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2019 Supreme(AP) 84

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
AKULA VENKATA SESHA SAI, J.
Chackadath Varkey Rainu - Appellant
Versus
Kurmapu Savitri and Ors. - Respondents
CRP Nos. 53, 55 and 177 of 2019
Decided On : 21-06-2019

Advocates Appeared:
For the Appellant : M. Radhakrishna.
For the Respondents: G. Rama Gopal.

Headnote:

Code of Civil Procedure, 1908 – Order I – Rule 10 – Respondent plaintiff file of Additional Senior Civil Judge, and she filed said suit for partition of suit schedule property in 6 equal shares by metes and bounds and allot one such share to plaintiff, four shares to defendants 1 to 4 and one share to 11th defendant permanent injunction restraining defendants and their agents from altering existing physical features of schedule property till partition of schedule property is effected and share of plaintiff is allotted to her by metes and bounds, plaintiff be permitted to ascertain mesne profits by filing separate application and recover same from defendants 1 to 4, permanent injunction restraining defendants and their agents from altering existing physical features of schedule property till partition of schedule property is effected and share of plaintiff is allotted to her by metes and bounds, plaintiff be permitted to ascertain mesne profits by filing separate application and recover same from defendants 1 to 4 –Held, Contention of the learned Counsel for the respondents with reference to Section 52 of the Transfer of Property Act cannot be sustained in the eye of law, It is also pertinent to note in this context that at Paragraph, sale deeds as on today said to have executed by plaintiff and 10th defendant in suit, selling 2/6th of plaint schedule property counter-affidavit filed by respondents 2 to 5, by any stretch of imagination, it cannot be said that petitioner is not proper and necessary to present litigation, Court finds no hesitation to hold that the orders passed by the learned Senior Civil Judge, which are impugned in present revisions, cannot sustained in eye of law – Appeal allowed. (Para 22, 23, 24)

Facts of the case:

Respondent plaintiff file of Additional Senior Civil Judge, and she filed said suit for partition of suit schedule property in 6 equal shares by metes and bounds and allot one such share to plaintiff, four shares to defendants 1 to 4 and one share to 11th defendant permanent injunction restraining defendants and their agents from altering existing physical features of schedule property till partition of schedule property is effected and share of plaintiff is allotted to her by metes and bounds, plaintiff be permitted to ascertain mesne profits by filing separate application and recover same from defendants 1 to 4, permanent injunction restraining defendants and their agents from altering existing physical features of schedule property till partition of schedule property is effected and share of plaintiff is allotted to her by metes and bounds, plaintiff be permitted to ascertain mesne profits by filing separate application and recover same from defendants 1 to 4.

Findings of the court:

Contention of the learned Counsel for the respondents with reference to Section 52 of the Transfer of Property Act cannot be sustained in the eye of law, It is also pertinent to note in this context that at Paragraph, sale deeds as on today said to have executed by plaintiff and 10th defendant in suit, selling 2/6th of plaint schedule property counter-affidavit filed by respondents 2 to 5, by any stretch of imagination, it cannot be said that petitioner is not proper and necessary to present litigation, Court finds no hesitation to hold that the orders passed by the learned Senior Civil Judge, which are impugned in present revisions, cannot sustained in eye of law.

Result: Appeal allowed.

ORDER :

Akula Venkata Sesha Sai, J.

1. Since these three revisions arise out one suit and as they are interrelated, this Court deems it appropriate to dispose of these revisions by way of this common order.

2. The 1st respondent herein is the plaintiff in OS No. 453 of 2006 on the file of the VI Additional Senior Civil Judge, Visakhapatnam, and she filed the said suit for the following reliefs:

    "(a) for partition of suit schedule property in 6 (Six) equal shares by metes and bounds and allot one such share to the plaintiff, four shares to defendants 1 to 4 and one share to the 11th defendant;

(b) for a permanent injunction restraining defendants and their agents from altering the existing physical features of the schedule property till the partition of the schedule property is effected and the share of the plaintiff is allotted to her by metes and bounds;

(c) the plaintiff be permitted to ascertain mesne profits by filing separate application and recover the same from defendants 1 to 4;

(d) for costs of the suit; and

(e) for such other relief or reliefs as the Hon'ble Court deems fit and proper in the circumstances of the case."

3. In the said suit, the petitioner herein filed IA No. 826 of 2018 under the provisions of Order I Rule 10 of the Code of Civil Procedure, 1908, read with Rule 28 of the Civil Rules of Practice for her addition as 2nd plaintiff and for consequential amendments, flowing as a consequence of the same. The 1st respondent filed a counter, expressing consent for allowing the said application. Defendants 2 to 5 filed counter, resisting the said application and the request made therein. The learned VI Additional Senior Civil Judge, Visakhapatnam, by way of an order dated 8.8.2018, dismissed the said application. In CRP No. 177 of 2019, the said order is under challenge. The petitioner herein also filed two un-numbered interlocutory applications, i.e., one under Section 114 and Order XLVII of the Code of Civil Procedure, 1908 to review the order dated 8.8.2018 passed in I.A. No. 826 of 2018 and the second one is under Section 5 of the Limitation Act to condone the delay of 28 days in filing the first application. Both these applications were also dismissed by the learned Senior Civil Judge and against which, CRP Nos. 53 and 55 of 2019 have been filed. Therefore, the fate of CRP Nos. 53 and 55 of 2019 depend on the outcome on CRP No. 177 of 2019. As such, this Court deems it appropriate and apposite to proceed with the adjudication in CRP No. 177 of 2019.

4. Heard Sri M. Radha Krishna, learned Counsel for the revision petitioner, and Sri G. Rama Gopal, learned Counsel for the respondents, apart from perusing the material available on record.

5. It is contended by the learned Counsel for the petitioner that the orders passed by the learned Senior Civil Judge are highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of Order I Rule 10 C.P.C.; that in the event of allowing the application, the same would avert and avoid the multiplicity of the proceedings; that if the application is allowed, there can be a fair and just conclusion and finality and quietus for all the issues; that the petitioner is a proper and necessary party to the litigation; that had the contents of the supporting affidavit been considered by the Court below from proper perspective, the order impugned would not have emanated. In support of his submissions and contentions, learned Counsel for the petitioner places reliance on the following judgments:

    (1) Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and another, AIR 1958 SC 394.

(2) Conugunta Subbarayudu v. Eluri Brahmanandan and others, AIR 1970 AP 211.

(3) Darji Krishna Murthy and others v. M. Shankar Reddy and others, 2014 (5) AID 24.

(4) Raj Kumar v. Sardari Lal and others, 2004 (2) AID 95 (SC) : (2004) 2 SCC 601.

(5) Amit Kumar Shaw and another v. Farida Khatoon and another, 2005 (4) AID 98 (SC) : (2005) 11 SCC 403.

6. Per contra, it is contended by Sri G. R

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