C.R. No. 7843 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 7843 of 2011 Date of Decision:19.12.2011 Munish Kumar ....Petitioner. Versus Smt. Darshna Rani and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. S.K. Chauhan, Advocate for the petitioner. AJAY KUMAR MITTAL, J. 1. The applicant-petitioner is aggrieved by the order dated 4.5.2011 passed by the trial court dismissing the application filed by him under Order 1 Rule 10 of the Code of Civil Procedure (in short “the Code”) for being impleaded as a party defendant in a suit for partition with consequential relief of permanent injunction. 2. Briefly stated, the facts necessary for adjudication as narrated in the petition are that the plaintiffs-respondents filed a suit for partition with consequential relief of permanent injunction. During the pendency of the suit, the petitioner filed an application under Order 1 Rule 10 of the Code for being impleaded as a party defendant in the suit. It was pleaded in the application that the house in question was the joint property of the parties to the suit as per their respective shares and the same was in joint possession of the parties. It was further C.R. No. 7843 of 2011 -2- pleaded that Kalu Ram son of Molu Ram, owner in possession of the house in question had died intestate and after his death, the property was inherited by his widow Smt. Seria Devi who executed a Will dated 9.6.1989 in favour of the petitioner. Therefore, by execution of the Will in favour of the petitioner, he had got title in the suit property and, thus, become necessary party to the litigation. According to the petitioner, the petition moved under Section 30 of the Land Acquisition Act, 1894 (in short “the Act”) against the petitioner was dismissed and the appeal against the dismissal order was allowed vide order dated 25.7.1998. Thereafter, the petitioner filed appeal bearing No. 311 of 1999 qua the suit property involved in the present suit. This Court vide order dated 31.10.2008 held that the question of the validity of the Will could not be raised in the proceedings under Section 30 of the Act and the appropriate forum to decide the validity of the Will was the civil court. Therefore, the petitioner moved an application for being impleaded as party defendant in the suit. The said application was contested by the plaintiff-respondent No.1 by filing reply. The trial court vide order dated 4.5.2011 dismissed the application filed under Order 1 Rule 10 of the Code. Hence, the present revision petition. 3. Learned counsel for the petitioner submitted that Smt. Seria Devi had executed a Will dated 9.6.1989 which was duly registered on 31.5.1991 in favour of the applicant and, therefore, he had become owner of the property in dispute. Once there was ownership of the applicant in the suit property as a necessary corollary, he being a co- sharer was entitled to be impleaded as a party in the suit for partition. The trial court had erroneously rejected the application and the order C.R. No. 7843 of 2011 -3- was, thus, unsustainable. 4. I have heard learned counsel for the petitioner and do not find any merit in the revision petition. 5. It was not disputed that the trial court while rejecting the application had noticed that the applicant had filed a petition under Section 30 of the Act seeking apportionment of compensation in respect of acquisition of land which was decided against him on 25.7.1998 and therein also, he claimed ownership on the basis of Will. Further, he had filed a civil suit bearing No. 820 of 1990 seeking declaration that he was owner in possession on the basis of Will dated 9.6.1989 executed by Smt. Seria Devi in respect of the property which he had inherited after her demise. The said suit was dismissed under Order 9 Rule 8 of the Code on 7.10.1993 and the said order had become final. 6. On a query being put to the learned counsel, he was unable to demonstrate that there was any document of title except to plead that on the basis of Will dated 9.6.1989 he had become co-sharer in the property in dispute. The trial court while rejecting the application under Order 1 Rule 10 of the Code had recorded as under:- “5. I have perused the citation referred above and documents placed on record during the course of arguments. Thereafter, I have perused the pleadings of the parties which reveals that present suit has been filed by the plaintiff. Evidently they are the legal heirs of Smt. Seria (deceased) and defendant Balram is also legal heir of Smt. Seria and father of applicant Munish. Also it is evident that the present suit is for C.R. No. 7843 of 2011 -4- partition in between the legal heirs of deceased Smt. Seria Devi. 6. Further, it would be appropriate to mention here that it is evident on the judicial file from the documents filed today by the applicant that the applicant had already raised his claim on the basis of 'Will' alleged to have been executed by Smt. Seria (his grand mother) by filing a civil suit, which has been certainly dismissed under order 9 rule 8 CPC. 7. So far as the contention of learned counsel for the applicant that res-judicata is not applicable to the facts of the present case and the Tribunal cannot adjudicate the matter regarding the dispute about the Will and only civil court has got jurisdiction, is concerned, in this regard, it is pointed out here that since applicant Balram (defendant in this case) is not other than the father of applicant Mukesh and more so the applicant Mukesh has already exhausted the remedy available to him, but could not succeed therein as discussed above and on getting failure in establishing his claim on the basis of alleged 'Will' dated 9.6.1989 has moved the application in the present case and there is no reason not to believe that the present application has been moved at the instance of Balram Saini (defendant and father of applicant) just to delay the proceeding of the case for C.R. No. 7843 of 2011 -5- the reasons best known to him, for which they cannot be permitted by law. 8. That being so taking into account the peculiar facts and circumstances of the case especially when Balram, the father of the applicant is already contesting the case and more so the suit property has been claimed by the parties to the suit, being the legal heirs of Smt. Seria (deceased) and, therefore, the applicant had no right to file the present application. However, the applicant shall be at liberty to exhaust the remedy, if any, available to him before competent court of law, if so desired. Thus, the arguments advanced by learned counsel for the applicant appears to be devoid of merits and the citation referred to by him are not applicable to the facts of the present case. That being so, with the foregoing reasons, the application in hand is hereby dismissed.” 7. No illegality or perversity could be pointed out in the aforesaid order as the petitioner was unable to show that there was any ownership rights in his favour. Accordingly, there is no merit in this revision petition and the same is hereby dismissed. December 19, 2011 (AJAY KUMAR MITTAL) gbs JUDGE