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Mazhar HussaIn Vs. Shafi Mohammed and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 619 of 1968
Judge
Reported in1969WLN316
AppellantMazhar Hussain
RespondentShafi Mohammed and ors.
DispositionApplication allowed
Cases ReferredMotiram R. Coal Co. v. District Committee
Excerpt:
.....who claims to belong to this class unless it is prima facie satisfied about the plausibility of his claim. in the present case, mohammed farooq lays claim to the property in suit in derogation of the claims of the plaintiff as well as the defendants on record. mohammed farooq claims to be the owner as well as to be in possession of this property. it is open to him to bring a suit against the plaintiff as well as the defendants on payment of requisite court-fees, the judgment which will bind both the parties......possession of the land in suit exclusively since the time of her grandfather karim bux. mohammed farooq claims to be the owner as well as to be in possession of this property. his case is that the plaintiff is merely his agent through whom he has been in possession. it has alleged by him that as he did not live at the place where the land in suit is situated had asked the plaintiff to look after it on his behalf. if mohammed farooq is impleaded, then the court will have to undertake an inquiry beyond the scope of the present suit.13. rule 10 (2) runs, as follows-court may strike out or add parlies.-(2) the court may at any stage of proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any.....
Judgment:

Jagat Narayan, J.

1. This is an application by Mazhar Hussain plaintiff; against an order of the Munsiff, Merta under Order 1, Rule 10(2) C.P.C. directing him to implead Mohammed Farooq as a defendant in the present suit.

2. According to the plaint, the plaintiff is the owner and in possession of plot No. ABCDEF. In support of this claim he has filed a patta issued in Sambat 1941 in favour of Nabi Karim Bux and Khudabux, sons and grand-son of one, Ahmed Bux. He asserts that they were his ancestors and subsequently in reply, to an application under Order, 6 Rule 5 C.P.C. he has filed a pedgree table connecting himself with them.

3. His further case is that out of this plot, the red-coloured portion was given by him to Shan Mohammed and his wife Smt. Ayesha, who has since died, about three years before the filing of the suit and that Smt. Ayesha executed a, pale-deed of the red coulored land & houses standing thereon in favour of one Qim-ruddin. He brought the present suit for possession over the red coloured land and houses standing on it. It is alleged that the houses were constructed by him.

4. Smt. Ayesha and Shaft Mohammed filed one written statement in which, it was asserted that the plaintiff was not a descendant of Nabi Bux, Karim Bux and Khuda Bux in whose favour the patta had been issued, that the pedigree table filed by him was not true and that Smt. Ayesha was the grand daughter of Karim Bux and was a co-owner of the suit property. It was denied that the possession was taken as a licensee from the plaintiff. On the contrary, it was asserted that, Smt. Ayesha had been in possession from the time of her ancestors. It was also alleged in the written statement that several other descendants of the original patta-holders were alive and were necessary parties to the suit. Amongst them, Mossa, Mohammed Farooq and Haroon were named.

5. Mohammed Farooq filed an application for being impleaded as a defendant under Order 1, Rule 10(2) in which he alleged that he was the owner and in possession of the red-coloured portion about which the suit was brought, that the plaintiff was his licensee and that he had no right to maintain the suit.

6. The trial court directed the plaintiff to implead Mohammed Farooq on the ground that he had1 claimed an interest in the suit property. The view, taken to him is not correct. As was held in Fatch Raj v. Suraj Roop 1969 RLW 215 and Syed Wazir Alii v. Syed Wali 1968 RLW 324, intervention can be insisted upon in the following three clauses of cases (A) In a representative action where the intervener is one of all class whom plaintiff claims to represent. The intervener may say I deny that plaintiff represents me add me as a, defendant. (B) Where the proprietary rights, of the intervener are directly affected by the proceedings. (C) In actions claiming the specific performance of contracts where third persons have an interest in the question of the manner in which the contract should be performed.

7. (A) and (C) can have no application to the present case. The case does not fall under class (B), Because the decision in this suit would not affect, the proprietary rights of Mohammed Farooq; if any.

8. If everyone who comes forward and claims a proprietary interest in the, subject matter of the suit in the manner in which Mohammed Farooq has done, impleaded as a party, there would never be an end to such a trial and the plaintiff, will be greatly embarrassed in prosecuting his case to a conclusion.

9. The plaintiff being generally dominus litus, he can't be compelled to fight against some other litigant not of his own choice unless such a process is required by a positive rule of law. Order 1, Rule 10(2) is applicable to two classes of cases only. One class is where he ought to have been joined as a plaintiff or a defendant and is not so joined. That is a case of a necessary party. The other class is where without his presence the questions in the suit cannot be effectually and completely decided.

10. The court has no power to join a person as a party who claims to belong to this class unless it is prima facie satisfied about the plausibility of his claim. Rule 10(2) cannot be read as requiring all persons who choose to lay claim, to any sort of right, title or interest in respect of any portion of the subject matter of a suit to be made a party.

11. In the present case there is no prima facie material on the basis of which it can be said that Mohammed Farooq's claim to the property in suit is bonafide.

12. Another consideration which the court has to bear in mind is that by impleading a person on his application as a party to the suit against the wishes of the plaintiff the scope of the inquiry in the suit is not enlarged. In the present case, Mohammed Farooq lays claim to the property in suit in derogation of the claims of the plaintiff as well as the defendants on record. The plaintiff claims to be the owner in possession of this land. Smt. Ayesha claims that she is the co-owner of it along with Mohammed Farooq and Haroon and that she has been in possession of the land in suit exclusively since the time of her grandfather Karim Bux. Mohammed Farooq claims to be the owner as well as to be in possession of this property. His case is that the plaintiff is merely his agent through whom he has been in possession. It has alleged by him that as he did not live at the place where the land in suit is situated had asked the plaintiff to look after it on his behalf. If Mohammed Farooq is impleaded, then the court will have to undertake an inquiry beyond the scope of the present suit.

13. Rule 10 (2) runs, as follows-

Court may strike out or add parlies.-(2) The Court may at any stage of proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added.

It is only for the purpose of deciding 'all the questions involved in the suit' as already instituted that a party can be added to decide the dispute completely and effectually.

14. The present suit is for certain reliefs against certain persons as defendants and a judgment in it will not be judgment in rem. It will only bind the parties impleaded in the suit. The right of Mohammed Farooq, if any, in the property in suit will not be affected or prejudiced by not impleading him. It is open to him to bring a suit against the plaintiff as well as the defendants on payment of requisite court-fees, the judgment which will bind both the parties. In this connection, I may refer to the decision of the Madras High Court in Prayaga Doss Jee Vaiu v. Board of Commissioners for Hindu Religious Endowments Madras AIR 1926 Mad. 836 and of the Patna High Court in Motiram R. Coal Co. v. District Committee, Dhanbad : AIR1962Pat357 .

15. In the result I allow the revision application with costs and set aside the order of the trial court.


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