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2018 Supreme(HP) 965
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mr. Vivek Singh Thakur, J.
Raja Ashok Pal Sen - Appellant
Versus
Smt. Raj Kumari Indira Mahindra - Respondent
OMPs No. 24 & 217 of 2015 in Civil Suit No. 4 of 2007
Decided On : 03-01-2018
Mr. Ajay Kumar, Senior Advocate, with Mr. Dheeraj K. Vashisth, Advocate, for the Plaintiff; Ms. Seema K. Guleria, Advocate, for the Defendants No. 1 and 2; Mr. Rakesh Dogra, Advocate, for the Defendants No. 3; Mr. G.R. Palsra, Advocate, for the Defendants No. 4 and 9 to 11 and for Appellant in OMP No. 217 of 2015; Mr. Surinder Saklani, Advocate, for the Defendants No. 5 to 8; Ms. Bhavna Dutta & Mr. Sandeep Dutta, Advocates, for the Appellants in OMP No. 24 of 2015
Headnote:
Impleadment - Civil Suit - Order 1 Rule 10 CPC, Order 22 Rule 10 CPC, Sections 52 and 54 of the Transfer of Property Act
Fact of the Case:
The plaintiff filed a suit seeking a declaration of ownership of a property, alleging that the defendant had relinquished her share in the property in favor of the plaintiff. The defendant contested the claim, stating that her signatures were obtained under false pretenses. Two applications were filed by third parties seeking impleadment as defendants based on agreements to sell executed during the pendency of the suit.
Finding of the Court:
The court dismissed the applications for impleadment, stating that the applicants were not necessary parties to the suit and their impleadment would hamper the proceedings. The court emphasized that the applicants' status did not warrant invoking Order 22 Rule 10 CPC for their inclusion as defendants.
Issues: The main issue was whether the third parties seeking impleadment as defendants based on agreements to sell during the pendency of the suit were necessary parties to the suit.
Ratio Decidendi: The court held that the applicants were not entitled to contest the claim as codefendants in the present suit, as their impleadment would cause unnecessary delay and hamper the proceedings. The court emphasized that the applicants' status did not warrant their inclusion as defendants.
Final Decision: Both applications for impleadment were dismissed by the court.
JUDGMENT
Vivek Singh Thakur, J. - During pendency of the present suit filed by the plaintiff seeking decree of declaration in his favour, two applications being OMPs No. 24 and 217 of 2015 have been filed wherein applicants are claiming their entitlement for impleading them as defendants in the suit for entering into two different agreements to sell executed by defendants No. 1 and 9 in favour of applicant(s) in OMPs No. 24 and 217 of 2015, respectively.
2. Both these applications are being disposed of by this common order as common question of facts and law is involved in these applications.
3. In order to determine both these applications, it is necessary to give a brief resume of the case herein.
4. In the present suit, plaintiff and defendant No. 1 are real brother and sister, defendant No. 2 is son of defendant No. 1 and defendant No. 3 was Special Power of Attorney of defendant No. 1, who has executed sale deeds of the suit property in favour of defendants No. 4 to 11.
5. Plaintiff has filed this suit claiming that defendant No. 1 had relinquished her share in the suit property, inherited by her after the death of their parents, in favour of the plaintiff and the said relinquishment was in lieu of surrender of ownership right by the plaintiff in favour of defendant No. 2 (son of defendant No. 1) in the property situated at Panji, Goa, pursuant to deed of family settlement executed on 10th November, 2000, and, thus, seeking declaration to the effect that plaintiff is absolute owner of the suit property and that cancellation of mutation No. 146, dated 18th August, 2000, vide order, dated 31st August, 2005, wherein relinquishment of share in favour of plaintiff by defendant No. 1 was attested, is illegal and wrong and that sales/transfers made in favour of defendants No. 4 to 11 with respect to the suit property are illegal, null and void and not binding on the plaintiff. He has also sought decree for preemption of the suit property.
6. Earlier, joint written statement was filed on behalf of defendants No. 1 and 3 on the affidavit of defendant No. 3 claiming that defendant No. 1 was within her rights to dispose of the property falling in her share in accordance with law. However, in the meanwhile, plaintiff was permitted to amend the plaint and amended plaint was filed on 14th June, 2008, whereafter defendant No. 1 filed a separate written statement disowning the sales/transfers made by defendant No. 3 in favour of defendants No. 4 to 11, claiming that she, i. e. defendant No. 1, appeared to have been defrauded by the plaintiff on account of the fact that her signatures seem to have been obtained on certain documents on account of her blind faith and confidence in the plaintiff being her elder brother and also that defendant No. 3 was appointed as General Power of Attorney by her on persuasion of plaintiff as she was unable to visit the suit property frequently due to medical reasons and defendant No. 3 was confident and consequentially well known to the plaintiff and late wife of plaintiff, Mrs. Kiran Kumari.
However, selling of part of property of defendant No. 3 has been admitted but it is claimed that sale deed, dated 24th April, 2008 was executed by defendant No 3 by concealing the material facts as she (defendant No. 1) never intended to sell the heritage temple and the said sale deed was executed without her knowledge and after knowing about the said sale deed through newspapers, she immediately objected it with revenue authorities and froze and rendered her General Power of Attorney inoperative, which was executed by her in favour of defendant No. 3 and cancelled the said General Power of Attorney in accordance with law as defendant No. 3 had not only misused the General Power of Attorney but had also caused irreparable loss to her by selling the property never intended to be sold by her. Further that she has not received any consideration for the said sale deed.
7. Omp No. 24 of 2015 has been filed under Order 1 Rul
