C.R. No. 7544 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 7544 of 2011 Date of Decision:19.12.2011 Krishna ....Petitioner. Versus Harish and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Harkesh Manuja, Advocate for the petitioner. AJAY KUMAR MITTAL, J. 1. The application filed by the applicant-petitioner under Order 1 Rule 10 of the Code of Civil Procedure (in short “the Code”) having been dismissed by the trial court vide order dated 16.11.2011 has necessitated the petitioner to approach this Court by way of present petition under Article 227 of the Constitution of India for setting aside the said order. 2. Briefly stated, the facts necessary for adjudication as narrated in the petition are that plaintiff-respondent No.1 filed a suit for permanent injunction against the legal heirs of Risal Singh including the petitioner. The said suit was dismissed by the trial court vide judgment and decree dated 27.9.2006. The appeal filed against thereto was also dismissed by the appellate court vide judgment and decree dated 15.6.2007. Subsequently, respondent No.1 had filed a suit for partition C.R. No. 7544 of 2011 -2- regarding his half share purchased vide registered sale deed dated 26.6.2001 by impleading respondents No.2 and 3 as defendants and without impleading the other legal heirs of Risal Singh including the petitioner who were in possession of the suit property. A preliminary decree dated 2.6.2008 for possession by way of partition was passed by the trial court in favour of respondent No.1. When warrants of possession were issued, the applicant-petitioner came to know about the filing of suit for possession by way of partition. Thereafter, the petitioner filed a suit for declaration with consequential relief of permanent injunction by impleading the respondents as defendants. Simultaneously, the petitioner filed an application under Order 1 Rule 10 of the Code for being impleaded as a party in the suit for possession by way of partition filed by respondent No.1. Upon notice of the application, the respondents filed their reply. In the reply, it was pleaded that the preliminary decree was passed on 2.6.2008 which had become final. It was also averred that previously Ram Kumar and Ram Niwas both sons of Risal Singh had purchased plot underneath the building from Babu Ram vide registered sale deed dated 25.2.1971 and construction was raised on their respective portion over the said plots. The southern portion of the house was sold to Harish-the plaintiff for Rs.56,000/- by Ram Niwas son of Risal Singh. It was further submitted that plaintiff-Harish Kumar remained unsuccessful in a civil suit filed by him for permanent injunction, but the appellate court vide judgment and decree dated 15.6.2007 had granted liberty to him to seek possession of the property purchased by him from Ram Niwas by getting it partitioned in accordance with law. The suit for partition had been filed C.R. No. 7544 of 2011 -3- thereafter to seek possession against co-sharer, i.e. legal heir of Ram Kumar. The ownership or possession of the applicant-petitioner was specifically denied. The trial court vide order dated 16.11.2011 dismissed the said application for being impleaded as a party defendant in the suit for possession by way of partition. Hence, the present revision petition. 3. Learned counsel for the petitioner submitted that the applicant was a necessary and proper party as she was one of the co- owners in the property in dispute. He relying upon the decision of the Hon'ble Supreme Court reported in Ganduri Koteshwaramma and another v. Chakiri Yandadi and another, 2011(4) RCR (Civil) 916 submitted that the preliminary decree passed by the court in a civil suit can be altered or amended before passing of the final decree. In the present case, since the petitioner was a co-sharer, though was not a party at the time of passing of the preliminary decree, the same could be altered and share of the applicant determined. 4. I have heard the learned counsel for the petitioner and do not find any merit in the argument raised. 5. In the earlier suit filed by the plaintiff-respondent for permanent injunction and mandatory injunction, the trial court had dismissed the suit on 27.9.2006 against which Civil Appeal No. 95 of 2006 was filed. The said appeal was decided by the Additional District Judge, Sonepat on 15.6.2007. While upholding the dismissal of the suit, it was recorded that the joint property of Ram Kumar and Ram Niwas was purchased by them from Babu Ram in half share each on 25.2.1971 and the same was never partitioned. It was further observed C.R. No. 7544 of 2011 -4- that the property was never partitioned by metes and bounds by them and, therefore, Ram Niwas was never in exclusive possession of the disputed portion. Accordingly, a right was given to the plaintiff- respondent to seek possession of the portion purchased by him from Ram Niwas by getting the joint land partitioned in accordance with law. The applicant-petitioner was party in the appeal and the said finding had become final. Learned counsel for the petitioner was unable to demonstrate with reference to any material that either she is owner or in possession of the property in dispute. Thus, it could not be said that she is necessary and proper party to be impleaded in this suit. 6. Referring to the judgment of the Apex Court in Ganduri Koteshwaramma's case (supra) relied upon by the learned counsel for the petitioner, the same does not advance her case as that was a case where after passing of the preliminary decree, Hindu Succession (Amendment) Act, 2005 had come into force on the basis of which a right was claimed by a woman in the property and it was in that context that the Court observed that till the time the final decree was passed if in the interregnum i.e. after preliminary decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. However, in the present case, learned counsel was unable to show as to how the change has occurred in favour of the petitioner after passing of the preliminary decree and before the final decree. 7. Learned counsel for the petitioner could not successfully C.R. No. 7544 of 2011 -5- show that the applicant-petitioner had any right in the property in dispute. Accordingly, there is no merit in this revision petition and the same is hereby dismissed. December 19, 2011 (AJAY KUMAR MITTAL) gbs JUDGE