Akkabai Alias Shakubai Laxman Satav v. Rajendra Vasant Kamble And ORS

Arun Sankpal

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 19169 OF 2024 Akkabai Alias Shakubai Laxman Satav ..Petitioner

Versus

Rajendra Vasant Kamthe & Ors

...Respondents

Mr. Jaydeep Deo, for the Petitioner.

CORAM:

N. J. JAMADAR, J.

DATE :

4th NOVEMBER 2025 ORDER:

1.

The Petitioner-Defendant No.13 takes exception to an order dated 21st September 2024 passed by the learned Civil Judge, Pune, whereby an Application preferred by the Petitioner to implead third persons as party-Defendants to the Suit came to be rejected. 2.

The Respondent Nos. 1 to 5 and Respondent No.30 instituted a ARUN RAMCHANDRA SANKPAL Suit for declaration that the Plaintiffs, being the successor-in-interest of ARUN RAMCHANDRA SANKPAL Date: 2025.11.06 20:32:43 +0530 late Kondiba Kamthe, collectively have one-third undivided interest in the suit properties; the Sale Deeds dated 30th December 1984 and 30th December 2008 are illegal, void-ab-initio and are not binding on the share of the Plaintiffs; the purported Partition Deed dated 11th June 2007 executed by and between the Defendant Nos. 4 to 11 is also illegal and void-ab-initio and does not bind the share of the Plaintiffs; for 1/4

partition and separate possession of the suit properties and for the consequential relief of injunction.

3.

The Petitioner filed an Application to implead the persons who allegedly purchased the portions of the suit properties from the legal heirs of Rambhau Kamthe, under a Sale Deed dated 21st July 1980, and the Sale Deed No. 5854 of 2007 executed by Somnath Kamthe in the capacity of the constituted attorney of some of the legal heirs of Rambhau, and a Sale Deed dated 22nd June 1970 executed by late Kondiba Kamthe.

4.

By the impugned order, the learned Civil Judge was persuaded to reject the Application observing, inter alia, that the Plaintiff have not at all challenged the Sale Deed dated 22nd June 1970 and 21st July 1980. Nor the Defendant No.13 has filed any counter-claim seeking a declaration in regard to the aforesaid Sale Deeds. In the absence of the challenge to those Sale Deeds, the transferees thereunder were neither necessary nor proper parties.

5.

Mr. Jaydeep Deo, the learned Counsel for the Petitioner, would urge that the learned Civil Judge was in error in rejecting the Application as in a Suit for partition each of the Defendants stand in the shoes of the Plaintiff and, in the event it is ultimately found that the parties to the Suit have conveyed the land in excess of their entitlement, 2/4

the Court would not be in a position to balance the equities, even after allocation of those alienated properties to the share of the transferors. 6.

I am afraid to accede to the submissions on behalf of the Petitioner. The Plaintiff is dominus litus. The Plaintiff cannot be compelled to implead persons as party-Defendants unless the Plaintiff's choice is controlled by the provisions contained in Order I Rule 10(2) of the Code of Civil Procedure, 1908 ("the Code"). A person can be impleaded as a party to the Suit, irrespective of the wish of the Plaintiff, if it can be demonstrated that such person is either a necessary or a proper party.

7.

In the case at hand, the Plaintiffs are seeking partition and separate possession of their share in the suit properties in the capacity of legal representatives of late Kondiba Kamthe. Evidently, the Sale Deeds referred to and relied upon by the Defendant No.13 are not put in contest by the Plaintiffs. Nor the Defendant No.13 has filed any counter claim assailing the legality and validity of those Sale Deeds. 8.

In the absence of such challenge, the learned Civil Judge was justified in returning a finding that the transferees thereunder were neither the necessary nor the proper parties. In the circumstances of the case, it does not appear that the transferees under the instruments referred to by the Defendant No.13 appeared to be necessary parties in the sense that no effective decree can be passed in the absence of those 3/4

transferees. Nor can presence of those persons be said to be warranted for a complete and effectual adjudication of the dispute between the parties. In any event, if the issue of of nonjoinder of the necessary parties is raised and found against the Plaintiffs, the later would suffer the consequences that follow.

9.

In the aforesaid view of the matter, this Court does not find any justifiable reason to entertain the Petition. 10.

Resultantly, the Petition stands dismissed.

[N. J. JAMADAR, J.] 4/4