C.R. No. 420 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 420 of 2008 (O&M) Date of decision: January 19 , 2009 Sanjeev Sethi .. Petitioner v. Ram Piari and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. P.S. Dhaliwal, Advocate for the petitioner. Mr. Vikas Jain, Advocate for respondent No. 1. ... Rajesh Bindal J. Challenge in the present petition is to the order dated 23.11.2007, passed by Civil Judge (Senior Division), Chandigarh, whereby the application filed by the petitioner for being impleaded as one of the defendants in the suit filed by respondent No.1 against respondents No.2 and 3 for possession by way of specific performance, was dismissed. Briefly, the facts are that respondent No.1-plaintiff filed a suit for possession by way of specific performance on the basis of an agreement to sell dated 18.10.1991 alleging that respondent No.2 -defendant No.1 had entered into an agreement with respondent No.1-plaintiff and respondent No.3-defendant No.2 for sale of H. No. 3146, Sector 22-D, Chandigarh. It is in this suit that the petitioner filed an application for being impleaded as one of the defendants with the allegations that another agreement to sell dated 9.6.1993 was executed by the vendor in his favour and as the entire sale consideration having been paid to the vendor at the time of execution of agreement to sell, the possession was delivered to the petitioner. However, the learned court below dismissed the application. Learned counsel for the petitioner submitted that in the pending suit, where respondent No.1-plaintiff is seeking to enforce an agreement to sell dated 18.10.1991 in her favour pertaining to the same property, the petitioner is also necessary and property party for two reasons, namely, there is another agreement C.R. No. 420 of 2008 [2] to sell dated 9.6.1993 executed by the vendor in his favour pertaining to the same property and further even the possession of the house was delivered to the petitioner in pursuance of the agreement entered into with him in view of the fact that he had paid the entire sale consideration. He further submitted that in fact, it is a case where a number of persons have been cheated in the sale of property in question. Earlier Mrs. Rani Bhasin and others filed a suit with regard to the same property, which was compromised and in terms of the compromise, the petitioner paid Rs. 2,00,000/- to the prospective vendees therein. The dispute was settled in the court of Civil Judge (Junior Division), Chandigarh. The submission is that in case a decree of possession is passed in favour of respondent No.1 in the suit filed by her, the same will result in multiciplity of litigation as the possession of the property is with the petitioner and for execution of the decree, he will have to be impleaded as party and there again, the objections filed by the petitioner will have to be decided as a suit in terms of the provisions of Order XXI Rule 101 of the Code of Civil Procedure. Considering these facts, the submission is that in case the petitioner is impleaded, he can also put forth his stand before the court so that the lis with regard to the same property amongst various persons is decided once for all. On the other hand, learned counsel for respondent No.1 submitted that the petitioner is neither necessary nor proper party. In a suit for specific performance, it is only the parties to the agreement which are necessary. No third party can join the proceedings. Though the agreement in favour of respondent No.1 is dated 18.10.1991, however, in terms thereof the sale deed was to be executed after the property was transferred in the name of the vendor being legal representative of his father. As the same was not transferred in the record with Estate Office, there was delay in execution of the sale deed. He further submitted that in case the petitioner is so advised, he can file his separate claim on the basis of the agreement to sell in his favour. Respondent No.1-plaintiff should not be compelled to contest the case against the petitioner, the plaintiff being dominus litus. After hearing learned counsel for the parties, I find merit in the submissions made by learned counsel for the petitioner. The undisputed fact is that the suit filed by respondent No.1 against respondents No.2 and 3 for possession by way of specific performance of agreement to sell for H. No. 3146, Sector 22-D, Chandigarh. It is mentioned in the agreement to sell that sale consideration was fixed at Rs. 2,00,000/-, out of which Rs. 50,000/- were paid as earnest money in cash. The balance of Rs. 1,50,000/- were to be paid at the time of execution of the C.R. No. 420 of 2008 [3] sale deed. The last date for registration of the sale deed was fixed within 45 days from the date of transfer of ownership of the house in the name of respondent No.2. It was further mentioned that actual physical possession of the house shall be delivered to the vendee after completion of bargain. There is another agreement to sell dated 9.6.1993 executed in favour of the petitioner with regard to the same house for a total sale consideration of Rs. 4,00,000/-. The entire consideration money is stated to have been paid at the time of execution of the agreement to sell and even the vacant physical possession along with all papers and documents had been handed over to the prospective vendee-petitioner, as is found mentioned in the agreement to sell executed in favour of the petitioner. Another factor, which is relevant for consideration of the prayer in the present petition, is a compromise effected between Rani Bhasin and others versus respondents No.2 and 3 and the petitioner pertaining to the same house, where Rani Bhasin and others had projected an agreement to sell dated 28.12.1991 and a sum of Rs. 95,000/- was paid as earnest money. The dispute was settled amongst the parties and in terms thereof, the petitioner paid a sum of Rs. 2,00,000/- to Rani Bhasin and others by way of pay order so that his title on the property remains clear. Hon'ble the Supreme Court in Sumtibai and others v. Paras Finance Co. Mankanwar, 2007(4) RCR (Civil) 524 opined that any person who has even semblance of title or interest in the property can file an application for being impleaded as party to the litigation. In the aforesaid case, Hon'ble the Supreme Court while considering earlier judgments on the issue and also distinguishing Kasturi v. Iyyamperumal, 2005(2) RCR (Civil) 691 opined as under: “14. In view of the aforesaid decisions we are of the opinion that Kasturi's case (supra) is clearly distinguishable. In our opinion, it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced.” In view of my aforesaid discussion, it is clearly established that the petitioner certainly has some right in the property in dispute before the learned court below as he is in actual physical possession thereof in partial execution of C.R. No. 420 of 2008 [4] agreement to sell executed in his favour on payment of entire consideration money, the petitioner would certainly be a necessary party. Accordingly, the revision petition is allowed. The impugned order dated 23.11.2007 is set aside and the application filed by the petitioner for being impleaded as defendant in the suit is accepted. (Rajesh Bindal) Judge January 19 ,2009 mk