1. Challenge in the original petition is against Exts. P5 and P6 orders passed by the learned Sub Judge. Manjeri in the final decree proceedings of a suit for partition, numbered as O.S. No. 107/11.

2. Petitioner, who was not a party to the suit applied for impleading him as an additional respondent in the final decree proceedings moving Ext. P3 application. He is a Mutawalli of a Jama-ath, a wakf registered under the Wakf Act. Advocate commissioner appointed by the court in the final decree proceedings in the above suit came to inspect the wakf property and attempted to take measurements over such property as if the same was included in the suit and covered by the preliminary decree, was the case canvassed for impleading him as an additional respondent in the above proceedings.

He also moved another application as Ext. P4 to give directions to the advocate commissioner not to carry out measurement of the property till a decision is taken on Ext. P3 application for impleadment. The learned Sub Judge dismissed Ext. P3 application vide Ext. P5 order holding that the petitioner is not entitled to get impleaded in the final decree proceedings placing reliance on Ajitha Dubba Rajam V. Aitha Pochaiah (2007 (3) KLT SN 9 [C No. 10] SC). In view of the dismissal of Ext. P3 application under Ext. P5 order, Ext. P4 application was also dismissed vide Ext. P6 order. Propriety, legality and correctness of Exts. P5 and P6 orders passed by the learned Sub Judge are challenged in this original petition invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India.

3. There is no legal bar as such in impleading a third party in the final decree proceedings, and when an application is moved for such impleadment it has to be adjudged on its merits with reference to the right or Claim canvassed by such party in relation or claim canvassed by such party in relation to the subject matter involved in the suit and covered by the preliminary decree, is the submission of the learned Senior Counsel for the petitioner assailing Exts. P5 and P6 orders passed by the learned Sub Judge as improper and unsustainable. Adverting to the description of B Schedule item No. 1 in Ext. P2, the preliminary decree passed in the suit, showing that such property is shown as a portion of ‘ Panayiapparambu’ with reference to the description over one of the properties covered by Ext. P1 under which the wakf was constituted in favour of the Jama-ath, it is contended that over the property named as Panayiapparambu, at least a portion thereof, a wakf had been constituted. When the petitioner has a case that under the ex parte preliminary decree, the attempt of the plaintiffs is to have a measurement of the wakf property impleadment of the petitioner to show that over the wakf property no such measurement could be carried upon on the basis of the preliminary decree and such decree shall not have any bearing on such property requires to be adjudicated in the final decree proceedings allowing the impleadment of the petitioner applied for, is the submission of the learned Senior Counsel. The learned counsel has also referred to the decisions rendered by this Court in Ammini Ammal v. Krishnan & Ors (1978 KLT 80) and Kochukunju Stephen v. Asia Ummal (2005 (1) KLT 944), with the former among them distinguishing an earlier decision in Vasudeva Kallurao v. Ramachandra Rao (1977 KLT 414) in which a view was taken that in the final decree proceedings no third party can be impleaded, to contend that where it is shown that the impleadment of a party is essential for proper adjudication of the questions involved in the suit, such impleadment even if not applied for before the passing of the preliminary decree, but only in the final decree proceedings that cannot be considered as decisive, and, a decision on such impleadment has to be taken based on the principles of justice and equity and also, the need to avoid multiplicity of suits.