1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6159 OF 2008 Shrikrishna Purushottam Gaidhani ...Petitioner vs. Gajanan Mahadev Gaidhani & Others ...Respondents Mr.Shriram S. Kulkarni for the petitioner Ms Manjiri Parasnis for respondent no.14 Mr.Amit Shirsath i/b Mr.Girish Agrawal for Respondent Nos.2A and 2B. CORAM :A.S.OKA,J. DATE : AUGUST 3, 2009 JUDGMENT : 1 The submissions of the learned counsel for the parties were heard on the last date. The parties were put to notice that the petition will be decided finally at the stage of admission. 2 By this writ petition under Article 227 of the Constitution of India, the petitioner who is the plaintiff has taken an exception to the Judgment and Order dated 24 th June 2008 passed by the learned trial Judge below application at Exh.233. With a view to appreciate the submissions made by the parties, it will be necessary to advert the facts of the case in brief. 3 The petitioner filed a suit for partition and 2 separate possession. The case made out in the suit is that the suit properties are the ancestral properties/ joint family properties and the petitioner and 12 th defendant are having 1/6 th share each in the suit properties. 4 An application was made by the respondent no.14 at Exh.233 invoking provisions of Rule 10 of Order I of the Code of Civil Procedure,1908. The respondent no.14 was not a party to the suit. Reliance was placed by the respondent no.14 on the agreement dated 4 th October 1991 executed by some of the defendants in his favour in respect of the suit properties. It was contended in the application filed by the respondent no.14 that he had paid a sum of Rs. 3 lacs to his vendors. It was alleged in the application that under the said Agreement the vendors were under an obligation to return the amount on or before 4 th October 2000 and on their failure to return the amount, they were under an obligation to sell the property to the respondent no.14 at the prevailing market value. It was alleged that as the vendors did not pay the amount within the stipulated time, his vendors agreed to sell the property to the respondent no.14 for the price of Rs.13 lacs. It is submitted that various amounts have been paid by the respondent no.14 to his vendors who are party defendants to the suit. A prayer was made that the 14 th respondent be ordered to be made a 3 party to the suit. By the impugned order, notwithstanding the opposition of the petitioner, the said application has been allowed. The learned trial Judge relied upon the agreement for sale dated 4 th October 1991. The learned trial Judge observed that prima facie there was material on record to show that the respondent no.14 was in possession of the property. 5 The learned counsel for the petitioner-original plaintiff submitted that respondent no.14 has no direct interest in the suit property. He submitted that the substantive prayer in the suit is for partition and separate possession of the share of the petitioner in the suit properties and therefore, the respondent no.14 who is claiming only on the basis of an agreement for sale was neither a necessary nor a proper party to the suit. He has placed reliance on various decisions including the decisions of the Apex Court in case of Razia Begum Vs.Sahebzadi (AIR 1958 SC 886) and Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay and others [(1992) 2 SCC 524]. He also placed reliance on a decision of this court in case of Gopikabai Nathuram Malewar and another Vs. Bapurao Mahadeorao Surkar [1995 (2) Mh.L.J. 816]. He submitted that the plaintiff cannot be forced to implead respondent no.14 as the plaintiff is dominus litis. 4 6 The learned counsel for the respondent no.14 supported the impugned Judgment and Order. Reliance was placed by him on the decision of the Apex Court in the case of Dhanalakshmi Vs. P. Mohan (AIR 2007 SC 1062). He also placed reliance on the another decision of the Apex Court in case of Amit Kumar Shaw Vs. Farida Khatoon [A.I.R 2005 SC 2209]. He also relied upon the decision of this court in the case of Bhau Laxman Dhor Vs. Budha Manku Dhor (AIR 1926 Bombay 399) as well as the decision in the case of Rajaram Rau Patil Vs. Marcel De Pieade Braganza [2005 (6) Bombay Cases Reporter C.R.360]. Lastly, he placed reliance on the decision of Orissa High Court in case of Krushna Chandra Nayak Vs. Biswajit Saboo (A.I.R 1999 Orissa page 115). He submitted that no interference is called for. 7 I have carefully considered the submissions. As stated earlier, the suit filed by the petitioner is for partition and separate possession of the alleged share of the petitioner in the suit immoveable properties. The respondent no.14 is claiming on the basis of the agreement for sale executed in his favour by some of the defendants. Admittedly, there is no conveyance executed in favour of the respondent no.14. In view of section 54 of the Transfer of Property Act,1882, as of today, the respondent no.14 has no interest in the suit property as agreement for sale does not create any interest in the 5 property subject matter of the agreement. Assuming that there is an agreement for sale executed by some of the defendants in favour of the 14 th respondent and assuming that he is entitled to enforce the said agreement, at the most he will be entitled to claim the property which may be allotted to the share of his vendors at the time of effecting partition. The learned Trial Judge, however, observed that in absence of the respondent no.14 an executable decree cannot be passed. The learned trial Judge has completely ignored that there is no sale deed executed in favour of the respondent no.14. Considering the nature of the prayers made in the suit, the observation of the trial Judge that executable decree cannot be passed was completely erroneous. Only on the basis of of an agreement for sale executed by some of the defendants having undivided share in the suit properties, the respondent no.14 does not become either a necessary or a proper party to the suit for partition and separate possession filed by the petitioner. 8 Hence, the petition must succeed. Hence, I pass the following order : i) Impugned Judgment and Order dated 24 th June 2008 passed below application at Exh.233 is quashed and set aside. ii)The application at Exh.233 stands dismissed. It is 6 made clear that no adjudication has been made as regards the rights claimed by the respondent no.14 on the basis of the alleged agreement. Moreover, the remedies of the said respondent on the basis of the alleged agreements are kept open. iii) A prayer is made by the learned counsel for the respondent no.14 for stay of this order. For the reasons which are already recorded in the Judgment, the prayer is rejected. JUDGE