Court dismissed a revision petition challenging the dismissal of an impleadment application. It held that a person in possession merely as the son of a co-sharer, without independent right in the property, is neither a proper nor a necessary party to a partition suit, and the application was a misuse of process intended to delay proceedings.
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CR No. 2573 of 2010
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IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
CR No. 2573 of 2010 (O&M) Date of Decision : 22.4.2010
Suresh Kumar Mahendergarhiya
.......... Petitioner
Versus
Bishan Dayal and others
...... Respondents
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Sudhanshu Makkar, Advocate for the petitioner.
VINOD K. SHARMA, J. (ORAL)
This revision petition is directed against the order dated 9.2.2010, passed by the learned Addl. Civil Judge (Sr. Div.) Loharu, vide which application moved by the petitioner, under Order 1 Rule 10 of the Code of Civil Procedure, for being impleaded as a party, in a suit for partition, at the stage of final decree, has been ordered to be dismissed.
The father of the petitioner was owner of 1/3rd share along with other co-sharers, and plaintiff who had sought the possession of his share by way of partition. The suit was contested by the father of the petitioner, and the preliminary decree was passed by the learned trial Court, which was affirmed by the learned lower appellate Court. The decree attained finality.
When the case was at the stage of passing of final decree, in terms of the preliminary decree, the application was moved by the petitioner claiming
CR No. 2573 of 2010
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himself to be in possession of the substantial portion of the property as son of the defendant No.1- Ram Kishan, therefore, claimed to be impleaded as a party to protect his possession in a suit for partition.
The learned trial Court dismissed the application.
The learned counsel for the petitioner contends, that the impugned order cannot be sustained, as the petitioner being in physical possession of the property was proper and necessary party to the suit for partition, as improvements were made in the property by him, and his rights were, therefore, likely to be affected.
On consideration, I find no force in the contentions raised by the learned counsel for the petitioner. The applicant / petitioner was not a party in the original suit filed for partition of the property between the cosharers, especially when the possession of the petitioner was as son of a cosharer of the property. The application was nothing, but misuse of process of the Court, and intention of the petitioner was merely to delay the proceedings. The property is in possession of his father through the petitioner. The contention raised by the learned counsel for the petitioner is misconceived. A person in possession, having no right in the property, cannot be said to be either proper or necessary party in a suit for partition.
No ground for interference, therefore, is made out.
No merit.
Dismissed.
22.4.2010 ( VINOD K. SHARMA ) 'sp' JUDGE
2 issues framed by the court
Whether a person in possession of property as a son of a co-sharer, without any independent right in the property, is a necessary party to a suit for partition.
Whether an application for impleadment of such a party at the stage of final decree constitutes misuse of process of court for delay.
Suresh Kumar Mahendergarhiya
Bishan Dayal and others
Vinod K. Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
