Rajesh H. Shukla, J.

1. The present Civil Application is filed by the applicants-third party to be pleaded as party respondents in main matter being First Appeal No. 1313 of 1985 on the grounds stated in the application inter alia that the applicants have stepped in the shoes of the original respondent Nos. 10 to 21 and, therefore, they have right title interest in the suit property and are therefore interested in the outcome of the Appeal, which would directly affect their interest.

2. The background of the facts is that the aforesaid First Appeal No. 1313/1985 with Civil Application No. 2350/1991 came to be preferred by the original appellants-respondent Nos. 1 to 9 for the prayer to restrain the original respondents in the First Appeal from selling and alienating the suit property pending First Appeal. Reliance is placed on the order of the Hon'ble Division Bench of the High Court (Comam: B.S. Kapadia & K.J. Vaidya, JJ.) dated 27.09.1991, where Civil Application was partly allowed filed by the original appellants restraining the present respondent Nos. 20 to 27 from alienating or transferring their share in the suit property observing that as per the judgment of the trial court, the respondent Nos. 20 to 27 have been held to be having no share in the suit property. However, the prayer of the appellant in the aforesaid Civil Application No. 2350/1991 to restrain the present respondent Nos. 10 to 21 from selling or alienating the share in the suit property was not granted and specific order was passed that the respondent Nos. 10 to 21 shall be at liberty to sell their respective share in the suit property without transferring actual possession in the suit property and it would be subject to the outcome of the main First Appeal. Therefore in background of these facts, the permission was granted to the respondent Nos. 10 to 21 for alienating their share consisting 91.66% in the suit property in favour of the applicants herein by way of registered sale deed dated 05.02.2008 produced at Annexure-B of this application and, therefore, claim has been made to implead as party.

3. Affidavit-in-rely has been filed on behalf of the respondent Nos. 1 to 9 contending inter alia that the applicants have no locus standi to file such application for joining party as they are neither necessary nor proper party as required under Order 1, Rule 10(2) of the Civil Procedure Code. It has been contended that aforesaid First Appeal No. 1313/1985 has been filed challenging the judgment and decree in Special Civil Suit No. 54/1974 by the respondents and decree has been challenged on the ground that there cannot be partial partition of the property specifically contending that the applicants, who are third party, are not the family members of any of the branch of late Shri Vallabhdas Kanji nor they are the partners of partnership firm of Vallabhdas Kanji & Co. Therefore it is contended that the applicants, who are third party, have no right title interest in the suit property and they do not satisfy the test of necessary and proper party. Reference is made to the background of the facts and also the judgment of the Hon'ble Apex Court in case of Dhurandhar Prasad Singh Vs. Jai Prakash University, reported in (2001) 6 SCC 534. It is also contended that the applicants are obliged to file suit for partition which they have not done and they cannot by-pass the obligation under the Partition Act. It is also contended that third party has no right title interest to seek possession of the property, which is dwelling house belonging to undivided family and any such transfer of property shall be deemed to be void under Section 52 of the Transfer of Property Act, 1882. It is further contended that sale deed executed between the respondent Nos. 10 to 21 of the First Appeal No. 1313/1985 and the present applicant is again subject matter of challenge in the Civil Court, Jamnagar in Special Civil Suit No. 33/2008. It is therefore submitted that the impleadment