THE HONOURABLE DR.JUSTICE G.RADHA RANI
CIVIL REVISION PETITION NO.2719 of 2023
ORDER:
This Civil Revision Petition is filed by the petitioner who is the proposed defendant No.4 aggrieved by the order dated 09.08.2023 passed by the Principal District Judge, Hanumakonda in I.A.No.225 of 2023 in O.S.No.205 of 2022 (Old O.S.No.141 of 2016) rejecting the prayer of the petitioner to come on record as defendant No.4 in the above suit.
2. The suit was filed by the respondent No.1 - plaintiff seeking declaration that he was the absolute owner of the suit schedule property and for recovery of possession and to direct the defendant No.1 to execute a deed of relinquishment in his favour in respect of suit schedule property and to direct the defendants 1 and 2 to pay damages of Rs.7,00,000/- for their unauthorized occupation over the suit schedule premises and to direct defendant No.3 to make necessary changes in the records maintained by him.
3. The case of the plaintiff was that he was the co-owner of the suit schedule property along with defendant No.1 by virtue of a registered sale deed vide 2 Dr.GRR, J crp_2719_2023 document No.8976 of 2010 dated 01.12.2010 and possession was also delivered to him. The defendant No.1 was the family friend of the plaintiff and she approached the plaintiff and expressed her intention to purchase a property at Hanumakonda. The defendant No.1 had given her consent to invest half of the amount to purchase the suit schedule property. But, thereafter informed that she could not pull up her share amount and requested the plaintiff to contribute her share amount also and promised to contribute her amount later-on. Believing her, the plaintiff got registered the house property jointly in his name as well in the name of defendant No.1. Thereafter, the defendant No.1 dodged the matter. She executed an undertaking in favour of plaintiff on 09.06.2011 admitting that the plaintiff alone paid the entire sale consideration and on the strength of the assurance given by her, she was shown as joint purchaser / vendee in the registered sale deed and she further admitted that the total cost of purchase of the suit schedule property was Rs.26,00,000/- and her liability to contribute half of the amount would be Rs.13,00,000/-. The said undertaking was attested by the witnesses. It was also mentioned in the undertaking that the defendant No.1 would execute a relinquishment deed / release deed in favour of the plaintiff, in case, she failed to comply the promise / undertaking given by her. The defendant No.1 also executed another document on the same day stating that in case she could not pay her half share amount, she would vacate the suit schedule property and if she could not get 3 Dr.GRR, J crp_2719_2023 a suitable house, agreed to pay rent @ Rs.3,500/- per month to the plaintiff till she vacated the same.
3.1. The plaintiff further submitted that he was a physically challenged person and taking undue advantage of the said fact, the defendant No.1 induced him, but was showing hostile attitude subsequently and filed false criminal cases against him. He further submitted that the defendant No.1, to deprive him of the suit schedule property, was trying to bring into existence a registered conveyance in favour of defendant No.2, who was none other than her sister. The plaintiff got issued a legal notice on 12.09.2016 and demanded defendant No.1 to execute a relinquishment deed as per the undertaking given by her. The defendant No.1 got issued a reply notice dated 29.09.2016 stating that the plaintiff had relinquished his half share in the suit schedule property through an unauthorized document dated 02.04.2013 by receiving the amount from defendant No.1. The plaintiff contended that defendant No.1 fabricated the alleged document and forged the signature of the plaintiff as if the plaintiff had relinquished his rights in the suit schedule property. The plaintiff further submitted that defendant No.1 executed a registered sale deed in favour of defendant No.2 on 26.08.2016 vide document No.11657 of 2016. The plaintiff filed his objections before the Deputy Registrar, Warangal to cancel the said sale deed which was executed by fraud. As the Deputy Registrar, 4 Dr.GRR, J crp_2719_2023 Warangal had also not taken any action for cancellation of the registered sale deed executed by defendant No.1 in favour of defendant No.2, the plaintiff filed the above suit to declare that he was alone the absolute owner of the suit schedule property and the defendants 1 and 2 had no manner of right and for consequential relief of recovery of possession from defendants 1 and 2 and for other reliefs.
4. The defendant No.1 filed written statement submitting that by virtue of registered sale deed document No.8976 of 2010 and the relinquishment deed executed by the plaintiff by receiving an amount of Rs.8,00,000/- on 02.04.2013, the defendant No.1 was in possession of property from the date of purchase and became absolute owner and she had every right to dispose the said property and the sale deed document No.11657 of 2016 between defendants 1 and 2 was bonafide and genuine one. The relinquishment document dated 02.04.2013 was not a forged document. The plaintiff was estopped to challenge the registered sale document No.11657 of 2016 without challenging the relinquishment document dated 02.04.2013. The plaintiff could not demand defendant No.1 to execute the relinquishment deed since the document dated 09.06.2011, the undertaking document was barred by limitation. The plaintiff was not entitled for recovery of possession.
5. The defendants 2 and 3 remained ex-parte.
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6. The plaintiff examined himself as PW.1 and got marked Exs.A1 to A16. The defendant No.1 failed to cross-examine PW.1. The plaintiff also got examined PW.2 on 12.10.2022. The defendant No.1 failed to cross-examine PW.2 also. But defendant No.1 filed I.A.No.1465 of 2022 for de-exhibiting Ex.A6 and the said I.A. was dismissed by the trial court on 25.01.2023.
7. While the matter was at that stage, the proposed party filed the petition under Order I Rule 10(2) of CPC read with Section 151 of CPC seeking permission to come on record as defendant No.4 contending that he purchased the suit schedule property vide registered sale deed dated 20.08.2018 from defendant No.2 for a valid sale consideration of Rs.33,50,000/-. He acquired right and interest in the schedule property and his participation was essential for final adjudication of the dispute between the parties. The defendants 1 and 2 were not the owners and they were not in possession as on the date of filing of the suit. The suit was collusive. All the parties suppressed the fact of his rights in the suit schedule property.
8. The respondent No.1 - plaintiff filed counter contending that the defendant No.2 - vendor was none other than the natural mother of the petitioner. The petitioner created the self-styled document of registered sale deed in collusion with defendants 1 and 2 to knock away the suit schedule property by playing fraud. The 6 Dr.GRR, J crp_2719_2023 suit was filed on 13.11.2016. The defendant No.1 was contesting the suit by engaging advocate on her behalf. The petitioner got sufficient knowledge about the pendency of the suit. Despite the same, he created the registered sale deed for their wrongful gain. The allegation of the petitioner that, he came to know that on 05.02.2022 some unknown persons came to his property and threatened the petitioner to vacate the premises was not correct. No complaint was filed by the petitioner with the Police against the respondent - plaintiff. If he threatened the petitioner, the petitioner could have initiated appropriate legal steps available under law. The ignorance pleaded by the petitioner that he had no knowledge about the filing of the suit by the respondent - plaintiff was not correct as the petitioner as well as the respondents 2 and 3 were close blood relatives.
9. The trial court on considering the contentions of both sides, dismissed the petition observing that the alleged purchase of property by the proposed defendant No.4 was subsequent to the filing of the suit in the year 2016. The defendant No.1 was none other than the mother of proposed defendant No.4. The proposed defendant No.4 was not a proper and necessary party and his presence was not required for effective disposal of the suit. The plaintiff was the master of his suit and he could not be compelled to proceed against the party against whom he was not intending to proceed. No prejudice would be caused to the proposed party as 7 Dr.GRR, J crp_2719_2023 the person from whom he alleged to have purchased the property was very much on record as defendant No.2.
10. Aggrieved by the said dismissal of the petition, the petitioner - proposed party filed this revision petition contending that the reasoning of the trial court was erroneous, perverse, unjust and unsustainable. The petitioner stated that he purchased the suit schedule property under registered sale deed from defendant No.2 for valid sale consideration and was in possession and enjoyment of the same, as such he was a proper and necessary party. Once, the petitioner primafacie established that he accrued right and title over the property under a valid document, the court below ought to have allowed him to come on record. The court below failed to appreciate that no prejudice would be caused to the plaintiff, if the petitioner was impleaded.
11. Heard the learned counsel for the petitioner - proposed defendant No.4 and the learned counsel for the respondent - plaintiff.
12. The suit was filed by the plaintiff seeking declaration that he was the absolute owner of the suit schedule property and for recovery of possession and also seeking a direction to defendant No.1 to execute a deed of relinquishment in his favour as per the written undertaking given by defendant No.1. 8
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13. The contention of the petitioner was that he purchased the property by registered sale deed from defendant No.2 on 20.08.2018 i.e. subsequent to the filing of the suit. As rightly observed by the trial court, the plaintiff was the master of the suit and it is for him to choose against whom he intended to proceed with.
14. The learned counsel for the respondent - plaintiff also relied upon the judgment of the Hon'ble Apex Court in Gurmit Singh Bhatia v. Kiran Kant Robinson and Others 1, wherein basing upon its earlier judgment in Kasturi v. Iyyamperumal[(2005) 6 SCC 733], it was held that:
"the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. In a suit for specific performance the first test that can be formulated is, to determine whether a party is a necessary party, there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract to sell. A proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. The parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible.
A third party or a stranger cannot be added in a suit for specific performance, merely in order to find out 1 (2020) 13 SCC 773 9 Dr.GRR, J crp_2719_2023 who is in possession of the contracted property or to avoid multiplicity of the suits. A third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character.
In view of the principle that the plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsion of the rule of law. Merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. In a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. If the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party defendants in such suit. Therefore, considering the decision of this Court in the case of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original defendant no.1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs.
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Dr.GRR, J crp_2719_2023 Position will be different when the plaintiff submits an application to implead the subsequent purchaser as a party and when the subsequent purchaser opposes such an application for impleadment. This is the distinguishing feature in Robin Ramijibhai Patel [(2018) 15 SCC 614] and ShriSwastik Developers [(2013) SCC OnLineBom 897]."
15. Considering the judgment of the Hon'ble Apex Court in the above case as well as the fact that the petitioner - proposed defendant No.4 is none other than the son of defendant No.1 and defendant No.2 was his mother's sister and he purchased the property from defendant No.2 and as the proposed party who purchased in 2018 could not challenge or contend that the transfer in 2013 was fraudulent or not and the principle of Lis Pendens under Section 52 of the Transfer of Property Act, 1882 is applicable to the facts of the case and the vendor of the petitioner was a party to the suit and the rights of the petitioner are subservient to the rights of the vendor and he could not claim more than what his vendor could claim, this Court does not find any illegality or material irregularity in the order of the trial court to set aside the same.
15. In the result, the Civil Revision Petition is dismissed confirming the order of the learned Principal District Judge, Hanumakonda in I.A.No.225 of 2023 in O.S.No.205 of 2022 (Old O.S.No.141 of 2016). No order as to costs. 11
Dr.GRR, J crp_2719_2023 As a sequel, miscellaneous applications pending in this revision petition, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J Date: 17.10.2023 Nsk.