Substituting new owner in appeal against partition decree

Hi,

My mother was a co-owner alongwith 4 other co-owners of an agricultural land in Gurgaon. One co-owner got ex parte partition done at Tehsil against rest of the co -onwners including my mother in Mar 2022. My mother filed an appeal/revision against this ex parte partition decree by Tehsildar at the court of Deputy Commisoner in Jun 2022.

This case is still at appearance stage. In May 2023 my mother transferred her share in the above agricultural land to me (her son) by transfer in blood relation deed.

My queries:

1) Can I substitute myself as the appellant/revisionist in the above case filed by my mother? Would this be decided as per CPC or someother act like Special Relief Act?

2) If I am able to substitute myself - will the notices to defendants be sent again or would the case resume from the stage it is already on?

3) Many months after my mother has filed the appeal - one other co-owner has also filed an appeal against the same ex-parte decree in the same court. Can there be two appeals to the same ex - parte decree? Would the court merge both the appeals?

Asked 2 years ago in Property Law

Religion: Hindu

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7 Answers

during pend ency of any suit regarding title of a property, any new interest in respect of that property should not be created....

2) n the Supreme Court decision of Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403 it was held that a transferee pendente lite cannot claim his addition in the pending suit as of right, though the Court has the discretion to make him a party, he can be added as a proper party only if his interest in the subject matter of the suit is substantial and not just peripheral....

3) both the appeals would be clubbed together

Ajay Sethi

Advocate, Mumbai

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1. Your mother can file a petition to amend the petition to substitute her son as plaintiff owing to her ailments to continue the case. In that case she can file a petition under order 3 rule 2 cpc to represent her through an authorised representative

2. Any application to be filed by plaintiff has to be informed to the other parties of the litigation by serving them notice with a copy of the petition.

3. There is no infirmity in it.

Thus there may be two appeals against the same decree; one by the plaintiff and the other by the defendant. They are known as "cross-appeals". Both these appeals will be disposed of together. He may not file an appeal against the part of the decree passed against him but may take objection against that part.

T Kalaiselvan

Advocate, Vellore

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1. Yes, since you have stepped in her shoes. File a substitution application and annex with it the conveyance deed executed in your Favour by your mother.

2. From the stage where it is at the moment.

3. Yes, cross appeals. The Court should mostly tag both the appeals together and hear them together.

Vibhanshu Srivastava

Advocate, Lucknow

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1. You can move an application under order 1, R. 10 of the CPC before the said court for addition/substitution of plaintiff , after submitting the documents for transfer in your name.

2. Yes, a notice will be issued to the defendant , and the court may seek reply of this application from the defendants

3. Since, there is two separate parties who declared ex-parte decree , hence there are two appeals.

Mohammed Shahzad

Advocate, Delhi

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1. Yes

2. If a party is added then all the documents need to be served to him and his say or reply is taken on record

3 It will be decided on merits in combined hearings

Prashant Nayak

Advocate, Mumbai

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Dear Client
Substitution of Appellant/Revisionist:
In cases like this, where your mother transferred her share in the agricultural land to you, it might be possible for you to substitute yourself as the appellant/revisionist. The procedure for substitution would typically be governed by the Civil Procedure Code (CPC) or other relevant laws. You should consult with a legal expert to understand the specific requirements and procedures for substitution in your case.

Effect on Notices:
If you are allowed to substitute yourself as the appellant/revisionist, the court may issue fresh notices to all parties involved, including the defendants. However, this can vary depending on the specific circumstances and the discretion of the court. The court may also consider the stage the case is at and whether there is a need to start the proceedings afresh or continue from the existing stage.

Multiple Appeals:
In general, there can be multiple appeals against the same ex-parte decree, especially if different parties are affected by the same decree. Whether or not the court will merge these appeals depends on the court's discretion and the specific facts of the case. The court may choose to consolidate or hear them separately, depending on the interests of justice.

To navigate these legal matters effectively, it is crucial to consult with an experienced lawyer who can assess the current status of your case, review the relevant laws, and provide you with the most accurate information