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ALLAHABAD HIGH COURT
Anil Kumar, J.
Bhavya Dwellings Pvt. Ltd., Lucknow -Appellant
Versus
Gopal Narain Chaubey and others -Respondent
Civil Revision No. 79 of 2007
Decided On : 12-02-2014
Revision - Suit for Partition - Impleadment of Revisionist as Defendant - Transfer of Property Act, 1882, Section 52 - Civil Procedure Code, 1908, Order I, Rule 10(2), Order XXII, Rule 10 - Hindu Succession Act, 1956, Section 22 - Lis Pendens - Necessary and Proper Party - Court's Discretion.
Fact of the Case:
Revisionist, M/S. Bhavya Dwellings Pvt. Ltd. Lucknow, purchased shares of some co-sharers of the property in dispute, which was the subject matter of a partition suit (Suit No. 94 of 1998). The revisionist filed an application under Order I, Rule 10 read with Order XXII, Rule 10, C.P.C. to be impleaded as a defendant in the suit. The application was rejected by the trial court. The revisionist challenged the order by filing a revision petition.
Finding of the Court:
The court held that the revisionist was a necessary and proper party to the suit and should have been impleaded as a defendant. The court observed that the revisionist had purchased the shares of some of the co-sharers of the property in question and, as such, had acquired the rights of the transferors to joint possession or other common or part enjoyment of the property, subject to the conditions and liabilities affecting the share or interest so transferred. The court further held that the revisionist was entitled to come on record in order to work out the equity in their favor in the final decree proceedings.
Issues: 1. Whether the revisionist was a necessary and proper party to the partition suit? 2. Whether the trial court erred in rejecting the revisionist's application for impleadment?
Ratio Decidendi: 1. The court held that the revisionist was a necessary and proper party to the partition suit because they had purchased the shares of some of the co-sharers of the property in question and, as such, had acquired the rights of the transferors to joint possession or other common or part enjoyment of the property, subject to the conditions and liabilities affecting the share or interest so transferred. 2. The court held that the trial court erred in rejecting the revisionist's application for impleadment because the revisionist was entitled to come on record in order to work out the equity in their favor in the final decree proceedings.
Final Decision: The court allowed the revision petition, set aside the impugned order, and directed the trial court to implead the revisionist as a defendant in Suit No. 94 of 1998.
Head Sri Birjesh Kumar Saxena, learned Counsel for revisionist, Sri Prashant Singh Atal, learned Counsel appearing on behalf of O.P. No. 1 as well as Sri Subhash Vidyarthi, learned Counsel appearing on behalf of O.P. No. 2 and perused the record.
2. By means of the present revision under section 151, C.P.C., the revisionist has challenged the order dated 16.1.2007 passed in Regular Suit No. 94 of 1998 (Gopal Narain Chaube and others v. Krishna Narain Chaube and others) by Civil Judge (Sr. Div.), Malihabad, Lucknow rejecting the application of the revisionist under Order I, Rule 10 read with Order XXII, Rule 10, C.P.C.
3. Undisputed facts of the present case are that one Babu Laxmi Narain Chaube s/o Pt. Parmand Chaube was the original owner and landlord of plot No. 403/3 and building constructed thereon bearing Municipal No. 510/215 situated at New Hyderabad (Trans-Gomti), New Civil Lines, P.S. Hasanganj, (now P.S. Mahanagar), Lucknow (hereinafter referred to as the property in dispute) which is bounded as under:
East - House of Mr. B.N. Singh
West - Road
North- Balda
South- House of Dr. A.C. Chatterji
Sri Laxmi Narain Chaube died on 14.10.1952 leaving behind two sons, namely, Sri Brij Narain Chaube and Sri Pratap Narain Chaube who succeeded the entire estate of Sri Laxmi Narain Chaube jointly with equal share therein. Sri Brij Narain Chaube and Sri Pratap Narain Chaube mutually settled a scheme of partition with terms and conditions stated in the Partition Deed, dated 20.7.1970 executed between the parties i.e., Sri Brij Narain Chaube and Sri Pratap Narain Chaube.
4. Sri Brij Narain Chaube, died in the year 1971 leaving behind three sons, namely, Jagdish Narain Chaube, Sri Bhagwant Narain Chaube and Mahesh Narain Chaube and one daughter Smt. Nand Rani Chaturvedi.
5. Sri Bhagwant Narain Chaube died in the year 1983, leaving behind Smt. Anamika Chaube, Sri Baldeo Narain Chaube and Sri Deo Narain Chaube as his legal heirs and successors.
6. Lastly, in respect to the property in dispute, Sri Gopal Narain Chaube, one of the co-sharer, on 31.3.1998 filed as suit, registered as Regular Suit No. 94 of 1998, pending in the Court of Civil Judge (Sr. Div.), Malihabad, Lucknow for partition of his share in the property in dispute.
7. Further, during the pendency of the said suit some of the co-sharer of the property in dispute by means of the registered sale-deed dated 3.1.2006, 4.2.2006, 29.12.2005, 23.12.2005 sold their shares in favour of M/S. Bhavya Dwellings Pvt. Ltd. Lucknow/revisionist. So, on 30.5.2006 an application under Order I, Rule 10, C.P.C. read with Order XXII, Rule 10, C.P.C. has been moved by revisionist to be impleaded as a defendant in the suit (Suit No. 94 of 1998) registered as paper No. A-3, after hearing learned Counsel for parties by impugned order dated 16.1.2007, the Court below has rejected the same.
8. Aggrieved by the said order, the present revision has been filed before this Court.
9. Sri B.K. Saxena, learned Counsel for revisionist while challenging the impugned order submits that as the revisionist has purchased the share of some of the co-owners of the property in question dispute for partition in Regular Suit No. 94 of 1998, so as per provisions of Order I, Rule 10, C.P.C. read with Order XXII, Rule 10, C.P.C. as well as section 44 of the Transfer of Property Act which reads: “Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the fa
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