Prem Shankar Asopa, J. - (1.) By this writ petition, the petitioners have challenged the order dated 17.03.2008 whereby the application filed under O.1 R.10 CPC by respondent No. 3 Smt. Janki Devi, daughter of late Prabhati and sister of respondent Nos. 1 and 2 claiming 1/3rd share in the disputed property, has been allowed in civil suit filed by plaintiff -petitioner. Admittedly, Smt. Janki Devi is sister of sellers Jai Narayan and Jagdish Prasad and further Prabhati Lal was the father of all the three brothers and sister and was the original khatedar of the land, whose land has been sold by respondent Nos. 1 and 2 to the petitioner who are claiming themselves to be the bona fide purchasers. In reply to the application filed by Janki Devi, it has been averred by plaintiff -petitioner that in the revenue record, there was no entry regarding mutation of Janki Devi as the successor of the late Prabhati, therefore, the agreement to sale which was made is proper and as per law and she is not a necessary party.
(2.) The trial court has considered the fact that Smt. Janki Devi -applicant has filed an appeal before the SDO against the order of mutation No. 118 dated 28.06.82 by Tehsildar wherein no entry has been made in mutation No. 118 of her 1/3rd shares in the property.
(3.) The submission of the counsel for the petitioners is that Smt. Janki Devi is not a necessary party as no relief has been claimed against her nor the controversy involved in the proceedings relates to share of applicant Janki Devi. Otherwise also, the decree can be effectively passed against her brothers the sellers who have been impleaded as patties. He has placed reliance on the Judgment of the Supreme Court reported in : 2005(1) ACJ 640 (S.C.) : 2005(2) CCC 379 (S.C.) : (2005) 6 SCC 733 - Kasturi Vs. Iyyamperutnal and Ors. While allowing the appeal, the Supreme Court held as under: "The question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. A person is legally interested in the answers to the controversies only if he can satisfy the court that it may lead to a result that will affect him legally. A bare reading of Order 1 Rule 10(2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. Two tests are to be satisfied for determining the question who is a necessary party. Tests are -(l) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. In a suit for specific performance the first test can be formulated in the following manner, that is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract for sale. (Paras 7, 13, 17 and 20) Respondents 1 and 4 to 11 had no direct interest in the suit for specific performance because they are not parties to the contract nor do they claim any interest from the parties to the litigation. Respondents 1 and 4 to 11 are not necessary parties as an effective decree could be passed in their absence as they had not purchased the contracted property from the vendor after the contract was entered into. They were also not necessary parties as they would not be affected by the contract entered into between the appellant and respondents 2 and 3. (Paras 20 and 14) (emphasis is supplied);