1
S.B.CIVIL FIRST APPEAL NO.429/2007.
(Mohd. Sarif & Ors. Vs. Satya Narain & Ors.)
Date of Order :: 9th January 2009
HON’BLE MR. JUSTICE DINESH MAHESHWARI
Mr. B.N. Kalla, for the appellants.
Mr. M.R. Singhvi, for the respondents.
……
Learned counsel for the parties have been heard on the
application (IA No.10621/2008) as moved by the appellants
seeking addition of parties in this appeal.
In the civil suit for declaration, partition, and perpetual
injunction as filed by the plaintiffs-appellants (12 in number)
against the defendants-respondents (6 in number)
[C.O.No.39/2007 in the Court of Additional District Judge
No.1, Chittorgarh], the defendants Nos.1, 2 and 3 moved an
application under Order VII Rule 11 of the Code of Civil
Procedure (CPC) questioning the very maintainability of the
suit on various grounds. By the impugned order dated
07.08.2007, while allowing the said application, the learned
Trial Court has observed that the plaintiffs were seeking to
challenge the judgments and orders of the Revenue Courts
and seeking declaration against the decree as passed by the
Revenue Court in favour of the defendants, essentially on
compromise between the parties; and the learned Trial Court
2
has been of opinion that such a suit was barred under the
provisions of Order XXIII Rule 3 CPC and so also Section 256
of the Rajasthan Tenancy Act and Section 259 of the
Rajasthan Land Revenue Act. The learned Trial Court has
proceeded to reject the plaint while stating its conclusion thus:
”19. कल म ल कर इस पक पर यह प य ज त ह
कक व द क ओर स ज द व पसतत ककय गय ह
वह र जसव नय य लय द र प ररत न”र$य दद” &क
23.5.89, 22.6.89 व 14.2.90 क च”(त) दत हए
पसतत ककय गय ह और र जसव नय य लय द र
पनतव द क पक – ज र ड/क दद” &क 23.5.89 क
शन1 य व न”षपभ व) कर र ददय ज ” व घ षर ककय
ज ” क ब त द व- – कह गई ह, जबकक इसक मलय
आदश 23 न”य 3 ज .द ., ध र 256 र जस: ” ट “-स)
एकट व ध र 259 र जस: ” भ1 र जसव अधधन”य
वज$” करत) ह और ? प त ह1& कक उस सस:नत –
व द क यह व द चल” य गय “ह & ह और व द द र
पसतत व द उपर क ववधधक प वध ” स ब धधत ह,
पररर त: पनतव द गर क ओर स पसतत यह प :$”
पत अ&तग$त आदश 7 न”य 11 ज .द . सव)क र ककय
ज ” य गय ह ।
20. अत: पनतव द गर स&. 1, 2 व 3 क ओर स
पसतत प :$” पत अ&तग$त आदश 7 न”य 11 ज .द .
सव)क र ककय ज त ह त: व द क ओर स पसतत
यह व द ख ररज ककय ज त ह । ड/क पच $ तय र
ह ।”
Aggrieved by the order aforesaid, the plaintiffs have
preferred this first appeal that was admitted for consideration
on 30.08.2007; and, while issuing notices on the stay
application on 03.09.2007, this Court restrained the
respondents from alienating the property in dispute. An
application for vacating the interim order as moved by the
3
contesting respondents came to be rejected on 03.04.2008.
After service on all the respondents, when the matter was to
be taken up for final orders on the stay application, the
appellants moved applications under Order XXII Rule 9 and
Order XXII Rule 4 CPC for setting aside of abatement and
substitution of the legal representatives of the respondent
No.4. Those applications came to be allowed on 19.05.2008
and the legal representatives of the respondent No.4 were
ordered to be taken on record.
Thereafter, while the matter was pending for service on
the legal representatives of the respondent No.4, the plaintiffs-
appellants chose to move the application (IA No.10621/2008)
seeking addition of parties in this appeal. Though such kind of
interlocutory applications having a co-relation with and bearing
on the main case are ordinarily considered at the time of final
hearing of the appeal but the plaintiffs-appellants having
chosen to press the application seeking impleadment of new
parties at this stage of proceedings, and having regard to the
overall circumstances, it is considered appropriate to dispose
of the same by this order.
It has been suggested by way of the application that the
plots of land carved out of the land in dispute have been sold
by the respondents Nos.1 to 3 to one Rajesh Khandelwal,
4
another Smt.Uma Nyati and yet another Smt. Maina Mundara.
Though the appellants have taken care not to state the dates
of such sale deeds in their elaborate application but have
suggested that they were not aware of such sale deeds earlier
and came to know about the same only when objections were
invited or transfer certificates were issued in favour of such
transferees by the Executive Officer of the Municipal Board,
Chittorgarh.
It has been suggested in the application that these
transfers are the subsequent events and though restraint
order has been passed whereby the respondents were
required not to alienate the disputed property, yet the
respondents Nos.1 to 3 sold the land as would appear from
the documents filed along with the application. It is urged that
such transferees are proper and necessary parties in the case;
and it has been prayed in the application that the aforesaid
three transferees and so also the Executive Officer, Municipal
Board, Chittorgarh be permitted to be impleaded as party
respondents for ”better adjudication” of the case. It has also
been argued that if the named persons are not permitted to be
joined, serious complications would arise and the entire case
of the plaintiffs-appellants might be frustrated.
The application so moved by the appellants has been
5
opposed on behalf of the contesting respondents particularly
with the submissions that the suit was filed on 04.04.2007
whereas the sale deeds in favour of the aforesaid three
persons were executed respectively on 12.03.2003,
24.05.2004, and 24.03.2004. It is maintained that the sale
deeds in question were not of subsequent events but were in
existence even at the time of filing of the suit and yet the said
persons were not arrayed as defendants; and being not the
parties before the Trial Court, such persons cannot be
permitted to be arrayed as respondents in this appeal. It is
also pointed out that the Executive Officer of the Municipal
Board has been sought to be joined as a party for no reason.
The contesting respondents submit that the appellants have
neither disclosed the source of their knowledge nor stated
complete details of the sale deeds and the application
deserves to be rejected for want of material particulars. The
contesting respondents have also referred to the fact that the
appellants have filed a regular suit for partition in the Court of
SDO, Chittorgarh, being Revenue Suit No.169/2008; and a
certified copy of the plaint has been placed on record as
Annexure R/3/1.
Having given a thoughtful consideration to the matter,
this Court is clearly of opinion that the application as moved by
6
the appellants deserves to be rejected with costs.
As noticed, the plaintiffs-appellants attempted to
maintain the suit for declaration, partition, and perpetual
injunction in the civil Court. The plaint was presented on
04.04.2007 but came to be rejected by the order dated
07.08.2007 that has been challenged in this appeal. Thus, the
point for determination in this appeal would essentially be as
to whether the plaint was liable to be rejected? Though, at this
stage of proceedings, this Court would not like to make any
comment on the merits of the case of either of the parties or
on the considerations as adopted by the learned Trial Court
but certain it is that for an answer in their favour on the legality
and correctness of the impugned order dated 07.08.2007, the
plaintiffs-appellant shall have to show the error, if any,
committed by the learned Trial Court and shall have to
establish that cognizance of the suit in question was not
barred by any law.
Noticeable it is that the learned Trial Court has not
rejected the plaint by its impugned order dated 07.08.2007 for
want of any necessary party to the suit. It cannot be said that
the presence of any other person than the plaintiffs and
defendants, as arrayed before the Trial Court, is necessary in
order to enable this Court to effectively and completely
7
adjudicate upon and determine the questions involved in this
appeal. The application as moved by the appellants for
addition of parties, thus, remains fundamentally baseless.
There is yet another strong ground wherefor the
application does not merit acceptance. From the documents
as produced on record by the plaintiffs-appellants with the
application, it is but apparent that the sale deeds in question
were executed on 12.03.2003, 24.05.2004, and 24.03.2004
respectively. Obviously, the said sale deeds had been
executed much before filing of the suit by the plaintiffs-
appellants on 04.04.2007. The suggestion as made in the
application that the appellants came to know about such sale
deeds only when the Executive Officer of the Municipal Board,
Chittorgarh proceeded to issue transfer certificates or issued
the notices inviting objections, in the first place does not
inspire confidence and in any case, does not lead to a position
that the sale deeds in favour of said three persons were
anything of subsequent events. The substantive event of
transfer of title under the said sale deeds had already taken
place much prior to filing of the suit by the plaintiffs-appellants.
The said purchasers do not answer to the description of the
transferees pendente lite so as to consider their impleadment
in this appeal.
8
Apart from the aforesaid, the application deserves to be
rejected for yet another reason that even while seeking
impleadment of the said three transferees and the Executive
Officer of the Municipal Board as parties in this first appeal,
the appellants have not stated a word about any cause of
action against them nor have claimed any relief against them
nor have prayed for any amendment of the plaint. On the other
hand, the appellants have filed a revenue suit claiming their
rights in the suit land as would appear from the document
Annex.R/3/1 produced by the contesting respondents.
Interesting it is to notice that in the said revenue suit, the
appellants have joined not only the present respondents and
the aforesaid three persons as parties-defendants but have
impleaded several other persons as defendants and it has
been prayed that the sale deeds executed by the defendants
Nos.1 to 3 in favour of the defendants Nos.12 to 26 (in the
said revenue suit) be declared null and void. It is apparent
that the present application seeking impleadment of only three
of the transferees has been moved by the appellants while
concealing the facts too many and seems to be nothing but an
attempt to somehow enlarge the scope of this appeal even
beyond that of the suit.
Even the conduct of the plaintiffs-appellants does not
9
inspire confidence. In the application as moved, the plaintiffs-
appellants have consciously chosen not to state the dates of
sale deeds though have otherwise stated elaborate particulars
with dates and months. The appellants had not been forthright
while moving the said application; and the application lacking
in bona fide, deserves to be rejected with costs.
The application (IA No.10621/2008), therefore, stands
rejected with costs quantified at Rs.5,000/- (five thousand)
half of which shall be deposited in legal aid by the plaintiffs-
appellants and the remaining shall be paid to the contesting
respondents Nos.1,2 and 3.
Payment/deposit of the amount of costs within 30 days
from today shall be the condition precedent for the appellants
to proceed further with this appeal; and on default, this appeal
shall stand dismissed without reference to the Court.
(DINESH MAHESHWARI), J.
MK