@JUDGMENTTAG-ORDER
A.K. Awasthy, J.@mdashThe appellant/defendant No. 1 has filed the Misc. Appeal under Order XLIII Rule 1 of the CPC (hereinafter referred to as "the Code") against the order dated 24-7-2003 passed in Civil Regular Appeal No. 10-A/2003 by learned XVIIIth Additional District Judge (Fast Track Court), Indore, whereby the judgment and decree dated 8-9-2000 passed in Civil Suit No. 255-A/1999 by learned 1st Civil Judge, Class-II, Indore, was set aside and the case was remanded to the Trial Court for retrial after impleading the two sisters of the appellant as a party in the suit under Order I Rule 10 of the Code.
2. The admitted facts of the case are that respondent Nos. 1 and 2/plaintiffs are the wife and son of Badrilal. That Badrilal and appellant/defendant No. 1 Sukhram are the real brothers. It is also not in dispute that the suit property is ancestral and situated in Village Piplya, Tehsil & District Indore and that the defendant No. 1 is in possession of the alleged ancestral property.
3. The case of the plaintiffs is that the whereabouts of Badrilal is not known from more than 7 years and on account of his civil death, the plaintiffs have become the owner of the suit property alongwith the defendant No. 1 Sukhram. That the defendant No. 1 Sukhram is in unauthorized possession of the share of the plaintiffs and as such the plaintiffs are entitled for the possession and the mesne profits at the rate of Rs. 25,000.00 per annum.
4. The case of defendant No. 1 is that the suit property is ancestral and the defendant is in possession of the suit land as the Bataidar of Badrilal and he has become the owner of the entire suit property. That Badrilal is alive and he was seen in the village within 7 years and as such the contention of the plaintiffs of the civil death of Badrilal is false. The defendant No. 1 has further alleged that Badrilal and defendant Sukhram are having two sisters who are the necessary party in the case and as such the suit is not maintainable without impleading them as a party.
5. The learned Trial Court has held that the suit is not maintainable on account of the fact that the plaintiffs have not impleaded the necessary party and plaintiffs have failed to prove their case. The learned Lower Appellate Court has remanded the case for deciding the application of the plaintiffs under Order I Rule 10 of the Code and it was directed by the learned Lower Appellate Court that the sisters of Badrilal and Sukhram, i.e., Gitabai and Chhitabai are the necessary party in the suit relating to their ancestral property.
6. The appellant/defendant No. 1 has challenges the impugned order on the ground that the learned Lower Appellate Court has failed to appreciate the fact that the plaintiffs after having an opportunity to add the party in the Trial Court, did not make an application to implead the alleged sisters as a party and as such the order of the learned Lower Appellate Court of remanding the case for impleading the alleged sisters as a party is bad-in-law.
7. The learned Counsel for the appellant has relied in a case of
8. In the case of Kanakarathanammal (supra), the Apex Court has rejected the application to implead the necessary party on the ground that the application was not filed by the plaintiff in the Trial Court, although plea of non-joinder was raised in the Trial Court itself and that the plaintiff has failed to make an application to implead them as a necessary party in High Court in appeal and that even in the Supreme Court no application for amendment to implead the party was made. The aforesaid case is distinguishable with the case in hand wherein the application to implead as a party was made by the plaintiffs in the First Appeal, although the plea of non-joinder was raised in the Trial Court. Admittedly the suit property is ancestral property and in a suit for possession between of the heirs, the other heirs are also necessary party, particularly in a case where the suit between of the heirs is filed for the possession of the ancestral property against another heir. This fact was rightly not disputed by the learned Counsel for the appellant that the alleged sisters are the necessary party. The only ground of the appellant is that the application for impleading the sisters was filed by the respondents/plaintiffs after inordinate delay and in appeal stage even that the objection to that effect was taken by the defendant in the written-statement. The necessary party under Order I Rule 10 of the Code should be impleaded to avoid the multiplicity of the suit and the learned Lower Appellate Court has rightly allowed the application of the plaintiffs filed under Order VI Rule 17 read with Order I Rule 10 of the Code for impleading the alleged sisters as a party. The appellant/defendant No. 1 is in possession of the land and no injustice or prejudice will be caused to the appellant/defendant if the alleged sisters, who are necessary party, allowed to contest the suit. It is necessary for the full, fair and justice of the case.
9. The appeal is without merit, and it is hereby dismissed.
