only on this ground that they are necessary parties because of their right over the property on the basis of registered Will.

Heard arguments of learned counsel for the parties and have also perused the impugned order as well as other documents on the file.

Admittedly, the suit for declaration was filed by the petitioner by claiming her right over the property in dispute being adopted daughter of Ishwar Devi. The applications for impleadment have been filed by claiming half share of the suit property owned by Pyare Ram as sale consideration of the half of the share was paid by Pyare Ram. It has also been mentioned in the application that Puran Mal''s real sister Smt. Daulti Bai was married with Piare Ram. The applicants Krishan Lal are heirs and successors of Daulti Ram, the sister of Puran Lal.

The applicants are sons and grand sons and successors-in-interest of Daulti Bai. As per Order 1 Rule 10 CPC, the question of addition of parties is to be decided by the trial Court but that discretion has to be exercised keeping in view the facts and circumstances of a particular case. Sub-rule 2 provides that the Court may order at its own or upon application by either party for effectually and completely adjudicating the matter in dispute by either party. Necessary parties are those without whom no decree can be passed. Before passing an order under Sub-Rule (2), the Court must be satisfied that the person proposed to be impleaded as party in the suit is necessary for an effective adjudication of the matter in dispute. As such proper parties are those whose presence is necessary not only for adjudication but to reach to the decision in an effective manner.

In the present case, the petitioner being plaintiff is asserting her right with Puran Mal being exclusive owner of the land in dispute as after his death Ishwar Devi has inherited the land in dispute and thereafter after her death, the plaintiff inherited the suit land being her adopted daughter and also on the basis of Will dated 23.12.1982. On the other hand, the applicants are asserting their right being Class I heirs and also contradict that the petitioner is adopted daughter of Smt. Ishwar Devi.

The trial Court has allowed the applications filed by the respondents by considering them necessary to be impleaded as parties in the suit. Admittedly the property in dispute has been claimed by both the parties. The plaintiff is claiming on the basis of registered Will as well as being adopted daughter of Ishwar Devi, who was adopted by original owner of the property. The applicants are claiming their right being Class I heir. It has also been brought to the notice of the Court that in other two suits between the same parties, the applicants were impleaded as parties. Whether the Will is genuine or forged is a matter of evidence and the same is to be decided by the trial Court on the basis of evidence. The applicants are claiming their right being Class I heirs and they are effected parties. In case the Will in favour of the petitioner is found to be genuine, then the applicants have no right over the property but in case the Will is proved to be forged or adoption deed is also not found to be genuine then the property will go to the applicants.

Accordingly, not only to avoid multiplicity of the litigation but to resolve the controversy also in dispute, the applicants are necessary parties in the suit. Hon''ble Supreme Court in M/s. Aliji Monoji and Co. Vs. Lalji Mavji and others, has held that what makes a person necessary party is not merely that he has relevant evidence to give on some of the questions involved but it is also the reason which makes it necessary to make a person party to an action that he should be bound by the result of action and the question to be settled. There is no merit in the contentions raised by learned counsel for the petitioner and no legal infirmity has been pointed out in the impugned order which requires interference by this petition. The present petition being devoid of any merit is hereby dismissed.