IMPORTANT POINT
There is no legal embargo against addition of any new party after a preliminary decree in suit for partition has been passed because suit for partition is disposed of only when final decree is passed.

JUDGMENT (CAV)

Bhargav D. Karia, J.—Heard learned advocate Mr. Chaitanya Joshi for the petitioners and learned Senior Advocate Mr. Jal Unwala assisted by learned advocate Ms. Tejal Vashi for the respondents through video conference.

2. By this petition under Article 227 of the Constitution of India, the petitioners have challenged the order dated 3.10.2016 passed by the learned 3rd Additional Senior Civil Judge, Valsad passed below Exh.97 in Regular Civil Suit No. 161 of 2006 whereby the application of the petitioners for impleadment as defendants in the Regular Civil Suit No. 161 of 2006 is rejected.

3. Factual matrix of the case are as under :

4.One Ratanji Bhana Marfatiya was owner of land bearing Survey Nos.240 Part, 239, 241/1, 240/2 Part and 241/2 situated at Nankawada, Taluka and District Valsad having Khata No. 226 (here-in-after referred to as “the suit property”). After the demise of Ratanji Bhana Marfatiya on 5.1.1957, the suit property was of the ownership of his wife Maniben. Revenue entry no. 1198 was mutated in favour of Maniben on 22.2.1957 in respect of the suit property. Maniben expired on 30.5.1967 survived by her legal heirs comprising of three sons Bhikhubhai, Babubhai and Dineshbhai and five daughters Bhikhiben, Kamuben, Gajraben, Ramanben and Urmilaben.

5. Respondent no.1-Babubhai Ratanji Marfatiya filed Special Civil Suit No.35/1989 for partition of the suit property amongst three brothers only in the Court of Senior Civil Judge, Valsad.

6. The Senior Civil Judge, Valsad passed the judgment and decree dated 28.2.1995 declaring that respondent no.1 has 1/3rd share in the suit property and is entitled to get the possession of his 1/3rd share and is also entitled to get mesne profit from the defendants from the date of suit till the delivery of possession and the Court Commissioner was appointed to make partition as per Order XXII Rule 12(c) of the Code of Civil Procedure, 1908 (For short “the Code”) to make partition of immovable properties other than agricultural land.

7. Thereafter, preliminary decree was drawn and subsequently, the suit was converted to Regular Civil Suit No.161/2006 as the final decree was not passed. The petitioners therefore, filed an application Exh.80 in Regular Civil Suit No.161/2006 stating that the sisters of respondent no.1 and daughters of late Ratanji Bhana Marfatiya had 1/8th share in the property of their deceased father and accordingly prayed that five daughters of late Ratanji Bhana and their heirs be joined as parties defendants in the suit under Order I Rule 10 of the Code. The Senior Civil Judge, Valsad, however, by order dated 26.4.2011 rejected the application Exh.80 for joining party in the Regular Civil Suit No. 161/2006.

8. It appears that prior to initiation of the aforesaid proceedings for joining parties, petitioner no.1 being legal heir and son of Kamuben-daughter of late Ratanji Bhana as Kamuben also expired on 8.6.2004, preferred Special Civil Suit No.26/2009 before the Court of Principal Senior Civil Judge, Valsad with a prayer to declare that five daughters of deceased Ratanji Bhana has 1/8th share in the suit property and judgment and decree dated 28.2.1995 passed in Special Civil Suit No. 35/1989 by the Senior Civil Judge, Valsad is not binding upon the five daughters of late Ratanji Bhana and their heirs. Special Civil Suit No.26/2009 is pending for adjudication before the Court of Senior Civil Judge, Valsad.

9. The petitioners being aggrieved by order dated 26.4.2011 passed below application Exh.80 in Regular Civil Suit No. 161/2006 preferred an appeal before the Additional District Judge, Valsad being Civil Misc. Appeal No.15/2011 which came to be allowed vide order dated 20.10.2014. Respondent no.1 therefore, preferred Special Civil Application No.1235/2015 challenging the said order whereby the petitioners were permitted to be joined as defendants in Regular Civil Suit No. 161/2006. This Court (Coram : Hon’ble Ms. Justice Harsha Devani, as her Lady