IMPORTANT POINT
Appellant shall forthwith remove the existing wall/jalli obstructing easement rights of respondents 1 to 6. But respondents 1 to 6 will not use any other portion of open space e.g. lawn in front of Annexe. Only one car parking will be allowed. Dogs will be confined in the house or in an enclosure as directed. Orders of High Court modified. Appeals disposed of accordingly.

Headnote:(i) Civil Procedure Code, 1908-Order 22 Rule 10-Cases of assignment, creation and devolution of interest during the pendency of a suit-Rival claims by two on the basis of separate Wills of one Smt. Rajeshwari Devi-The one (Lt. Dina Nath Ahluwalia substituted by Respondents 1 to 6 after his death) claiming under a later Will dated 28.8.84 filing suit for declaration-Pending suit, filing application for injunction-Court asked to maintain status quo to both the parties-The second party Respondents 7 to 9 pending suit and injunction sold property inherited under earlier Will dated 23.5.1982 to Jagkirat Datwani (Appellant) specifically subject to pending suit and the status quo order-Whether appellant is bound by the decree to be passed in the pending suit though not a party to it? (Yes).
       Held : Thus it is to be seen that the Appellant was aware of the pendency of the suit and the status quo order. As per this conveyance deed the Appellant has not yet become owner of the disputed portion i.e. the annexe. This may be the reason why the Appellant made no application to be impleaded as a party to the suit. (Para 4)
       It has been held by this Court in the case of Dhurandhar Prasad Singh v. Jai Prakash University and Ors., reported in JT 2001(5) SC 578, that Order 22, Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit. It is held that the trial of a suit cannot be brought to an end because the interest of a party in the subject matter of suit is devolved upon another during its pendency. It is held that such a suit may be continued with the leave of the Court by or against the person upon whom such interest has devolved. But, if no such step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by the decree. Thus the Appellant would continue to be bound by the decree or order which has been passed in the suit, particularly when she had knowledge of the proceedings. (Para 5)
       (ii) Suit for declaration and injunction-Declaration sought on the basis of a Will-Temporary injunction finally disposed of granting injunction not to dispossess Dina Nath Ahluwalia who is in settled possession of the Annexe except by due process of law subject to final decision in suit whether the Will dated 28-8-1984 was genuine or not-However, court held that Lt. Dina Nath Ahluwalia was not entitled to any injunction restraining respondents 7 to 9 from dispossessing him from open space in front of and adjacent to Annexe-No appeal by appellant or respondents 7 to 9-Dina Nath only challenged in High Court order as to open space in front of and adjacant to Annexe-Died during appeal-Respondents 1 to 6 brought on record as his heirs-Complaint in appeal, by respondents 1 to 6 that respondents 7 to 9 have constructed a wall/jalli obstructing their entry and easement of light and air and regarding ferocious dogs of appellant-Local Commissioner appointed by High Court-Commissioner found complaint correct-High Court directed removal of wall/jalli and providing passage for entry of respondents 1 to 6 to Annexe-Review dismissed-Two appeals against order and dismissal of review by appellant to Supreme Court-Whether orders of High Court need modification? (Yes)-Appeals disposed accordingly.
       Held : In our view, Mr. Mishra is right. If a wall is constructed as directed then the Appellant s access to the garage and the servant quarters gets completely blocked. At the same time, pending the final hearing of the suit, Respondents 1 to 6 cannot be dispossessed from the annexe. They must also be given access to the annexe building through the main gate of the property. In our view the walls/jallis constructed around the annexe (at points A to C and B to Gate D) block light and air and prevent ingress and egress to the annexe. The right to use the annexe necessarily means that there must be reasonable space, say 5 feet, available all around the annexe. We, therefore direct that the Appellant and Respondents 7 to 9 shall permit access to the Respondents 1 to 6 and/or their guest through the main gate of the property. The Appellant shall forthwith remove the existing wall/jallis at points A to C and B to Gate D on the plan annexed to the Order. The Gate D shall also be removed. The Appellant shall ensure that Respondents 1 to 6 have a space of at least 5 ft. all around the annexe. That access should be such that it would provide access to the water coolers and to the gate marked "N". The Appellant and Respondents 7 to 9 shall not put up any gate or wall or Jalli within the said passage and not prevent light or air to the annexe by planting any trees or in any other manner. It is, however, clarified that apart from the use of the said passage Respondents 1 to 6 shall not be entitled to use any further or other areas. Thus Respondents 1 to 6 shall not use the lawn in front of the annexe. Respondents 1 to 6 would be permitted to park one car inside the compound next to the annexe. However, cars of the guests will have to be parked outside. We also clarify that it will be responsibility of the Appellant to ensure that the dogs kept by her do not attack Respondents 1 to 6 or any of their guests or family members. For that purpose the Appellant may put up an enclosure as indicated in red (at points A, E and F) on the plan annexed to this Judgment. The dogs must then be confined to the house and/or in that enclosure. The orders under challenge are accordingly modified. The trial Court shall dispose of the suit in accordance with law uninfluenced by any observation or direction made in this Judgment. With the above directions, these Appeals stand disposed of with no order as to costs.
        (Paras 12 to 15)

JUDGMENT

S.N. Variava, J.-1. Leave granted.

2. Heard parties.

3. Briefly stated the facts are as follows:

One Lt. Dina Nath Ahluwalia filed Suit No. 2248 of 1985, against Respondents 7 to 9 (herein). In the suit the said Lt. Dina Nath Ahluwalia claimed that he has become the absolute owner of the Annexe Building on land measuring 163 Sq. Metres in No. 6, Friends Colony (West), New Delhi together with easementary rights and passages. The claim to ownership was based on a Will dated 28th August, 1984 executed by the then owner of the property one Rajeshwari Devi. Respondents 7 to 9 claimed to have inherited this property through the same Smt. Rajeshwari Devi but by a Will dated 23rd May, 1982.

4. An interim application seeking an injunction against Respondents 7 to 9 restraining them from transferring or alienating the annexe in question was also filed. Initially, an order of status quo came to be passed. Pending this application (and the suit) Respondents 7 to 9 sold this property to the Appellant (herein) by a Conveyance dated 25th September, 1986. The said Conveyance, inter alia, provides as follows:

"(E) The said entire property at present suffers from the following encumbrances :-

(i) portion shaded in red on the annexed plan B is the subject matter of Suit No. 2348/85 in the Delhi High Court filed by one Shri Dina Nath Ahluwalia against the Vendors whereby Shri Dina Nath Ahluwalia has raised disputes of title to and possession of the construction (annexe) and to the appurtenant land comprised within the said shaded area (red) under and by virtue of a purported Will of Smt. Rajeshwari Devi purporting to Rajeshwari Devi purporting to bequeath the construction comprised within the shaded portion and the land underneath the said portion to the said Shri Dina Nath Ahluwalia. By orders dated 13.12.85 the Hon ble High Court has restrained the Vendors from alienating or transferring the said construction (annexe) and has order status quo regarding possession of Shri Dina Nath Ahluwalia therein as well as in the portion of land comprised within the said shaded area.

xxx xxx xxx

(F) The Vendors had in terms of Agreement for Sale dated 1st September, 1986 agreed to sell and the purchasers had agreed to purchase from the Vendors the said entire property inclusive of the encumbrances described in (E) above on the terms and conditions stated therein with the clear understanding that without in any manner limiting the Vendors obligation to transfer the said entire property to the purchasers, in view of the encumbrances detailed in (E) above, the Vendors shall fulfil their said obligation in two stages i.e. by transferring in the first instance all that portions of the said entire property which is not covered by the encumbrances enumerated in paragraphs E(i) and (ii) and in the second instance by the Vendors transferring by a conveyance, relinquishment deed or otherwise the portions in the said entire property presently covered by the encumbrances enumerated in paragraph E(i) and (ii) above after and if and as soon as the Vendors are legally competent to transfer the said portions, although the balance of the agreed consideration of Rs. 79,00,000/- (Rupees seventy nine lakhs only) for the said entire property (excluding stamp duty and expenses in connection with the transfer which are to be borne by the Purchasers) after reducing the sum of Rs. 2,40,000/- (Rupees two lakhs forty thousand only) already paid i.e. Rs. 76,60,000/- (Rupees seventy six lakhs sixty thousand only) shall be paid by the Purchaser to the Vendors at the time of registration of this Conveyance for the demised premises."

Thus it is to be seen that the Appellant was aware of the pendency of the suit and the status quo order. As per this conveyance deed the Appellant has not yet become owner of the disputed portion i.e. the annexe. This may be the reason why the Appellant made no application to be

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2002 Supreme(SC) 615

Cases Referred (1)