MADAN, J. - (1.) THE appellant has come up by way of this appeal challenging the Judgment and Decree dated 31. 1. 1997 passed by the learned Additional District & Sessions Judge, No. 4, Jaipur City, Jaipur in consolidated suit No. 238/79 and 19/80 (79/78 old) and has sought declaration and delivery of the property in suit on the basis of the `will' which was executed in his favour by Maji Shankar Nath on 2. 8. 1967. He had claimed the right, title and interest on the property on the basis of the aforesaid `will'. In the year 1971 defendant No. 1 Aas Chandrama Pav took advantage and unauthorisedly sold the property to defendant Nos. 2 & 3 on 22. 7. 1967. Maji Shanker Nath expired in the year 1971 and thereafter one Smt. Chhota Devi, who had obtained the possession of the said property and filed Civil Suit in Munsif Court and as on 22. 9. 70 a decree was passed, which was challenged by way of the present suit resulting in filing two civil suits against the defendants out of which present appeal has arisen.
(2.) THE main contesting defendant in the case was defendant No. 1 Aas Chandrama Pav. As per written statement filed by him on 29. 3. 1976, averment was made claiming his right over the property. THE written statement of the said defendant No. 1 was also adopted by the legal heirs of defendants No. 12 & 13. THE other defendants have not contested the suit nor any evidence was led on their behalf. However defendant-Prashant Gelda and Devendra Kumar Gelda while adopting the previous written statement made averment confirming the sale deed dated 25. 1. 1964. THEreafter Civil Suit Nos. 238/79 and 19/80 were both consolidated resulting in the impugned Judgment, which is subject matter of challenge in this appeal. During the pendency of the appeal, a compromise was arrived at between the parties i. e. the present appellant and defendant No. 15 (represented by Shri A. K. Pareek ). The parties have now accepted the sale deed dated 15. 1. 1964, which was registered on 25. 1. 1964 with the Sub-Registrar of Properties, Jaipur, by the defendant No. 1 in favour of Bheru Lal Gelda, Shyam Sunder Gelda, Chatter Sen Gelda and Roshan Lal Gelda. Consequent upon the above, the plaintiff-appellant moved an application dated 18. 2. 2000 for withdrawal of the appeal. During the course of hearing Shri K. K. Sharma learned counsel for the appellant under instructions of the appellant, who is present in person in the court has contended that the sale-deed with reference to Khasra numbers mentioned therein is legally valid being a registered document and he has also admitted execution of the sale deed. This fact has not been disputed by Shri A. K. Pareek the learned counsel for respondent No. 15. It has been further contended in the said application that ever since the date of the documents, the defendants No. 15 to 18 have been in continuous possession of the property conveyed under the aforesaid sale-deed, it has further been contended that the appellant or any other person claiming through him have no right, title or interest over the property in question and the matter has been amicably settled between them. It is under these circumstances the appellant has requested for withdrawal of the appeal as he is not pressing the same. The appellant who is present in the court has stated that he shall not claim any right, title or interest either under the aforesaid will or any other document as regards the property in the suit. Since he has finallly is settled the matter hence under these circumstances he does not want to prosecute the appeal. It is significant to note that during the pendency of the appeal another application has been filed under Order 22 Rule 10 read with Rule 11 CPC by the aforesaid applicants claiming their right, title and interest in the property and they have contended that the appeal should be kept pending. Since otherwise their rights in the said property in suit may not be affected. They have opposed withdrawal of the appeal as their interest would otherwise be adversely affected and have claimed that they should be allowed to be added as parties or should be allowed to be substituted as appellants. Shri S. C. Gupta and Shri Mahesh Gupta, learned counsel representing the applicants has contended that there was a sale agreement executed between the appellant and the applicants on 29. 09. 1989. It has been contended that there was collusiveness between the plaintiff-appellant with other respondents and that the applicants are in possession of the property in the suit. The applicants have also challenged the ownership of respondents No. 15 and have further contended that the said respondent had no legal right to enter into an agreement with the plaintiff as regards the property in question.
(3.) BE that as it may, in the context of above background in order to appreciate the contentions advanced by the learned counsel for the applicants, it will be pertinent to mention the provisions of Order 22 Rule 10 CPC, which lays down the procedure in case of assignment before final order in suit-" (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest to come for devolved". There has to be an established legal right before any assignment, creation or devolution of the interest which the applicants have failed to establish on record. If it is so, then nothing prevented them from becoming a party to the suit by way of filing an application during pendency of the suit, which admittedly had not been done by them and now at this stage when the contesting parties to this appeal have requested for withdrawal of appeal on the basis of compromise, the abovesaid applicants have opposed the same. It is pertinent to mention that the sale-deed which was executed between the parties as referred to above, on 25. 1. 1964 while the suit was filed in the year 1979 and which was decreed by the trial court on 31. 1. 1997, in case the applicants had any grievance then nothing would have prevented them from moving a proper application by taking steps expeditiously for being impleaded as necessary parties to the suit during the pendency thereof. They having not been done so, at this belated stage, they have no right to prevent the appellant or the contesting respondents from withdrawing the appeal. I have also perused certified copy of the registered sale deed which has been made available by the learned counsel for the respondent No. 15 during the course of hearing, the same is taken on record and marked as Exb. C-1. I am fortified in my observations from the Judgment of the Apex Court in the matter of Patel Natwarlal Rupji vs. Kondh Group Kheti Vishayak (1), wherein the Apex Court has observed that even in a case, where a transferee has taken possession of property in part performance of an agreement, the agreement to sell does not confer any title in the land as per Section 53 A of the Transfer of Property Act, 1882 but he only become entitled to specific enforcement of the agreement as an equitable relief. ;