Impleadment of a person with vested rights in ancestral property as a necessary party under Order 1 Rule 10 CPC.

JUDGMENT

Sameer Jain, J. - The present writ petition has been filed under article 227 of the Constitution of India being aggrieved of the order dated 31.05.2016 passed by learned additional District Judge, Jhalawar in Civil Suit No.8/2015 whereby, the application filed by applicant-petitioner Mohd. Mansoor alam under Order 1 Rule 10 (2) of CPC was allowed.

2. The brief facts of the case are that the plaintiff-petitioner Mohd. anwar alam along with three sisters had filed a suit for partition and permanent injunction against Mohd. aktar alam. It is important to mention that on 02.08.2014, Mohd. aktar alam died and his widow and legal heirs i.e. sons and daughters were brought on record. Plaintiff Nos.1-4 and defendant No.1 are real brothers and sisters whose father Mohd. Maqbool alam died in the year 2004 and their mother died in the year 1993. The properties in dispute are immovable property and agricultural land.

3. On 12.03.2014, a suit for partition was filed in between plaintiffs and defendants referred above. During the pendency of the suit, plaintiffs and defendants arrived at compromise on 11.11.2014 under Section 89 of C.P.C. and the same was attested by the learned Trial Court. It is also important to mention that prior to entering into compromise, one application for impleadment was filed by the applicant respondent No.4- Mohd. Mansoor alam on the ground that admittedly the subject matter of the suit is ancestral property upon which, the present suit for partition cannot be entered into as the applicant is also having vested right in the property. Secondly, he submitted that since the subject matter of suit is an ancestral property, entering of Hibanama/ gift-deed in the year 1953 by Shri Wazir Mohd., grandfather of petitioner was a nullity.

4. The contention of the petitioners is that the father of applicant Shri Wazir Mohd. during his lifetime by way of registered Hibanama/gift-deed had gifted the property to late Mohd. Maqbool alam, father of plaintiffs and defendants.

5. The contention of learned counsel for the petitioners is that learned Trial Court has erred in allowing the impleadment application as he is a stranger/ outsider to the suit and he is indirectly challenging the bonafides of registered gift-deed/ hibanama. after almost five decades, he cannot file a suit to challenge the same as it is barred by law of limitation. They further submitted that in Mohammedan law the concept of joint family and ancestral property does not exist.

6. In support of their contentions, they relied upon the judgments of apex Court in Mumbai International airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited and Others, (2010) 7 SCC 417, ajambi (Dead) by Legal Representative vs. Roshanbi and Ors., (2017) 11 SCC 544 and Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay & Ors. (1992) 2 SCC 524.

7. In Mumbai International airport Private Ltd. (supra), it was held that:-

'15. a 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed. a 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.'

8. In ajambi (supra), it was held that:-

'11. It is true that there is no concept of joint family in Muslims but it was open to late Sh