S.D.SHAH - (1.). The petitioner has by this C.R.A. challenged the legality and validity of the order passed below Exh. 19 in R.C.S. No. 474 of 1991 by the Civil Judge (J.D.), Anand. The application is given under Order 1, Rule 10 C. P. Code for impleading the present petitioner as party-defendant on the premise that the present petitioner- Navnitbhai Patel has by agreement to sell, dated 21-1-1991 agreed to purchase the parcel of land admeasuring 3 acres at a price of Rs. 60 lacs out of which he has paid amount of Rs. 5 lacs as earnest money. The said agreement is admittedly entered into with Patel Ambalal Kalidas-respondent No. 2 herein who is the father of respondent Nos. 3 and 7. The execution of agreement to sell is not in dispute before this Court.
(2.). It appears that thereafter Patel Rameshbhai Ambalal present respondent No. 1 instituted R.C.S. No. 474 of 1991 in the Court of Civil Judge (J.D.), Anand for partition of joint family properties wherein he impleaded his father - Patel Ambalal Kalidas as defendant No. 1. The parcel of land in dispute is bearing S. No. 71 admeasuring 20 acres and 24 gunthas situated at Anand-Vidyanagar Road. The agreement to sell is a registered agreement. Since the present petitioner came to know about institution of suit for partition wherein S. No. 71 is included as coparcenary property liable to partition, he applied to the trial Court under Order 1, Rule 10 of C. P. Code for the purpose of being impleaded as party- defendant as according to him he has enforceable legal right of specific performance of agreement to sell, he can also apply for return of earnest money as well as for damages arising from non-fulfilment of agreement to sell. It is his case that, therefore, he is necessary party, or at least proper party who has direct interest in one of the suit properties which is the subject-matter of partition in a suit filed by the son. It is his further case that suit for partition is collusive suit filed by one of the sons at the instance of the father. It is his case that if the properties are partitioned and the property in question is given over in partition to party other than the father, his agreement to sell would be rendered unenforceable and a mere piece of paper. It is his further case that his remedy of specific performance of agreement and of recovering damages as well as remedy of recovering earnest money back from the father would also have been rendered meaningless. Therefore, he prayed before the trial Court that he is a necessary party who is required to be impleaded as party-defendant or in any case he is a proper party whose presence before the Court would help the Court in finally adjudicating upon the issue effectively without jeopardising the right of the third party.
(3.). Such an application is contested tooth and nail by filing reply at Exh. 40 whereby it was contended before the trial Court that the third party is neither a necessary party nor a proper party. It was also declared before the Court that the third party has also filed suit for specific performance being C. S. No. 292 of 1992 and therefore, also the application is required to be rejected.