Telangana High Court
Sri Katta Komal Vadhan, vs Sri Katta Hrudaya Ranjau Babu on 26 February, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CIVIL REVISION PETITION No.676 OF 2023
ORDER:
This Civil Revision Petition is filed by the revision petitioner/defendant No.3 aggrieved by the order dated 10.01.2023 in I.A.No.28 of 2022 in O.S.No.1355 of 2012 passed by the learned VI Senior Civil Judge, City Small Causes Court, Hyderabad.
2. I.A.No.28 of 2022 was filed by defendant No.2 in O.S.No.1355 of 2012 under Order I Rule 10(2) read with Section 151 of Code of Civil Procedure, seeking permission to transpose him as plaintiff No.2 in O.S.No.1355 of 2012 and to contest the same. In I.A.No.28 of 2022, defendant No.2 stated that respondent No.1 herein by name Marri Parvathamma filed suit in O.S.No.1355 of 2012 seeking declaration of title, recovery of possession and consequential perpetual injunction against the defendants including revision petitioner herein. In the said suit, defendant No.2 filed written statement contesting the matter. It is further stated by defendant No.2 that during pendency of the suit, the sole plaintiff died on 23.07.2022 issueless and during the life time of the husband of the plaintiff, who was the original owner, 2 SKS, J C.R.P.No.676 of 2023 bequeathed the suit schedule property to him under registered Will Deed vide document No.23 of 1990, dated 27.01.1990 and the said fact came to his knowledge when he got copy of the said Will Deed and thereafter, he obtained certified copy of the same as original of the said Will Deed is not in his custody. It is further stated that the husband of the plaintiff died on 19.09.2001 and in view of his death, the will deed came into force, the same was acted upon and the petitioner being beneficiary under the will, he is in possession of the property and enjoying the same as absolute owner. Defendant No.2 being the legatee under the will and the cause of action still survives, sought permission to step into the shoes of deceased plaintiff to contest the suit on merits by transposing him as plaintiff No.2 in the suit.
3. The revision petitioner herein, who is defendant No.3 in O.S.No.1355 of 2012, filed counter in I.A.No.28 of 2022 denying the execution of registered will deed by the husband of the plaintiff and submitted that the petitioner cannot be allowed as plaintiff No.2 in the suit since defendant No.2 had filed his written statement and prayed to dismiss the suit by imposing exemplary costs of Rs.1,00,000/- against the plaintiff and now, defendant No.2 is taking a contrary stand, which itself is a 'self-contradictory pleading'. It is also submitted that defendant No.2, who is 3 SKS, J C.R.P.No.676 of 2023 examined as DW-1, admitted the genuineness of gift settlement deed in his cross-examination. Further, the title over the present suit schedule property was already decided on 25.08.2012 in O.S.No.749 of 2011 on the file of II Additional Chief Judge, City Civil Court, Hyderabad, and on considering such aspect the present petition is liable to be dismissed. Defendant No.3 further submitted that as per Ex.A-5, the suit schedule property was registered in the name of plaintiff's husband vide document No.4144 of 2000 dated 22.12.2000 and that he was legally owner of the suit schedule property and the property can transferred by plaintiff's husband only after the date of such document i.e. 22.12.2000, whereas, the petitioner herein is claiming title over the suit schedule property as per the registered will deed dated 27.01.1990 i.e. the date when the plaintiff's husband was not owner of the property legally. As such, defendant No.3 prayed the Court to dismiss the petition.
4. Considering the contents of petition and counter and after hearing both sides, the learned trial Judge came to conclusion that defendant No.2 can be transposed as plaintiff as he has same interest in the property.
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SKS, J C.R.P.No.676 of 2023
5. Challenging the same, present Civil Revision Petition is filed by the petitioner/defendant No.3 contending that the trial Court erred in allowing the petition as defendant No.2 filed written statement denying the averments of the plaint and also in his cross-examination as DW-1, he admitted the genuineness of the gift deed executed in favour of defendant No.1. Therefore, his interest is not common with that of plaintiff. Therefore, the order under challenge is against the settled principles of law and he also relied on the Judgment of the Hon'ble Supreme Court in SLP (C) No.16533 of 2015, which confirmed the Judgment of Hon'ble Orissa High Court on 16.07.2015 in the case of Piyush Hasmukhlal Desai vs. International Society for Krishna Consciousness (ISKCON) dated 08.01.2015, wherein it was held that "transposition of defendant as plaintiff can be made only when the defendant has some interest in common with that of the plaintiff. A proforma defendant can be transposed as plaintiff only when interest and identity are same between the plaintiff and one or more of the defendants. A person, whose interest is adverse to the plaintiff, cannot be permitted to be transposed as plaintiff."
6. Heard Sri C.Vikram Chandra, learned counsel for the revision petitioner, as well as Ms.I.Maamu Vani, learned counsel 5 SKS, J C.R.P.No.676 of 2023 for respondent No.1/defendant No.2. Perused the material available on record.
7. Learned counsel for the revision petitioner/defendant No.3 would submit that the trial Court without going into the merits of the case and without observing that whether the interest of defendant No.2 is sailing with the interest of the plaintiff, allowed defendant No.2 to transpose as plaintiff No.2 in O.S.No.1355 of 2012, which is against the principles of law. Therefore, prayed the Court to set aside the order of the trial Court by allowing the Civil Revision Petition.
8. On the other hand, learned counsel for respondent No.1/defendant No.2 would submit that as defendant No.2 is having some interest in the suit schedule property, it cannot be said that the transposition is not in accordance with law. Hence, prayed the Court to dismiss the Civil Revision Petition.
9. Having heard the rival submissions and a perusal of material on record, it would indicate that respondent No.1 herein, who is the petitioner/defendant No.2 in I.A.No.28 of 2022, filed said application under Order I Rule 10(2) read with Section 151 of C.P.C., praying the Court to transpose him as plaintiff No.2 in O.S.No.1355 of 2012. Originally, the suit vide O.S.No.1355 of 6 SKS, J C.R.P.No.676 of 2023 2012 was filed by the plaintiff against defendant Nos.1 to 3. Defendant No.1 is brother of the plaintiff and defendant Nos.2 and 3 are sons of defendant No.1. The contention of the plaintiff in the said suit is that the property under dispute was acquired by her husband and as they are issueless, the property was given to defendant No.1 to look after the property. Defendant No.1 falsely fabricated the gift deed in his favour against the interest of the plaintiff, as such, the plaintiff filed the suit for cancellation of said gift deed. During the course of trial, the plaintiff died and defendant No.2 in the said suit filed petition seeking permission to transpose him as plaintiff No.2 stating that he came to know that the husband of the plaintiff executed a will deed in his favour dated 27.01.1990 and the said fact came to his knowledge recently, as such he obtained a copy of the will deed. Therefore, he has interest in the suit schedule property, as such, he prayed the Court to transpose him as plaintiff.
10. Transposition of the parties arises generally in a suit for partition as in the suit for partition each party is having interest in the suit schedule property. Apart from that in a suit for declaration of title, defendant No.2 filed a petition under Order I Rule 10(2) read with Section 151 C.P.C., who denied the averments of plaint by filing written statement against the plaintiff 7 SKS, J C.R.P.No.676 of 2023 and he also prayed the Court to dismiss the suit of the plaintiff by imposing exemplary costs of Rs.1,00,000/- now, he is taking a contrary stand and contradictory pleadings. It is not the case of defendant No.2 that he acquired the property through the gift deed. The alleged will deed has not come into the light when the plaintiff was alive and the interest of defendant No.2 is different basing on the different document. The interest of defendant No.2 is not the same as that of the plaintiff in O.S.No.1355 of 2012. Therefore, transposing defendant No.2 as plaintiff No.2 is not proper and the trial Court ought to have dismissed the application that was filed by defendant No.2.
11. Thus, in the light of the foregoing observation made, the Civil Revision Petition is allowed. The order that was rendered by the Court of VI Senior Civil Judge, City Small Causes Court, Hyderabad, in I.A.No.28 of 2022, dated 10.01.2023 is set aside. Consequently, the said Interlocutory Application is dismissed. There shall be no order as to costs.
12. Pending Miscellaneous Applications, if any, shall stand closed.
______________ K.SUJANA, J Date: 26.02.2024 svl