R.D. Kothari, J.

1. The present petition is filed challenging the order passed below Exh. 36 in Regular civil Suit No. 865 of 2010 by 12th Additional Senior Civil Judge & Additional C.J.M., Vadodara on 18.02.2013. By the said order, the learned Judge was pleased to allow the respondent No. 5's application to join him as a party. Heard the learned Advocate Mr. P.R. Thakkar for the petitioner, Mr. Jitendra Malkhan, learned Advocate for respondent No. 5 and Mr. S.P. Majmudar, learned Advocate for the respondent No. 1 to 4.

2. The brief relevant facts are thus; one Savitaben had purchased the suit land by executing a registered sale deed on 28.05.1980. She had executed a Will in favour of the present petitioner on 20.03.1990. She passed away on 13.05.1990. Pursuant to the Will made in favour of the petitioner, the petitioner's names were mutated in revenue record after issuing of notice to the LRs of deceased Savitaben. Thereafter, the present petitioner had sold the suit land on 21.01.2010 to one Rashmikant Jayashankar Bhatt and Chaital Rashmikant Bhatt by executing a registered sale deed. Name of the purchasers were mutated in the revenue record. LRs of deceased Savitaben had instituted a Regular Civil Suit No. 865 of 2010 against the present petitioner, wherein LRs of deceased Savitaben had inter alia contended that deceased Savitaben had no right to make Will as the property in question is ancestral property. In written submissions filed by the present petitioner in the said suit, petitioner had declared that the suit land is already sold by the present petitioner. During the pendency of the suit, the purchaser of the suit land had obtained the N.A. permission from the Collector. Thereafter the respondent No. 5 had instituted a suit i.e. Special Civil Suit No. 758 of 2010 against the LRs of deceased Savitaben and against present petitioner on the ground that deceased Savitaben had executed an agreement to sell in favour of respondent No. 5. Pursuant to that agreement to sell, respondent No. 5 had instituted a suit for specific performance. Thereafter on 02.03.2012, parties in Regular Civil Suit No. 865 of 2010 have filed a compromise pursis in the said suit. Thereafter, on 23.03.2012, respondent No. 5 had filed an application in Regular Civil Suit No. 865 of 2010 to implead him as a party. It is say of respondent No. 5 that he is interested party. The said application was allowed by the Court, hence, the present petition.

3. Learned Advocate Mr. Thakkar, for the petitioner at the time of hearing submitted that the Court had already accepted the compromise and only consequential order was required to be passed below Exh. 1. That in that circumstances, the Court has no power to allow the application filed by respondent No. 5. It was submitted that Court has become functus officio. It was also submitted that considering the nature of the suit i.e. Regular Civil Suit No. 865 of 2010, respondent No. 5 cannot be said to be necessary or proper party. In support of this, learned Advocate Mr. Thakkar has drawn attention to pleading in both the suits particularly cause of action and prayer of the plaintiff in both the suits. Thereafter, referring the order under challenge, it was submitted that learned trial Court has committed serious error of law in allowing the present application.

4. On the other hand, learned Advocate Mr. Malkan, appearing for respondent No. 5 has pointed out that present petitioner is not related in any manner to deceased Savitaben. It was submitted that petitioner has acquired the interest through Will, however the land was agricultural land at the relevant time and the petitioner was not agriculturist. Acquiring the interest by the petitioner and particularly validity of such alleged interest in the circumstances of the case, it was submitted, is not beyond the area of doubt. That petitioner in such circumstances cannot acquire valid and effective right. Learned Advocate Mr. Malkan also drawn attention to re