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ANDHRA PRADESH HIGH COURT AT AMARAVATHI
D. Ramesh, J.
Mareddy Venkateswarlu - Appellant
Versus
Bondili Lakshmi Bhai Died - Respondent
Civil Revision Petition No. 388 of 2020
Decided On : 18-08-2021
IMPLEADING THIRD PARTY IN PARTITION SUIT - ORDER I RULE 10 CPC - PRELIMINARY DECREE - FINAL DECREE - NECESSARY PARTY - SCOPE OF FINAL DECREE - TRANSFER OF PROPERTY ACT, SECTION 52 - LIS PENDENS PURCHASE - RIGHT TO IMPLEAD - COURT'S DISCRETION - FACTUAL MATRIX.
Fact of the Case:
Petitioner, a third party, sought to be impleaded as a defendant in a partition suit, claiming to be a necessary party affected by the preliminary decree. He had purchased a portion of the suit property from one of the defendants and alleged that he was in possession of the same. The respondents, the plaintiffs in the partition suit, opposed the impleading application, contending that the petitioner was not a necessary party and that the suit property was different from the property purchased by the petitioner.
Finding of the Court:
The court held that while there is no prohibition against passing multiple preliminary decrees, the impleading of a third party after the passing of a preliminary decree is subject to the court's discretion and the determination of whether their rights are affected by the decree. In this case, the court found that the petitioner had knowledge of the pendency of the partition suit and that there was a difference between the schedule of the property purchased by the petitioner and the schedule of the suit property. Additionally, the court noted that the petitioner had filed a separate suit against one of the defendants, which was still pending.
Issues: 1. Whether a third party can be impleaded as a defendant in a partition suit after the passing of a preliminary decree? 2. What factors does the court consider in determining whether a third party is a necessary party to be impleaded? 3. Whether the pendency of a separate suit filed by the petitioner against one of the defendants affects the court's decision to implead the petitioner in the partition suit?
Ratio Decidendi: 1. The court held that while Order I Rule 10 CPC allows for the impleading of necessary parties at any stage of the proceedings, the court has the discretion to determine whether a third party should be impleaded after the passing of a preliminary decree. 2. In determining whether a third party is a necessary party, the court considers factors such as whether the third party's rights are affected by the preliminary decree, whether there is a difference between the schedule of the property purchased by the third party and the schedule of the suit property, and whether the third party has filed a separate suit related to the subject matter of the partition suit. 3. The court held that the pendency of a separate suit filed by the petitioner against one of the defendants did not preclude the court from considering the petitioner's application to be impleaded in the partition suit, but it was a factor to be taken into account in the court's overall assessment of the circumstances.
Final Decision: The court dismissed the petitioner's revision petition, upholding the lower court's decision to dismiss the petitioner's application to be impleaded as a defendant in the partition suit.
JUDGMENT
The Petitioner is the third party and aggrieved by the orders dated 25.11.2019 passed in I.A.No.554/2018 in I.A.No.560/2017 in O.S.No.333/2015 on the file of the Principal Junior Civil Judge, Markapur, Prakasam District, present Revision Petition is filed.
2. The petitioner filed I.A.No.554/2018 in I.A.No.560/2017 in O.S.No.333/2015 to add the petitioner as 16th respondent in I.A.No.560/2017 in O.S.No.333/2015 under Order I Rule 10 CPC. Respondents 1 to 5 filed a suit against the respondent no.6 to 20 for partition of the schedule properties. An extent of Ac.2.44cents in Sy.No.299/3 and an extent of Ac.0.25cents in Sy.No.301/A of Markapur was originally belongs to one Kanala Chinna Venkatamma, D/o Venkata Reddy who purchased the said property under registered sale deed dated 06.02.1949 and obtained possession. Since then she has been in exclusive possession and enjoyment of the said properties. Thereafter one Akula Veesamsetty Mallaiah, purchased an extent of Ac.0.28cents out of Ac.2.44cents in Sy.No.299/3 and an extent of Ac.0.02cents out of Ac.0.25cents in Sy.No.301/A total extent of Ac.0.30cents in the above said survey numbers from one Kaanala Chinna Venkatamma under registered sale deed dated 02.9.1969. From that day onwards Akula Veesamsetty Mallaiah had been in exclusive possession and enjoyment of the same. From the said Akula Veesamsetty Mallaiah, the petitioner has purchased 400sq.yards of site vide registered sale deed dated 05.12.2012 and subsequently the said deed was rectified and the rectification deed dated 01.12.2016 and since then the petitioner was in continuous possession and enjoyment of the said 400sq.yards.
3. While that being the situation, one Bondili Lakshmi Bai filed a collusive suit against respondent no.2 to 10 i.e. O.S.No.333/2015 and subsequently with the collusion of all parties preliminary decree has been passed on 06.01.2017 and they have also filed I.A.No.560/2017 for passing of final decree. The property purchased by the petitioner in the year 2012 is also subject property in the said suit. After knowing about the preliminary decree and filing of I.A.No.560/2017 for passing final decree, the petitioner filed the present I.A. for impleading him as defendant no.16 in the said suit, as he is necessary and affected party.
4. Respondents 1 to 5 filed their counter denying the averments of the petition. They have specifically contended that the alleged vendor of the petitioner i.e. Akula Veesamsetty Mallaiah has no semblance or right or interest over the suit schedule property. The 12th respondent i.e. 12th defendant and this petitioner conspired with each other and fabricated collusive document which is having no legal existence. In fact they have filed suit i.e. O.S.No.333/2015 in the year 2015 and with this connection, after filing the suit with the collusion of 12th defendant, the petitioner has filed a rectification deed and the same was rectified on 01.12.2016 which clearly establishes that the petitioner herein is with the collusion of 12th defendant and only to knock away the property, filed the present petition with a fabricated document. Further they have stated that in fact the petitioner has filed a separate suit and the same is pending before adjudication in the same Court. Hence after passing the preliminary decree, this petitioner has no right to hesitate and to interfere at the stage of passing final decree. When a substantial suit is pending filed by the petitioner, this petitioner is not a necessary party to implead in this suit.
5. Considering the rival submissions, the Court below has dismissed the I.A. filed by the petitioner for impleading him as defendant in the suit. As against the same, the present revision is filed.
6. Learned Counsel appearing on behalf of the petitioner submits that he purchased the property of 400sq.yards from Aakula Veesamsetty Mallaiah under registered sale deed dated 05.12.2012 and subsequently, he erected shop rooms and also established one ice
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