Civil Revision No.440 of 2011 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.440 of 2011 Date of decision: 19.9.2011 Didar Singh ...Petitioner Versus Bhupinder Singh and others ...Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Yogesh Saini, Advocate for the petitioner. AJAY KUMAR MITTAL, J. The petitioner-applicant who is son of defendant no.2- respondent no.5-Kashmir Singh is aggrieved by the order dated 28.9.2010 passed by the Trial Court whereby application filed by him under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure for impleading him as party-defendant was dismissed. 2. Briefly the facts as narrated in the petition are that plaintiff- respondents no.1 to 3 filed a suit for possession as owner of the land measuring 42 Kanals 5 Marlas being ½ share of land measuring 85 Kanals 11 Marlas bearing Khewat No./Khatauni No.80 min/119 min, Khasra Nos. 6//23/3(4-0), 6//24(8-0), 9/1(7-7), 2(7-7), 3/2(4-19), 8/1/2(7-2), 9/1(5-16), 17//15(8-0), 18/1(8-0), 2(8-0), 3(8-0), 4(8-0) situated in village Karkauli, B.B.No.161, Tehsil Chhachhrauli, District Yamuna Nagar by way of specific performance of the agreement to sell dated 11.8.1998 and 4.4.2006 allegedly executed by defendant no.1-respondent no.4 Smt. Karamjit Kaur, who is daughter-in-law of defendant no.2-respondent no.5. Civil Revision No.440 of 2011 -2- **** Defendant No.2-respondent No.5 by fraud and mis-representing the facts got a decree of the aforesaid land in favour of defendant no.1-respondent no.4 and Didar Singh petitioner vide civil Court decree dated 22.8.1995. The said decree was challenged by defendant No.2-respondent no.5 on the ground that the decree was obtained by misrepresentation and fraud. The trial Court dismissed the suit on 25.1.2002 and the appeal was also dismissed by the learned Lower Appellate Court vide judgment and decree dated 12.4.2005. Defendant No.2-respondent No.5 filed Regular Second Appeal No.2087 of 2005 in this Court. During the pendency of the aforesaid appeal defendants No.1 and 2 arrived at a compromise to the effect that defendant no.2 would relinquish his rights, if any, in the property in question on receiving ` 5 lacs and appeal was decided vide order dated 11.11.2005 as compromise dated 17.6.2005 was accepted by defendant no.1. Subsequently, the order dated 11.11.2005 was recalled and the Regular Second Appeal was admitted which is pending. The petitioner, who is also a party in the Regular Second Appeal filed an application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure for impleading him as party-defendant on the ground that Smt. Pritam Kaur, his grand mother was owner in possession of 1/3rd share of the land measuring 84 Kanals 11 Marlas, which was got transferred fraudulently by Kashmir Singh (defendant no.2) in his favour. Pritam Kaur challenged the said transfer which was set aside vide judgment and decree dated 24.9.1997. Thereafter, Pritam Kaur executed a will in favour of the petitioner and the mutation no.541 was sanctioned in favour of the petitioner and as such petitioner has been recorded owner of 2/3rd share of the land and petitioner is also in actual possession of the entire land. The said application was dismissed by learned Trial Court vide impugned order Civil Revision No.440 of 2011 -3- **** dated 28.9.2010. Hence the present revision petition. 3. Learned counsel for the petitioner-applicant submitted that the petitioner is a co-sharer in the land in dispute and as such was proper and necessary party for impleadment as defendant. According to the learned counsel for the petitioner the rights of the applicant would be affected by the judgment and decree and, therefore, the Trial Court erred in dismissing the application. 4. After hearing the learned counsel for the petitioner-applicant, I do not find any merit in the revision petition. 5. The Trial Court had concluded that the petitioner-applicant was unable to demonstrate that he was a co-sharer in the property in dispute. Further the suit filed by the plaintiff is for possession (symbolic) by way of specific performance which was between the plaintiffs and defendants. In such a situation even if the applicant was a co-sharer, the rights of the applicant would not be affected by the judgment and decree that may be passed by the learned Trial Court. The relevant observations of the Trial Court read as under:- “Admittedly, by way of filing the present suit, plaintiffs have sought specific performance of agreement to sell dated 11.8.1998 and 4.4.2006 executed by defendant no.1 Smt. Karamjit Kaur in their favour regarding the land in question, as detailed in the head note of plaint. Though, the provisions contained in Order 1 Rule 10 CPC enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit, but as Civil Revision No.440 of 2011 -4- **** observed by the Hon'ble Supreme Court of India in Kasturi Vs. Iyyamperumal & others, 2005 (1) Apex Court Judgments 640 (SC), two tests to determine as to who is a necessary party in a suit for specific performance of agreement to sell are (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; and (2) no effective decree can be passed in the absence of such party. Further observed that a stranger or a third party to the contract, claiming to have an independent title and possession over the contracted property is not entitled to be added as a party in the suit. The Hon'ble High Court of Punjab and Haryana has also observed in Om Parkash and another Vs. Rajni Gupta and another, 2008 (1) RCR (Civil) 400 (P&H) that in a suit for specific performance of contract against the vendor, other co-owners are not necessary or proper parties and also the person claiming adverse to the claim of a vendor is not a necessary party. In the present case in hand, plaintiffs have sought the relief against defendant no.1 who has allegedly entered into an agreement to sell in favour of plaintiffs regarding the land in question, it is upto the plaintiffs to establish on record that defendant No.1 was fully competent to execute the agreement to sell in question in their favour and they are entitled for the relief claimed by them. In these circumstances, it can be safely concluded that presence of applicant Didar Singh is not required for effective adjudication of the present suit as he is neither necessary nor a proper party. Even there is nothing on the case file to show Civil Revision No.440 of 2011 -5- **** that the applicant is co-owner of the land in question. Accordingly, the mere plea, taken by the applicant that he being co-owner of the land in question is entitled to be impleaded as a defendant in the present suit, is not tenable and the authorities Savitri Devi Vs. District Judge, Gorakhpur & others 1999 (3) CCC 175(SC); Gopinath Dixit Vs. Rama Chandra Dixit & another 2005(2) CCC 117 (Orissa); Sultan Ram and another Vs. ADJ (FT) & another, 2005(2) CCC 600 (Rajasthan); Shri Gopal @ Shri Ram Gopal Vs. Shri Ram Kunwar, 2003(3) CCC 670 (Rajasthan); and Balbir Singh Vs. Anokh Singh & others, 2003(2) CCC 642 (P&H) relied upon by learned counsel for the applicant, are not applicable to the present case being based on different facts. 4. With these observations, it is concluded that applicant Didar Singh is not entitled to be impleaded as defendant in the present suit. Resultantly, his prayer is hereby declined and the application moved by him under Order 1 Rule 10 CPC stands dismissed.” 6. No illegality or perversity could be pointed out in the order dated 28.9.2010 which may warrant interference by this Court. 7. In view of above, finding no merit in the revision petition, the same is dismissed. September 19, 2011 (Ajay Kumar Mittal) Pka Judge