Dismissed

Shivshankar Jagannath Kini and 2 Ors. v. 1(a) Pravin Bharatsingh Thakur and Ors.

Bombay HC16 Mar 2012APP/246/2012

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against an order allowing plaintiffs to join appellants as party defendants. The court held that the issue of whether appellants are trespassers or co-owners is a fact to be determined at trial and initially ordered no interference.

What did the court decide?

Appel dismissed; times for written statement and amendment extended.

Shivshankar Jagannath Kini and 2 Ors. Vs 1(a) Pravin… — Specific Performance | Bombay HC (2012)

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APP(L).140.2012

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL (L).NO.140 OF 2012 IN CHAMBER SUMMONS NO.1895 OF 2009 IN SUIT NO.3649 OF 1989

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Shivshankar Jagannath Kini and others versus Pravin Bharatsingh Thakur and others

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Appellants Respondents

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Mr.Rajiv Patil i/by A.A.Maniyar for appellants. Mr.K.D.Shah for respondents.

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CORAM : MOHIT S. SHAH, C.J. AND RANJIT MORE, J.

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DATE : March 16, 2012

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PC :

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This appeal is directed against order dated 21 February 2012 passed by learned Single Judge of this Court allowing Chamber Summons No.1895 of 2009 of the plaintiff in Suit No.3649 of 1989 for joining the appellants herein as party defendants to the suit filed for specific performance of agreement for sale dated 29 October 1987.

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The plaintiffs took out Chamber Summons for joining the appellants as party defendants on the ground that the appellants are

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2 APP(L).140.2012

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trespassers and have put up structures on the suit land. The appellants opposed the Chamber Summons on the ground that they are the coowners of the land on the Eastern side of the suit land and particularly the appellants claim to be the owners of Plot No.2 admeasuring 2,878 sq.yards (equivalent to 2,406 sq.mtrs.) and Plot No.3 admeasuring 1,000 sq.yards (equivalent to 836.13 sq.mtrs.) which are shaded in Yellow and Blue colours respectively on the site location plan annexed as Exhibit-A-8 to the affidavit in support of the notice of motion, out of the suit land bearing No.172(P), CTS No.195 of Mauje Bhandup, District Mumbai.

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Learned counsel for the appellants has submitted that the appellants are not parties to the suit agreement for sale and that the appellants are not liable to sell their share in the land to the plaintiffs irrespective of the outcome of the suit filed by the plaintiffs against original defendants.

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The learned counsel for the plaintiffs has opposed the appeal and has supported the impugned order of learned Single Judge. The learned counsel for the plaintiff has also relied upon the decision of Apex Court in Dhanalakshmi and others Vs. V.P.Mohan and others reported in AIR-2007-SC-1062 , particularly paragraph 5 thereof which reads as under :-

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"5. Section 52 deals with a transfer of property pending suit. In the instant case, the appellants have admittedly purchased the undivided shares of the respondents Nos.2,3,4 and 6. It is not in dispute that the first respondent P.Mohan has got an undivided share in

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APP(L).140.2012

the said suit property. Because of the purchase by the appellants of the undivided share in the suit property, the rights of the first respondent herein in the suit or proceedings will not affect this right in the suit property by enforcing a partition. Admittedly, the appellants, having purchased the property from the other cosharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the appellants are necessary and proper parties to the suit, which is now pending before the Trial Court. We also make it clear that we are not concerned with the other suit filed by the mortgage in these proceedings."

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Having heard learned counsel for the parties, we are of the view that the question whether the appellants are trespassers as contended by the plaintiffs or whether they are co-owners of the suit land, as contended by the appellants, is a disputed question of fact, which is to be decided by the Court at the trial and, therefore, we are not required to examine the controversy. If the appellants are trespassers and if the Trial Court passes a decree in favour of the plaintiffs and against the original defendants, the decree would certainly bind the trespassers. However, in case the appellants succeed in showing that they are the co-owners of the suit land, the decree which the Trial Court may pass in favour of the plaintiffs, would be for sale of undivided share of the original defendants and thereafter the plaintiffs would be required to file a suit for partition and for possession of the suit land and for a decree for possession of the share to be earmarked in favour of the original defendants. The litigation between the plaintiffs and the appellants would, therefore, be inevitable in case the suit were to be decreed against the original defendants.

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APP(L).140.2012

As the present suit is pending since 1989, the learned Trial Judge was justified in allowing the Chamber Summons at this stage rather than requiring the plaintiffs to wait till the suit of 1989 be decided.

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In view of the above, we are not inclined to interfere with the impugned order of learned Single Judge, but we make it clear that in case the plaintiffs' suit against the original defendants is dismissed, the appellants would be entitled to pray for costs of the suit.

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Subject to the above clarification, the appeal is

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dismissed.

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It is clarified that we may not be treated to have expressed any opinion on the merits of the controversy and all contentions of the parties are kept open.

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Time to carry out the amendment pursuant to the impugned order is extended till 29 March 2012.

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The appellants may file their written statement by 11 May 2012.

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M.S.Thatte

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Shivshankar Jagannath Kini and 2 Ors. v. 1(a) Pravin Bharatsingh Thakur and Ors.

Case brief

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Shivshankar Jagannath Kini and 2 Ors. v. 1(a) Pravin Bharatsingh Thakur and Ors.

Case brief

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