CS/5028/1992 1/6 ORDER

Civil Suit No.5028 of 1992

Learned Advocate Ms. K.R. Shah, for the plaintiffs.

Learned Advocate Shri Sapan Shah, for the defendant

No.4.
rd
Learned Advocate Shri Sapan Shah, for the 3
parties.

Order Below Exh.40:-

1. Read this applicant, it's reply at Exh.48.

Perused the record of the case. Heard the
learned advocates' for the parties.

2. Plaintiffs have filed this suit contending that

they are enjoying the possession of the suit
property as an owner openly, adversely and to
its entirely to the knowledge of the original
owner continuously and without interruption
since 1968. It is stated by them that the
defendants are exercising threats to disturb the
possession of the plaintiffs. Therefore, a
relief for permanent injunction is sought for by
the plaintiffs. Subsequently, an amendment
application at Exh.26 was moved by the
plaintiffs, which was allowed and as per the
order of the Hon'ble Court, plaintiffs have
added prayer, which is mentioned as A1 In this
suit. By this prayer, they have sought for
relief that plaintiffs should be declared that
CS/5028/1992 2/6 ORDER

they have become absolute owner of the suit

property by way of adverse possession.

3. Summons of suit was served to the defendant

Nos.4 and 5. The defendant No.4 filed a reply to
the suit. During the pendency of the suit, it
came to the notice of this Court that defendants
Nos.1 to 3 were died before many years. So, this
suit is abated against them. Then, plaintiffs
have given their oral evidence. Right of
defendants to cross-examine the plaintiffs was
closed. Thereafter, when the matter was kept for
evidence of the defendants, defendant No.4 has
filed one purshis contending that he has
appointed four new persons as trustees of trust
as per the terms of Will. He has produced a copy
of Will along with his purshis. On the same day,
these four persons i.e. the third parties have
moved this application seeking to be joined them
as parties to the suit.

4. It is contended by the third parties that they

have been appointed as trustees of the trust as
per the terms of Will. They have produced a
letter written to them by defendant No.4. It is
stated by them that defendant No.4 is very old
and defendant No.5 remains sick. So, he has
given resignation. Therefore, third parties have
filed this application to be joined as
defendants in the suit. They have stated that if
they are not joined in the suit, rights of
CS/5028/1992 3/6 ORDER

beneficiaries will be seriously affected. So,

they have requested to join them as the parties
of the suit. The third parties have given
similar application at Exh.45.

5. In their reply, plaintiffs have stated that this

application is not legal and valid. It is false
and frivolous. It is further stated by the
plaintiffs that defendant No.4 has no right to
appoint any persons as trustees of the trust.
The third parties and defendant No.4 are in
collusion with each other. Moreover, the Will
produced by defendant No.4 is not registered
one. Defendant No.4 has not obtained any probate
of the Will. Therefore, he is not authorized to
appoint anyone as trustees of the trust.
Moreover, the trustees can never be a
beneficiaries. Therefore, they have no right,
title or interest over the suit property.
Therefore, they are not entitled to get any
relief as prayed in this application to implead
themselves as defendants in this suit. This
application is suffered by delay, latches and
acquiescence. So, it is requested by the
plaintiffs to dismiss this application.

6. Learned Advocate Ms. K.R. Shah has raised

similar contentions in her arguments which has
been raised by her in her reply to the third
parties application. Learned Advocate Ms. K.R.
Shah has further submitted if this application
CS/5028/1992 4/6 ORDER

is allowed, right of the plaintiffs will be

seriously prejudiced. It is further submitted by
her that a person cannot established his right
in a Court of law so long as probate of the Will
is not guaranteed in his favour by the Court of
competent jurisdiction. In support of her say,
she has produced a citation in case of Kanhialal
v. State, reported in AIR 1980 ORISSA 27 and
another citation of Hon'ble Supreme Court in
case of Hem Nolini v. Isolyne Sarojbashini,
reported in AIR 1962 1471. Learned Advocate for
the plaintiffs has submitted that this
application has been preferred just to delay the
proceedings. So, it is required to be dismissed
with the costs.

7. Learned Advocate for the third parties Mr. Sapan

Shah has contended that where the executor of
Wills are Hindus and the Wills relate to
immovable properties situated outside the cities
of Calcutta, Madras and Bombay, probate is not
required for establishing title to immovable
property. In support of his say, he has produced
a case of Minaxiben S. Patel v. Dist. Collector
reported in Vol. XLVIII(1) GLR 277.

8. Learned Advocate for the plaintiffs have stated

that this judgment is not applicable to the
facts of the present case.

9. According to me, at this stage, I have not to

CS/5028/1992 5/6 ORDER

consider the question that whether the Will is

genuine or not, whether the probate is required
to be obtained by the third parties. I am not
required to deal with the contentions raised by
the learned Advocate for the plaintiffs narrated
in her reply of the third parties application at
this stage. Therefore, I am not expressing any
opinion in respect of the merits of the case. At
this stage, I have to consider the question only
that whether the third parties have been able to
make out the case that they are required to be
joined as parties to the suit. I am of the
opinion that the third parties have prima-facie
case to be joined in the suit as defendants.
Therefore, application submitted by the third
parties is required to be allowed.

10.According to me, if this application is

allowed, no prejudice would be caused to the
plaintiffs because plaintiffs would have ample
opportunity to cross-examine the evidence of the
third parties. According to me, if third parties
are entered in the suit, nature of the suit
would not be changed i.e. no new case would be
made out. Therefore, this application should be
allowed. In view of the above facts and
circumstances of the case, the following order
is required to be passed. Hence, I pass the
following order:-
CS/5028/1992 6/6 ORDER

O R D E R

This application is hereby allowed.

The applicants of this application are entitled

to be joined as defendant Nos.6 to 9 as prayed in the
application.

Applicants shall amend the suit within the

period of 10(ten) days from the date of this order.

On making amendment by the applicants,

plaintiffs shall produce the copy of amended plaint.

Cost will follow the result of the suit.

Pronounced in the open Court on this 29 th day of

April 2009.

Date :29/04/2009 (V.C. Barot)

Judge - Court No.25
City Civil Court,
Bhadra,Ahmedabad.