This review petition challenged orders fixing on maintainability of suit due to non-joinder of sale-deed vendor. Court held vendor not necessary as plaintiff can seek relief against occupant as dominus litis.
Impugned orders dated 16.11.2017 and 6.10.2018 dismissed while review petition deemed devoid of merits.
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Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8786 of 2018 Petitioner :- Ramawati Devi And Another Respondent :- Radhey Shyam Singh And Another Counsel for Petitioner :- Sadhu Sharan Counsel for Respondent :- Vinod Kumar Yadav,C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
The present petition is directed against the orders dated 16.11.2017 and 6.10.2018 passed by the courts below in deciding issue no. 5, relating to maintainability of the suit on the plea of non-joinder of the necessary party raised by the defendants.
The plaintiff in the Original Suit No. 632 of 2016 is seeking mandatory injunction against the defendants no. 1 and 2 on the basis of the sale-deed dated 7.4.1992, pursuant to which his name has allegedly been recorded in the revenue record.
As per the plaint allegations, the defendants are in possession of the suit property without there being any right, title and interest therein. The question as to whether the plaintiff would be entitled to get the decree of mandatory injunction on the basis of the sale-deed dated 7.4.1992 can very well be examined by the court below in absence of the vendor of the sale-deed, whose misjoinder has been pleaded by the defendants.
The vendor of the sale-deed dated 7.4.1992, which is the basis of the claim of the plaintiff, cannot be said to be necessary or proper party to the suit. Even otherwise, it is right of the plaintiffs to seek relief against a person as he is in a position of dominus litis and cannot be compelled to contest the suit against the proposed party.
It is not a case where it could be demonstrated by the petitioner/defendant that in absence of the vendor, the Court would not be in a position to effectively and completely adjudicate and settle all the questions, which are involved in the suit. The defendants, therefore, cannot dictate upon the plaintiff to implead the vendor.
No infirmity is, therefore, found in the orders impugned.
The present petition is found devoid of merits and hence dismissed.
Order Date :- 26.11.2018 Pratima
1 issue framed by the court
Whether the warranting vendor of the sale-deed is a necessary party when plaintiff seeks mandatory injunction.
Ramawati Devi
Another
Radhey Shyam Singh
Another
Sunita Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
