Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 9439 of 2018 Petitioner :- Roshan Jahan Respondent :- Jaitun And 4 Others Counsel for Petitioner :- Sayyed Kashif Abbas Rizvi,Joun Abbas Counsel for Respondent :- Jai Singh Yadav
Hon'ble Mrs. Sunita Agarwal,J.
The present petition is directed against the order dated 9.3.2017 under Order 1 Rule 10 C.P.C. passed in Original Suit No.135 of 2009 (Smt. Jaitoon v. Smt. Rehmana Begum & Ors.), passed by the Additional Civil Judge (Senior Division) Court No.3, Moradabad, whereby the claim of the petitioner being a necessary and proper party to the said suit, has been rejected.
The aforesaid suit has been filed with the relief of injunction against the original owner namely Smt Rehmana Begum on 19.2.2009 with regard to a plot area 4.850 Sq. Meters, boundaries of which has been given at the foot of the plaint. As per the plaint assertion, the plaintiff had got title in the suit property on the basis of a registered sale deed dated 19.8.2008 executed by defendant no.1 Smt. Rehmama Begum and had obtained possession of the suit property after execution of the said sale deed. However, the cause of action to institute the suit arose on 10.2.2009 when the plaintiff had started raising construction over the suit property with an intention to construct a house. It has been stated therein that defendant nos.1, 2 and 3 are real brothers and they are in collusion. In order to frustrate the right of the plaintiff in the suit property, which she got after payment of sale consideration to the tune of Rs.1,50,000 to defendant no.1, the defendants 2 to 4 had obstructed the constructions being raised by her.
The petitioner herein is claiming her right in the suit property through defendant no.1 Smt Rehmana Begum on the basis of a sale deed executed by the defendant no.2 based on power of attorney given by defendant no.1. It is admitted to the applicant/petitioner herein that defendant no.2 is her husband and the sale deed, allegedly executed on 14.8.2006 in her favour was based on the power of attorney, allegedly existing in favour of the defendant no.2 i.e. her husband, on the date of execution of the sale deed.
It is admitted that the defendant no.1 has filed her written statement on 14.11.2018 denying the subsistence of power of attorney in favour of defendant no.2. It was categorically stated therein that the power of attorney earlier executed in favour of defendant no.2 was revoked by her vide registered deed dated 10.8.2006, the power of attorney was thus, not in existence on the date of execution of the sale deed in favour of his wife without consideration. The defendant no.2 had executed the said deed, in order to grab her property.
It is admitted to the petitioner that the defendant no.2 who is husband of the applicant/petitioner, has yet not filed his written statement so as to contradict the assertion of defendant no.1 regarding the fact of revocation of registered power of attorney. It is also evident from the record that initially the mutation application filed by the petitioner on the basis of the alleged sale deed dated 14.8.2006 had been rejected vide order dated 18.7.2007 on the objection raised by defendant no.1, however, at a later point of time, her name has been mutated.
Be that as it may, noticing the fact that the petitioner's interest in the suit property is being looked after by her husband, who is party to the suit as defendant no.2 and the executant of the sale deed dated 14.8.2006, the claim of the petitioner for being impleaded in the suit as vendee of the said sale deed cannot be accepted.
It is settled law that the plaintiff is master of the suit being dominus litus. The relief of injunction has been sought against three persons namely defendant no.2 to 4 who were interfering in the possession of the plaintiff on the date of institution of the suit. The right in the suit are claimed through defendant no.1 who herself had denied execution of the sale deed dated 14.8.2006. For the relief of permanent injunction, without there being any relief of cancellation of the sale deed, the plaintiff cannot be directed to implead the petitioner/vendee as either necessary or proper party to the suit. Moreover, in the opinion of the Court, the petitioner's presence in the suit is not required as the relief is of injunction simplicitor. The impleadment application, in the opinion of the court, has been filed at the instance of defendant no.2 who has not appeared before the court below to clear his stand about the subsistence of the power of attorney or the deed of revocation dated 10.8.2006.
It is always open for the petitioner to file her independent suit to claim her right in the suit property. No interference is required in the orders impugned.
Lastly, the fact of a compromise arrived between the petitioner/applicant and defendant no.1 in Original Suit No.174 of 2007 and the compromise decree having been passed on 30.4.2009 would be of no relevance, inasmuch as, the plaintiff in the instant suit was not party to the said compromise decree. It is further noteworthy that another suit no.193 of 2018 has been filed by the plaintiff of the instant suit namely respondent no.1 impleading the petitioner herein as defendant no.4 and other defendants of the instant suit, seeking cancellation of the compromise decree dated 30.4.2009. The certified copy of the plaint and the order sheet of original suit no.19 of 2018 filed today in the Court, are taken on record.
It is pointed out by learned counsel for the respondent that criminal proceedings have also been initiated by Smt. Rehmana Begum defendant no.1 against petitioner herein and her husband namely defendant no.2. For the aforesaid, the present petition is dismissed being devoid of merits.
It goes without saying that the observations made hereinabove are in order to examine the contention of the petitioner claiming her right for impleadment on the basis of the sale deed dated 14.8.2006 and to find out as to whether she is necessary and proper party in the instant suit. They would not come in the way of the petitioner in case any suit is filed by her asserting her right in the suit property. The court concerned would be under obligation to consider the suit independently without being influenced by any of the observations made hereinabove.
Order Date :- 21.1.2019 Jyotsana