ORDER

Though this matter was listed for orders on admission, as the matter is pending since 2018, at the consent of learned counsel for the parties, the matter is heard finally.

In this petition preferred under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 04.09.2018 passed by learned 7th Additional District Judge, Jabalpur in Civil Suit No.71- A of 2015.

The facts of the case, in a nutshell, are that the respondents 10 to 12 who are the sons of the petitioner filed the suit in the year 2014 seeking the decree for partition and separate possession of the suit property claiming that the suit property is the joint family property. It belongs to Ramdulare - father of the defendant number 1 to 5. Ramdulare died on 07.11.1959. The petitioner (defendant No.3) supported the claim of the plaintiffs in his written statement. During pendency of the suit, the petitioner filed an application under Order 1 Rule 10 of the Code of Civil Procedure for his transposition as co-plaintiff on the ground that petitioner - defendant No.3 has supported the claim of the plaintiffs and he also pleaded that he is entitled to 1/5th share in the suit property. The plaintiffs did not oppose the aforesaid application preferred by the petitioner but respondents 1, 6 and 7 opposed the same. However, by the impugned order, the trial Court rejected the application holding that the petitioner has been already impleaded as defendant number 3 in the partition suit, and therefore, his transposition is not required.

I have heard learned counsel for the parties and perused the documents.

The plaintiffs/respondents 10 to 12 filed the suit for partition and separate possession of the suit properties i.e. agricultural land bearing survey number 108/3, area 3300 ssq. feet Marhotal, Jabalpur and House No.863, Sarafa Jabalpur. Simultaneously, the plaintiffs also claimed relief of declaration that the registered sale deed dated 02.11.2002 executed by Premnarayan and respondents 6 and 7 in favour of the respondent No.8 as null and void and not binding on the plaintiffs.

In paragraphs 7 and 7A of the plaint, it is averred that defendants 1,6 and 7

sold the disputed property of "green city" to the defendant No.8 which has been shown as 686 units in the written statement, therefore, there is no need for cancellation of the sale deed or any other proceeding in this regard. The plaintiffs claim their right over the remaining properties. Defendants 1,6 and 7 sold the land in favour of defendant No.8 vide registered sale deed dated 02.11.2022 illegally which was assailed on 06.01.2014. In paragraph 10 of the plaint it is claimed by the plaintiffs that no partition had taken place between the parties and the properties in question are joint hindu property.

In the written statement filed by the defendants 1,6 and 7 as well as the defendant No.8, it has been pleaded that a registered partition was effected on 29.11.1961 in between the parties. That time, the defendants 1 to 5 were minors. They attained majority in the year 1971-72 but thereafter they did not challenge the aforesaid partition even for a period of three years. They started living separately. It is also denied by them that the property in question is joint hindu property and defendants 1, 6 and 7 stated that after the partition, the properties in question are their self acquired property. Hence, the plaintiffs cannot claim further partition.

It is further urged that the present suit has been filed by the plaintiffs in collusion with their father (present petitioner and defendant No.3) with the intention to acquire right over the suit properties in which they have no right. It is claimed by the defendant No.8 that the plaintiffs have no share in the lands purchased by him vide registered sale deed dated 02.11.2002 executed by the defendants 1, 6 and 7. It is further averred that defendant No.3 who is the father of the plaintiffs has already filed a civil suit, namely, C.S.