Sanjay Tiwari vs Yugal Kishore Prasad Sao

2025 INSC 1310 Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No…………..of 2025 [@ Special Leave Petition (C) No.11050 of 2025]

Sanjay Tiwari …Appellant Versus

Yugal Kishore Prasad Sao & Ors. …Respondents

JUDGEMENT

K. VINOD CHANDRAN, J.

1. Leave granted.

2. The appellant who is the plaintiff in a suit, is aggrieved

with the order of the High Court, which affirmed the order of

the Trial Court admitting a counter claim by the defendant

Nos.2 and 3, who were subsequently impleaded, on their

application. The counter claim was against the first

defendant; against whom the plaintiff had sought a specific

performance of the very same land; subject matter of the

Signature Not Verified suit. Digitally signed by POOJA SHARMA Date: 2025.11.12 17:40:50 IST Reason: Page 1 of 10 C.A. @ SLP(C) No.11050 of 2025

3. The High Court dismissed the application filed under

Article 227 on the ground of avoiding multiplicity of

litigation, reasoning that the entire issue can be decided in

the suit as to whether the counter claim is maintainable or

not.

4. Heard the learned counsel for the appellant and the

respondents herein. While learned counsel for the appellant

contends that there can be no counter claim against the co-

defendant in a suit filed by him, the defendants who raised

the counter claim pleaded that they may be left liberty to

agitate their cause in appropriate proceedings. Learned

counsel for the appellant specifically relied on the decisions

in Rohit Singh & Ors. v. State of Bihar1 and Rajul Mano

Shah @ Rajeshwari Rasiklal Sheth v. Kiranbhai

Shakrabhai Patel & Anr.2.

5. On the brief facts, it is to be noticed that the plaintiff

filed a suit for specific performance on the contention that

defendant No.1, who was the sole defendant had entered

1 (2006) 12 SCC 734 2 (2025) 10 SCR 152

Page 2 of 10 C.A. @ SLP(C) No.11050 of 2025 into an oral agreement on 02.12.2002 to sell 0.93 acres of

land, more fully described in the plaint. The first defendant,

was the sole defendant impleaded in the plaint filed. The

entire consideration agreed upon was paid on 03.12.2002 by

way of three demand drafts, upon which a receipt was

issued in favour of the plaintiff, promising transfer of the said

land in favour of the plaintiff, which was witnessed by three

defendants, claimed the plaintiff. The plaintiff also asserted

that he was put in possession of the property on which he

had built a boundary wall.

6. The original sole defendant filed a written statement

contending that two others (defendant Nos.2 and 3,

subsequently impleaded) were the persons in possession of

part of the suit property and hence the suit is bad for non-

joinder of the necessary parties. It was claimed that on

01.12.2002, a portion of the very same land, 50 decimals,

was agreed to be transferred to the 2nd and 3rd defendants,

the consideration of which, Rs.2,95,000/- was required to be

paid on 03.12.2002. However, it is also admitted that in the

meanwhile, the 1st defendant due to his financial need sold

Page 3 of 10 C.A. @ SLP(C) No.11050 of 2025 43 decimals of land to the father of the plaintiff for an amount

of Rs.2,55,000/-. There is also an averment that the plaintiff

made payment of Rs.2,55,000/- by demand drafts and 2nd

and 3rd defendants made payment of Rs.2,95,000/- by

deposit in a bank account.

7. As of now, the question of non-joinder of necessary

parties does not arise since the 2nd and 3rd defendants

themselves filed an application for impleadment, which was

allowed, upon which the plaintiff had taken up a challenge

before the High Court, rejected as per Annexure P11.

However, the written statement filed by 2nd and 3rd

defendants assert that their agreement was to purchase the

entire land for Rs.5,50,000/- out of which they have paid

Rs.2,95,000/-. They also raised a counter claim against 1st

defendant that they are entitled to be transferred the entire

land which was allowed to be taken up by the Trial Court

and challenged unsuccessfully before the High Court;

impugned herein.

8. Admittedly, even if the allegation of an agreement of

sale with 2nd and 3rd defendants is accepted, there is no

Page 4 of 10 C.A. @ SLP(C) No.11050 of 2025 contention that the amount agreed upon was paid to the 1st

defendant or that they were always ready and willing to pay

the balance sale consideration. It is also pertinent that in the

written statement filed, the 2nd and 3rd defendants concede

that 43 decimals of land was purchased by plaintiff’s father

and their agreement was confined to purchase of 50

decimals of land. It is the specific case put forth that the area

shown in the receipt was fraudulently changed from 43 to 93

decimals.

9. Rohit Singh (supra) was a case in which the plaintiff

filed a suit for specific performance and possession, against

two defendants. The suit went to trial, the evidence was

closed, arguments concluded and reserved for judgment.

Then the third parties filed an impleading application

claiming right over the suit property by way of a counter

claim, which was allowed by the Trial Court. Though the

plaintiff’s claim was rejected, that of the impleaded

respondents stood allowed against which the defendant

Nos.1 and 2, the Divisional Forest Officer and the State of

Bihar filed an appeal unsuccessfully, which was challenged

Page 5 of 10 C.A. @ SLP(C) No.11050 of 2025 in a second appeal, successfully. The appellants before this

Court contended that the counter claim was maintainable

even if the cause of action put forth by the defendants in the

suit did not arise out of the cause of action based on which

the suit was filed by the plaintiff.

10. The counter claim was rejected by this Court for

multiple reasons, one of which, that it could not have been

raised after the issues are framed and the evidence was

closed. Then, that though a contention was raised regarding

the counter claim, there was not even a prayer seeking a

declaration of title, in which event, there was no counter

claim in terms of Order 8, Rule 6A of the Code of Civil

Procedure, 1908. It was also found that the Trial Court only

treated the written statement as a counter claim and

afforded no opportunity for the defendant Nos.1 and 2 to

effectively contest the same by way of pleadings. Finally, it

was held that a counter claim though can be based on

different cause of action than that are put forth in the suit, it

should be one incidental or connected with that cause of

Page 6 of 10 C.A. @ SLP(C) No.11050 of 2025 action and it has necessarily to be directed against the

plaintiff and cannot be directed against the co-defendant.

11. Rajul Mano Shah (supra) was a case in which the

plaintiff filed a suit against her sister-in-law from alienating

the latter’s portion of the undivided share of a joint family

property in favour of a third party; the second defendant.

The sister-in-law died while the suit was pending, and the

second defendant sought substitution of the original

defendant No.1 with a Court appointed officer which came

to be allowed. The counter claim raised was for specific

performance of the agreement, allegedly executed by the

first defendant and for partition, which prayer of partition

was claimed to be an incidental prayer against the plaintiff

in the suit. This Court found that the claim of specific

performance is independent of the claim of partition, since

the second defendant should first establish a right of claim

over the property, which is absent till he succeeds against

the estate of the first defendant; in which event only the

question of setting up of a counter claim against the plaintiff

by way of a prayer for partition would arise. Page 7 of 10 C.A. @ SLP(C) No.11050 of 2025

12. The said declaration squarely applies in the present

case also. True, if the 2nd and 3rd defendants are in

possession of any part of the property, their impleadment in

the suit is necessary since the plaintiff would also have to

claim recovery of possession in the event of a decree of

specific performance. Now, the 2nd and 3rd defendants

having already been impleaded, the suit does not suffer

from the defect of non-joinder of necessary parties.

13. It also has to be noticed that despite raising a claim for

conveyance of the entire property, the 2nd and 3rd

defendants do not have a concrete case, even for a counter

claim. Their first assertion in the written statement is that

they had agreed to purchase the entire land for

Rs.5,55,000/- against which Rs.2,95,000/- was already paid.

However, they conceded that 43 decimals from the very

same property was agreed to be conveyed by the first

defendant to the plaintiff for consideration of Rs.2,55,000/-.

Their contention is also that the plaintiff had fraudulently

changed the area from 43 decimals to 93 decimals. Their

claim towards the end of the written statement is that, in any

Page 8 of 10 C.A. @ SLP(C) No.11050 of 2025 event 50 decimals of the suit property has to be conveyed to

them based on the part payment made by them for which

there is no agreement. The 2nd and 3rd defendants, hence,

are found to have no concrete claim against the property

and in any event, the impleading application in the suit was

also filed only in the year 2006 after the period of limitation

seeking the claim of specific performance, the cause of

action for which, even according to the defendants, arose on

02.12.2002.

14. As has been held in the decisions cited, the counter

claim against the co-defendant cannot survive and the same

has to be rejected. Impleadment of the 2nd and 3rd

defendants though voluntarily made by themselves, saves

the suit from the defect of non-joinder of necessary parties,

on the ground of possession, even if it is so found. We make

it clear that we have not held on merits regarding the

possession as such and it would be for the Trial Court to

determine the same and if necessary, grant recovery of

possession, if that is sought for by the plaintiff appropriately

in the suit.

Page 9 of 10 C.A. @ SLP(C) No.11050 of 2025

15. We find no reason to leave liberty to the defendants 2

& 3 to file a separate suit at this stage, when the claim would

be grossly delayed, which was hit by limitation even at the

time of filing of the counter claim; which in any event cannot

survive against the plaintiff.

16. The Civil Appeal is hence allowed, and the parties are

left to agitate their cause before the Trial Court, leaving

open all contentions except – that of the counter claim of the

defendants 2 & 3, which stands set aside.

17. Pending application(s), if any, shall stand disposed of.

……..…..……………………. J.

(K. Vinod Chandran)

………….……………………. J.

(N. V. Anjaria)

New Delhi;

November 12, 2025.

Page 10 of 10 C.A. @ SLP(C) No.11050 of 2025