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PETITIONER:

SARVINDER SINGH

Vs.

RESPONDENT:

DALIP SINGH & ORS.

DATE OF JUDGMENT: 02/08/1996

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

G.B. PATTANAIK (J)

CITATION:

1996 SCALE (6)59

ACT:

HEADNOTE:

JUDGMENT:

THE 2ND DAY OF AUGUST, 1996

Present:

Hon’ble Mr.Justice K.Ramaswamy

Hon’ble Mr.Justice G.B.Pattanaik

R.K.Kapoor, P.Verma, S.K.Srivastava B.R.Kapoor and

S.C.Patel, Advs. for the appellant

Mrs. Rekha Palli, Adv. for the Respondents.

O R D E R

Sarvinder Singh

V.

Dalip Singh & Ors.

O R D E R

Leave granted.

We have heard learned counsel on both sides.

The admitted facts are that the appellant filed suit

Case No. 253-1 before the Sub-Judge, Ferozepur for

declaration that he is the owner of the property on the

basis of a registered Will dated May 26, 1952 executed by

his mother Smt. Hira Devi and that a declaration to that

effect was already given by the civil Court in another

decree dated March 29, 1974. He filed an application under

Order 39, Rule 11 CPC for ad interim injunction to restrain

the defendants from interfering with his possession and

enjoyment of the plaint schedule property situated in

village Dabbla Kalan Tehsil Fazilka. The interim injunction

was granted on June 14, 1991 which subsequently came to be

vacated on December 2, 1991. It would appear that the

defendants alienated the self-same lands by registered sale

deeds dated December 2, 1991 and December 12, 1991 in favour

of the respondents before this Court. On the basis thereof,

they sought to come on record as defendants under Order 1,

Rule 10, CPC. The trial Court dismissed the application

holding that they were neither necessary nor proper parties

to the suit. On revision, the High Court in the impugned

order in C.R. No.323/93, dated May 13, 1993 directed

impleadment of the respondents as party defendants to the

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suit. Thus this appeal by special leave.

Shri Kapoor, learned counsel for the appellant,

contended that the claim for declaration of title is founded

upon the registered will executed by his mother dated May

26, 1952 which was upheld in an earlier suit in which the

declaration and possession was granted and in furtherance

thereof the appellant remained in possession. His mother

Hira Devi left behind him and three sisters and one of the

sisters is Rajender Kaur whose sons are the defendants in

the suit. The second suit came to be filed when his

possession was sought to be interdicted asserting their

right to the property through their mother. Pending suit,

when they had alienated the property to the respondents. It

is hit by the doctrine of lis pendens under section 52 of

the Transfer of Property Act. The respondents are neither

necessary nor proper parties. In support thereof, he placed

reliance on the judgment of this Court in New Redbank Tea

Co. Pvt. Ltd. v. Kumkum Mittal & Ors. [(1994) 1 SCC 402].

Mrs. Rekha Palli, learned counsel for the respondent

contended that the declaration sought is in respect of

immovable property. Having purchased the property, though

pending suit, they are proper parties for defending the

title of their predecessor in interest. Therefore, the High

Court was right in bringing them on record under Order 1,

Rule 10 CPC. The placed reliance on the judgment of this

Court in Ramesh H. Kundanmal v. Municipal Corporation of

Greater Bombay [(1992) 2 SCC 524]. The ratio in either of

the cases has no application to the facts in this case.

Therefore, it is not necessary to refer to them in extenso.

Having regard to the respective contentions, the

question that arises for consideration is: whether the

respondent