S. Chandrashekhar, J. - (1.) AGGRIEVED by order dated 26.5.2012 in Title Suit No. 7 of 2011, the present writ petition has been filed. The petitioners claiming right, title and interest over the suit property through registered sale -deed dated 24.3.2011 filed application under Order I Rule 10 CPC seeking their substitution in place of deceased plaintiff namely, Mosmat Balia.
(2.) TITLE Suit No. 7 of 2011 was instituted by Mosmat Balia seeking a declaration that sale -deed No. 3975 dated 26.6.2010 executed by defendant Nos. 1 & 2 in favour of defendant Nos. 3 to 7 with respect to Schedule -B land was illegal, void and not binding upon her. The plaintiff also challenged gift -deed dated 7.9.1999 with respect to Schedule -A land being illegal and void. The plaintiff denied that gift -deed dated 7.9.1999 executed by her in favour of the defendant Nos. 1 & 2 was ever given effect and that defendant Nos. 1 & 2 never came in possession of the Schedule -A land by virtue of the gift -deed. The defendants contested the suit by filing written statement on 21.7.2011. The plaintiff -Mosmat Balia died issueless on 22.4.2012. Thereafter, the petitioners claiming themselves purchaser from plaintiff namely, Mosmat Balia filed application dated 2.5.2012 under Order I rule 10 read with Section 151 CPC which has been dismissed on 26.5.2012. Aggrieved, the petitioners have approached this Court. The learned counsel for the petitioners submits that by virtue of sale -deed dated 24.3.2011, the petitioners have acquired vital right in the suit schedule property and therefore, they are necessary parties in Title Suit No. 7 of 2011. It is submitted that in the suit execution of validity of gift -deed dated 7.9.1999 has been challenged and since land purchased by the petitioners is the subject matter of the gift -deed, if Title Suit No. 7 of 2011 is permitted to be abated, the petitioners' title would be clouded. Since the vendor namely, Mosmat Balia has no legal heir and successor, if the petitioners are not permitted to contest Title Suit No. 7 of 2011, they would suffer irreparable loss and injury.
(3.) I find that the petitioners have claimed interest in the suit schedule property by virtue of registered sale -deed dated 24.3.2011 and Title Suit No. 7 of 2011 was instituted on 25.3.2011. Previously the vendor of the petitioners namely, Mosmat Balia executed gift -deed dated 7.9.1999 in favour of the defendant Nos. 1 & 2 with respect to Schedule -A land. Though, the suit was filed the date after executing the sale -deed in favour of the petitioners, the plaintiff did not implead petitioners as defendants in the said suit. The petitioners have not disclosed the date and source of information of filing of the Title Suit No. 7 of 2011 to them. The petitioners filed application under Order I Rule 10 CPC after the death of the plaintiff. In the sale -deed dated 24.3.2011 there is recital that absolute possession of the property has been delivered to the petitioners. Whereas, it appears that defendant Nos. 1 & 2 were in possession of the suit property at that time. The petitioners have failed to aver and they have also not produced any evidence to disclose that they were put in possession of Schedule -A land on 24.3.2011. The aforesaid facts create serious doubt on genuineness of the transaction which culminated into execution of sale -deed dated 24.3.2011. From the averment in the plaint, it is noticed that by virtue of gift -deed, the defendant Nos. 1 & 2 executed sale -deed dated 26.6.2010 in favour of the defendant Nos. 3 to 7. It appears that Title Suit No. 7 of 2011 was purposely instituted with a view to lend legality to registered sale -deed dated 24.3.2011. Moreover, the petitioners are not claiming themselves legal heir and successor of the plaintiff namely, Mosmat Balia and therefore, application under Order I Rule 10 CPC seeking their transposition in place of plaintiff was not maintainable. The petitioners have claimed that they are in possession of the Schedule -B land. The petitioners thus, are claiming independent right over the Schedule -B land by virtue of sale -deed dated 24.3.2011. In Title Suit No. 7 of 2011 the validity of the gift -deed dated 7.9.1999 is under challenge. The petitioners were not privy to the said adoption deed and thus, they cannot lead evidence challenging validity of the gift -deed dated 7.9.1999. The Trial Judge has rightly observed that the petitioners were aware of institution of suit and they were watching the proceeding, still, they did not seek their impleadment during the lifetime of Mosmat Balia. No application under Order XXII Rule 4(A) CPC has been filed in Title Suit No. 7 of 2011. The Trial Judge in order dated 26.5.2012 has observed that the findings and discussions in the said order would not restrict or debar the petitioners from seeking remedy, in accordance with law. The grievance raised on behalf of the petitioners that while deciding application under Order I Rule 10 CPC, the Trial Judge could not have dismissed the suit as abated, is misconceived. The petitioners have not challenged the fact that on account of death of the plaintiff -Mosmat Balia, Title Suit No. 7 of 2011 shall abate because the plaintiff -Mosmat Balia has no legal heir and successor who can claim interest in the suit property. Considering the aforesaid facts, I am not inclined to interfere with the impugned order dated 26.5.2012 and accordingly, the writ petition is dismissed. Let a copy of this order be transmitted to the concerned Court through 'FAX'.;