Indore, Dated 20.02.2024 Mr. Sandeep Kochatta, counsel for the appellant.

Mr. Rajeev Bhatjiwale, counsel for the respondent.

This appeal has been filed under section 96 of the Code of Civil Procedure, 1908.

Counsel for the proposed respondent has filed an application IA No.5426 of 2023 under Order 1 Rule 10(2) of Code of Civil Procedure, 1908 and has submitted that the present suit has been filed by the appellant/plaintiff against the defendants No.1 to 4 for declaration of title and permanent injunction in respect of suit land measuring area 0.411 hectare of survey no.260, 0.801 hectare of survey no.261, area 2.347 hectare of survey no.262 and area 0.995 hectare of survey no.263 situated in Patwari Halka No.old 32 new 79 village Kazi Palasia Tehsil and District – Indore (MP).

(2) The appellant/plaintiff has alleged that the suit land was jointly succeeded by the plaintiff Shaikh Abdul Razzak and his brother Shaikh Ismail defendant No.1 from their father Shaikh Ahmed. It is alleged in the plaint that defendant No.1 Shaikh Ismail had sold the suit land to the defendant No.2 and 3 by registered sale deed dated 04.09.2006 whereas the defendant No.1 had no title to sell it since it was a still a joint property and the partition proceeding was pending before the Tehsildar, Indore. It was also urged at that particular time the suit land was mortgaged with the defendant No.4 Abdul Sattar and therefore no possession was handed over to the defendant No.2 and 3 and the suit was contested by the defendants alone and has pleaded that partition between the two brothers have already taken place.

(3) The trial court vide impugned judgment and decree dated 06.02.2008 has dismissed the suit filed by the appellant/plaintiff and has recorded the finding that the suit land was already partitioned before execution of the sale deed and therefore the title of the defendants No.2 and 3 was perfect and the present appeal has been filed by the plaintiff Shaikh Abdul Razzak. The defendants No.2 and 3 has sold the suit land by registered sale deed executed in favour of Prahlad Garg, Sanjay Bakda, Rajesh Garg and Jyoti Shrimal and Sunil Shrimal and also handed over the possession of respective land to the purchasers. That, after purchasing of the said land, the applicant had filed the application for mutation before the Tehsildar and the name of appellant was recorded in the revenue record vide order dated 11.07.2011 and 09.08.2011 and 22.07.2017. The Bhu-

Adhikar Avam Rhin Pustika was also issued to the appellant in respect of suit land. That the appellant was not aware of the pendency of any proceeding relating the suit land before this court or any other court, till an objection was filed by Mohd. Siddiqui S/o Shaikh Razzak before the learned SDO Indore in Revenue Case No.6A/2022-23. The present appellant has filed the said objection for correction of revenue entry. That it is for the first time the aforesaid proceeding and the pendency of litigation before the Hon'ble Court in First Appeal No.271 of 2008 and Second Appeal No.64 of 2023 came to be known to the present appellant. Since the appellant is the bonafide purchaser of the suit land from the registered owners.

(4) The appellant opposes the application and has filed written reply and has submitted that the proposed respondent is not aware of the pendency of this appeal and hence no need to implead the proposed respondent as necessary party in the matter.

(5) In the case of Kirpal Kaur vs. Jitender Pal Singh and Others reported in 2016(2) MPLJ 93. Para 19 and 20 is relevant which is as under:-

19. Likewise, where the interest of the second defendant has devolved upon the suit schedule ‘B’ property on the basis of the alleged gift deed referred to supra, the suit may be continued against such second defendant and for the sake of continuance of the suit against the persons upon whom such interest has devolved during the pendency of the suit, leave of the court has to be obtained. Leave can be obtained on