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Rupendra Nath Sharma & Others v. Tarakh Nath Sharma & Another - CIVIL REVISION No. 400 of 2006 [2006] RD-AH 17865 (17 October 2006)


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   A F R

Court No. 24

Civil Revision No. 400 of 2006

Rupendra Nath Sharma & others Vs. Sri Tarakh Nath Sharma & others


Hon'ble Umeshwar Pandey, J.

Heard the learned counsel for the revisionists.

This revision challenges the order dated 27.9.2006 whereby the court below has allowed the prayer of respondent No.1 for his impleadment as a party defendant in the suit.

The suit is for the relief of possession over a particular property. The revisionists-plaintiffs claim the property to be in their exclusive ownership. The defendant-respondent No. 2 contests the suit claiming the property to be a joint Hindu family property over which he too has joint right along with other members of the family. Looking to the pleadings of the parties in the suit one of the brothers of the parties, who is respondent No. 1, moved the court for impleadment in the suit under Order I Rule 10 C.P.C. stating that the parties have colluded and since his claim in the property has also come at stake, he should be impleaded as a party defendant.

The learned counsel appearing for the revisionists submits that the court below when once has rejected the prayer of defendant-respondent No.2 for referring the matter to an arbitration holding primafacie that the property did not appear to be a joint Hindu family property over which the arbitration agreement could apply, in such circumstances the same court could not take a summer-sault from its previous stand by holding the respondent No.1 as a necessary or proper party and permitting him to be impleaded in the suit as such.

I do not agree with the submission of the learned counsel inasmuch as the earlier  finding recorded by the court below in the context of a petition for referring the matter to the arbitration, is definitely not a final finding recorded by it in respect of the pleadings placed by the parties before it. Whether or not the property in suit is a joint Hindu Family property or an exclusive property of the plaintiffs is such an issue which finds finality only after the decision of the suit and not before it. Therefore, to blame the court below that it could not have taken a contrary stand from the finding recorded by it at an earlier stage of the suit, would be wholly unjustified. In the present case, admittedly, the respondent No. 1 is one of the real brothers of the parties. The property in                                                 suit is alleged to be joint Hindu family property by the contesting defendants whereas the plaintiffs claim it to be in their exclusive ownership. The decision on this point is definitely going to effect the right of members of that family, of which the respondent No.1 is also one. In such circumstances if the court has permitted him to be impleaded as a party defendant in the suit, the order is wholly justified and no interference against the same is possible in the present revision.

The revision is without merit and it is accordingly dismissed at the admission stage.




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