Madras High Court
N.Muthurajan vs S.K.Mohammed Hussain (Died) on 3 December, 2021
C.R.P.(PD)Nos.4464 and 4465 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD)Nos.4464 and 4465 of 2014
and M.P.Nos.1 and 1 of 2014
N.Muthurajan .. Petitioner
in both CRPs.
Vs.
1.S.K.Mohammed Hussain (died)
K.R.E.Pattulinga Nataraj (died)
2.K.R.E.Arumugham
K.R.E.Sachidhanandam (died)
3.V.Subramaniam (died)
4.Ruckmani
5.Ruba Reka
6.Ramesh
7.Sujatha
8.Sakunthala
9.Sarojini
10.Loganayagi
11.Saraswathi
1/26
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C.R.P.(PD)Nos.4464 and 4465 of 2014
12.Ashok
13.Arunkumar
14.Thiyagarajan
15.Real Bakery
D.No.400, P.N.Road
Tiruppur
Represented by Partner Baba
16.Sivagami
17.Nandhini
18.S.Parthiban
(RR16 to 18 brought on record as legal
heirs of the deceased R3 viz., V.Subramaniam
vide Court order dated 01.11.2021 made in
C.M.P.Nos.17077 and 17092 of 2021 in
CRP.Nos.4464 and 4465 of 2014)
19.M.Fathima Bibi
20.S.Zareena Begum
21.A.Faritha Begum
22.M.Mohamed Rafi
23.M.Riyajuthin
24.M.Kadhar Batcha
25.M.Mohammed Illiyas
(RR19 to 25 brought on record as legal
heirs of the deceased R1 viz., S.K.Mohammed
Hussain vide Court order dated 01.11.2021
made in C.M.P.Nos.17106 and 17088 of 2021 in
C.R.P.Nos.4464 and 4465 of 2014) .. Respondents
in both CRPs.
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C.R.P.(PD)Nos.4464 and 4465 of 2014
COMMON PRAYER: Civil Revision Petitions filed under Article 227
of the Constitution of India, against the fair and decretal order dated
27.08.2014 made in I.A.Nos.298 and 308 of 2012 in O.S.Nos.115 and
116 of 2012 on the file of the Principal District Court, Tiruppur.
In C.R.P.No.4464 of 2014
For Petitioner : Mr.C.R.Prasanan
RR 1 and 3 : Died
R4 : Died
For RR2, 5 to 7
and 16 to 25 : Mr.Vignesh Venkat
For RR12 and 13 : No appearance
For RR8 to 11,
14 and 15 : Not ready in notice
In C.R.P.No.4465 of 2014
For Petitioner : Mr.C.R.Prasanan
RR 1 and 3 : Died
R4 : Died
For RR2, 5 to 7
and 16 to 25 : Mr.Vignesh Venkat
For RR12 and 13 : No appearance
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C.R.P.(PD)Nos.4464 and 4465 of 2014
For RR8 to 11,
14 and 15 : Not ready in notice
COMMON ORDER
Civil Revision Petitions are filed against the fair and decretal order
dated 27.08.2014 made in I.A.Nos.298 and 308 of 2012 in O.S.Nos.115
and 116 of 2012 on the file of the Principal District Court, Tiruppur.
2. The petitioner is the 1st defendant in O.S.No.115 of 2012 and
plaintiff in O.S.No.116 of 2012 and 1st respondent is the plaintiff in
O.S.No.115 of 2012 and 1st defendant in O.S.No.116 of 2012 on the file
of the Principal District Court, Tiruppur. One K.R.E.Pattulinga Nataraj is
the 2nd defendant, 2nd respondent is the 3rd defendant, one
K.R.E.Sachidhanandam, is the 4th defendant in both the suits. Pending
suits, K.R.E.Sachidhanandam died and K.R.E.Pattulinga Nataraj/2nd
defendant and 2nd respondent herein/3rd defendant are his legal heirs. On
the death of 2nd defendant K.R.E.Pattulinga Nataraj, his legal heirs, the
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C.R.P.(PD)Nos.4464 and 4465 of 2014
respondents 3 to 7 herein were impleaded as defendants 5 to 9 in the
suits.
3.Pending Civil Revision Petitions, the 1st respondent died, his
legal heirs were impleaded as respondents 19 to 25 and the 3rd respondent
died, his legal heirs were impleaded as respondents 16 to 18 in both the
CRPs.
4.The 1st respondent filed O.S.No.428 of 2005 on the file of the
District Court, Coimbatore and on transfer, it has been re-numbered as
O.S.No.115 of 2012 on the file of the Principal District Court, Tiruppur.
The 1st respondent filed the said suit for partition and in the plaint, he has
stated that he possessed title of the suit property and made averments as
to how he is entitled to have share in the suit property. The petitioner
filed written statement on 10.08.2009. The petitioner and other
defendants are contesting the suit. The 1st respondent filed reply
statement in November, 2009.
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C.R.P.(PD)Nos.4464 and 4465 of 2014
5.The petitioner filed O.S.No.482 of 2011 on the file of the Fast
Track Court No.II, Coimbatore and on transfer, it has been re-numbered
as O.S.No.116 of 2012 on the file of the Principal District Court,
Tiruppur. The petitioner filed the said suit for declaration of his
pre-emptive rights in the suit property. According to the petitioner, as per
arrangement reached in Panchayat on 12.01.2000, he is entitled to relief
of pre-emptive right in respect of the suit property. The 2nd defendant
therein filed written statement on 10.02.2010, other defendants filed
written statement and are contesting the suit.
6.As per the order of this Court dated 30.10.2013 made in
Tr.C.M.P.No.49 of 2013, a joint trial was ordered to try both the suits in
O.S.Nos.115 and 116 of 2012 together. While the suits were posted for
trial, the petitioner filed I.A.No.298 of 2012 in O.S.No.115 of 2012 and
I.A.No.308 of 2012 in O.S.No.116 of 2012 under Order I Rule 10(2) of
C.P.C. to implead the proposed parties 10 to 17, who are respondents 8 to
15 herein, as defendants 10 to 17 in both the suits.
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C.R.P.(PD)Nos.4464 and 4465 of 2014
7.According to the petitioner, father of the 1st respondent i.e.,
Kader Basha Sahib leased out a portion of the suit property to one
K.N.Ramasamy on 03.05.1959. The tenant Ramasamy died leaving his
widow Ramathal. Ramathal purported to deny title of the landlord.
R.C.O.P. proceedings have been initiated before the learned Rent
Controller, Tiruppur, in R.C.O.P.No.2 of 2000 and the same is pending.
The said Ramasamy and Ramathal died intestate leaving their two sons
Moorthy and Sivasubramaniam and three daughters viz., Sakunthala,
Sarojini and Loganayaki, who are the respondents 8 to 10 herein as their
legal heirs. His son Moorthy died as a bachelor. Another son
Sivasubramaniam died intestate leaving his widow Saraswathi, 11th
respondent herein and his two sons, respondents 12 and 13 herein. Apart
from that, Ramasamy and Ramathal had inducted the respondents 14 and
15 herein as sub-tenants in the portion of the suit property leased out to
Ramasamy. The legal heirs of Ramasamy and Ramathal also denied title
of the suit property. The sub-tenants are in possession of the suit
property, hence, they are necessary and proper parties to the suit. All the
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C.R.P.(PD)Nos.4464 and 4465 of 2014
proposed parties are claiming right, interest and also possession. Unless
they are impleaded as party defendants in the suit, the petitioner will be
put to loss and even if any decree is passed in their absence, the decree
will not bind on them and it will result further legal proceedings and
prayed for impleading respondents 8 to 15 herein as defendants 10 to 17
in both the suits.
8.The 1st respondent and 6th respondent filed separate counter
affidavits, the respondents 3 to 5 and 7 adopted the counter affidavits
filed by the 6th respondent and resisted the applications filed by the
petitioner on the ground that applications filed to implead the
respondents 8 to 15 herein as party defendants are only to drag on the
proceedings. This Court in Tr.C.M.P.No.49 of 2013 by order dated
30.10.2013, directed the trial Court to dispose of the suits within a period
of three months. When the suits were riped for trial, the petitioner has
come out with present applications only to drag on the proceedings. The
proposed parties are tenants and the Rent Control proceedings initiated
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C.R.P.(PD)Nos.4464 and 4465 of 2014
against them is pending and they are not necessary and proper parties for
the relief sought for in the present suits and prayed for dismissal of both
the applications.
9.The learned Judge considering the averments in the affidavits,
counter affidavits and nature of relief sought for, dismissed both the
applications holding that respondents 8 to 15 are not necessary and
proper parties to the suits and they need not be impleaded as defendants
in the suits.
10.Against the said fair and decretal orders dated 27.08.2014 made
in I.A.Nos.298 and 308 of 2012 in O.S.Nos.115 and 116 of 2012, the
petitioner has come out with the present Civil Revision Petitions.
11.The learned counsel appearing for the petitioner contended that
the learned Judge failed to consider that respondents 8 to 13 are legal
heirs of tenant Ramasamy and therefore, they are necessary parties to the
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C.R.P.(PD)Nos.4464 and 4465 of 2014
suits. The Rent Control proceedings initiated by the 1st respondent in
R.C.O.P.No.2 of 2000 is pending. The learned Judge failed to consider
that the respondents 14 and 15, the sub-tenants are in possession of a
portion of the suit property and hence they are also necessary parties to
the suits. If any order is passed in their absence, they will claim that said
decree is not binding on them. In support of his contentions, he relied on
the following two judgments:
(i) (1996) 6 SCC 373 (Sk.Sattar Sk.Mohd. Choudhari vs.
Gundappa Amabadas Bukate);
“37. In view of the above discussion, it is
obvious that the law with regard to the splitting of
tenancy is not what the High Court has set out in the
impugned judgment. As pointed out earlier, a co-sharer
cannot initiate action for eviction of the tenant from the
portion of the tenanted accommodation nor can he sue
for his part of the rent. The tenancy cannot be split up
either in estate or in rent or any other obligation by
unilateral act of one of the co-owners. If, however, all
the co-owners or the co-lessors agree among
themselves and split by partition the demised property
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by metes and bounds and come to have definite,
positive and identifiable shares in that property, they
become separate individual owners of each severed
portion and can deal with that portion as also the tenant
thereof as individual owner/lessor. The right of joint
lessors contemplated by Section 109 comes to be
possessed by each of them separately and
independently. There is no right in the tenant to prevent
the joint owners or co-lessors from partitioning the
tenanted accommodation among themselves. Whether
the premises, which is in occupation of a tenant, shall
be retained jointly by all the lessors or they would
partition it among themselves, is the exclusive right of
the lessors to which no objection can be taken by the
tenant, particularly where the tenant knew from the
very beginning that the property was jointly owned by
several persons and that, even it he was being dealt
with by only one of them on behalf of the whole body
of the lessors, he cannot object to the transfer of any
portion of the property in favour of a third person by
one of the owners or to the partition of the property. It
will, however, be open to the tenant to show that the
partition was not bona fide and was a sham transaction
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C.R.P.(PD)Nos.4464 and 4465 of 2014
to overcome the rigours of Rent Control laws which
protected eviction of the tenants except on specified
grounds set out in the relevant statute.
.. ..
.. ..
40.We have already indicated above that during
the pendency of the appeal in this Court the respondent
has purchased the remaining portion of the shop, which
had fallen in the share of the appellant's brother. This
portion measures 23' x 7-1/2'. It has been purchased
from Smt. Zubedabi, wife of the appellant's brother, in
whose share the said portion had fallen on partition,
and who had gifted that portion to his wife. The copy
of the sale deed has been filed in this Court, to which
no objection has been taken by the counsel for the
respondent. The respondent does not deny the
transaction. He having purchased the remaining portion
of the shop, became the owner thereof and his interest
as a tenant merged in his right as an owner of that
portion. He, therefore, remained a tenant only in
respect of the disputed portion and consequently the
suit filed by the appellant in respect of that portion was
clearly maintainable.”
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C.R.P.(PD)Nos.4464 and 4465 of 2014
(ii) (2006) 1 SCC 125 (Messrs. Karta Ram Rameshwar Dass vs.
Ram Bilas and others);
“7.In view of the foregoing discussion, we hold
that in a suit for partition filed by one co-sharer against
another if a tenant is made party, he can object to the
claim for partition if it is shown that the same was not
bona fide and made with an oblique motive to
overcome the rigors of rent control laws which
protected the eviction of the tenant except on the
grounds set out in the relevant statute. After a partition
is effected or a decree for partition is passed, it would
be open to the co-sharers to evict a tenant from that
portion of tenanted premises which had fallen in their
respective shares by filing separate proceedings for
eviction under rent control laws on the grounds
enumerated thereunder. In the present case, the tenant
failed to prove that the claim for partition was not bona
fide. Therefore, final decree in the suit for partition has
been rightly confirmed by the High Court but it was not
justified in reversing the decree of the trial court, which
directed that the possession of the tenant could not be
disturbed unless and until proceeding is initiated for its
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C.R.P.(PD)Nos.4464 and 4465 of 2014
eviction under the Act, and in ordering for recovery of
possession from the tenant of that portion of the
tenanted premises which had fallen to the share of the
plaintiff. In our view, the trial court was quite justified
in directing that possession of the tenant would not be
disturbed and it can be evicted only in accordance with
law by taking steps for eviction under the provisions of
rent control legislation upon the grounds enumerated
thereunder.”
12.The learned counsel appearing for the respondents 2, 5 to 7 and
16 to 25 reiterated the averments made in the counter affidavits filed in
the applications and made submissions in support of the order of the
learned Judge. The learned counsel further submitted that admittedly
proposed parties are legal heirs of tenants and sub-tenants. In the suits for
partition and for claiming declaration of pre-emptive right, the tenants
and sub-tenants are not necessary and proper parties. The learned Judge
has properly appreciated scope of Order I Rule 10 of C.P.C. and by
giving valid reason, dismissed both the applications in the suits. The
facts in the judgments relied on by the learned counsel appearing for the
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C.R.P.(PD)Nos.4464 and 4465 of 2014
petitioner are not relevant to the facts of the present case. The issue in the
said case is a dispute between the landlord and tenant. Here, the reliefs
claimed in the suits are only between owner of the properties. Therefore,
the judgments relied on by the learned counsel appearing for the
petitioner do not advance the case of the petitioner and prayed for
dismissal of both the Civil Revision Petitions. In support of his
contentions, he relied on the following judgments:
(i) C.M.P.No.709 of 2016, order dated 12.07.2017 (Akshaya
Kumar Mishra vs. Ashok Kumar Mishra and others);
“9. In Razia Begum vs. Sahebzadi Anwar Begum
and others, AIR 1958 SC 886, the apex Court held that
it is firmly established as a result of judicial decisions
that in order that a person may be added as a party to a
suit, he should have a direct interest in the subject
matter of the litigation whether it raises questions
relating to movable or immovable property.
.. ..
11.The intervenor has no direct interest over the
suit schedule land. He is neither necessary nor proper
party in a suit for partition. .. .. ”
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C.R.P.(PD)Nos.4464 and 4465 of 2014
(ii) CRP(PD)No.1734 of 2011, order dated 04.07.2017
(Kamalesan and others vs. R.Pushpagaran and others);
“12.When the suit was filed against the
defendants and the suit has not been filed against the
proposed parties, who are the tenants and no relief
sought for by the plaintiffs against the proposed parties.
Then, the Court would apply his mind and gone into
that to reject the petition, but in the present case, how
the learned Judge has come to conclusion that when
there is no relief sought for against the proposed
parties, admittedly, who are the tenants of the suit
schedule of property has ordered to implead them as
parties/defendants.
.. ..
14.The Court have considered the provision of
Order 1 Rule 10(2) of CPC were very wide and the
power of Courts were equally extensive. Even, without
an application, impleaded as party, the Court can add
any other party if such party is necessary party to
enable Court to effectually and completely adjudicate
questions involved in the suit. Necessary party is one
without whom no order can be effectively made and
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C.R.P.(PD)Nos.4464 and 4465 of 2014
proper party is one whose presence is necessary as
party and he had relevant evidence to give on some
questions involved and he becomes necessary witness.
But, in the present case, the petitioners/proposed
parties and tenants are 3rd parties and they were no
way connected in respect of suit schedule of property
except the tenant. In the suit schedule of property, they
cannot be added as the defendants, since they are not
the legal heirs of the original owners of the suit
schedule of property and there is no relief also claimed
by the petitioners/plaintiffs against the proposed
parties. If at all the 3rd defendant wants to income of
the rent, they can very well to apply to the Court to file
an appropriate application for appointing an Advocate
Receiver for collecting the rental amount from the
tenant and to deposit the Court or the 3rd defendant
himself have right to file an application seeking
direction to the tenant, who are in actual possession of
the suit schedule of property to deposit the rental
amounts. But, without doing so, the 3rd defendant has
filed the present application, for impleading the tenant,
since no relief is claimed by the plaintiffs against the
proposed parties / 3rd parties in the suit for partition.
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.. ..
16.Considering all the above facts and relevant
provisions and judgments rendered by this Court and
the Honble Apex Court, it is made clear that if we look
at the facts of the present case, the proposed parties are
not proper and necessary parties, since no relief sought
for by the plaintiffs against the proposed defendants in
the suit. Apart from this, they are the tenants in the suit
schedule of property.
17.Therefore, I am of the considered view that
the order of the learned Principal District Judge,
Dharmapuri in I.A.No.184 of 2010 cannot be sustained.
The proposed parties who had no occasion to
participate in the proceedings before the Court of first
instance, actually have no role to play in the suit, since
the proposed parties are only the tenant and no relief
sought for by the petitioners/plaintiffs against the
proposed parties and hence this Court it is just and
necessary for warranting interference in the order
passed in I.A.No.184 of 2010 in O.S.No.39 of 2009,
dated 28.02.2011, on the file of the Principal District
Court, Dharmapuri and accordingly, the same is liable
to be set aside.”
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C.R.P.(PD)Nos.4464 and 4465 of 2014
(iii) CRP(MD)No.1123 of 2020, order dated 03.08.2021
(K.N.Allahbux vs. K.N.Dawood Mohideen and others);
“8.Whether a tenant is a necessary party in a
partition suit had been put to acid test in Kamalesan vs.
R.Pushpakaran reported in 2017 (7) MLJ 781, wherein
a learned Single Judge of this Court has categorically
held that a tenant is neither a necessary nor a proper
party in a partition suit.”
(iv) C.R.P.(PD)Nos.333 and 334 of 2019, order dated 28.06.2021
(Muthusamy and three others vs. Avinashiappan and seven others);
“7.With respect to the relief sought in the plaint,
namely to declare the particular Will as null and void,
the burden is cast on the plaintiffs to establish that the
alleged will was actually executed in circumstances
which created a strong suspicion in the mind of the
Court. That burden cannot be shifted by the plaintiffs.
Thereafter, execution has to be proved. The tenants of
the property can never by termed either necessary or
proper parties to decide that particular relief. The other
test to decide whether any application under Order I
Rule 10 of CPC., would lie is whether any order passed
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C.R.P.(PD)Nos.4464 and 4465 of 2014
in the suit will directly affect the interest the said
proposed parties. That test is also not satisfied, since if
the Will is either accepted or rejected, the tenants are
not going to get affected. They will still remain as
tenants.
8.Insofar as the 1st relief is concerned the tenants
are neither proper nor necessary parties. The plaintiffs
have also sought the relief of partition and separate
possession. Once again, the tenants need not be heard
on the manner in which the property is to be divided. If
at all a preliminary decree and thereafter, a final decree
is passed then whoever gets a share of the property
where the tenants are in possession will become the
landlords to those particular tenants.”
13.Though notice has been served on the respondents 12 and 13
and their names are printed in the cause list, there is no representation for
them either in person or through counsel.
14.Heard the learned counsel for the petitioner, who is appearing
before this Court physically as well as the learned counsel appearing for
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C.R.P.(PD)Nos.4464 and 4465 of 2014
the respondents 2, 5 to 7 and 16 to 25 through Video-
conferencing/Hybrid mode and perused the entire materials on record.
15.From the materials on record, it is seen that the learned Judge
has framed a point for decision viz., whether there is any reason to direct
the respondent to produce the documents mentioned in the petition? The
point so framed by the learned Judge is not correct. Even though the
learned Judge has framed an incorrect point for consideration, the learned
Judge has properly appreciated the materials on record and scope of
Order I Rule 10 of C.P.C.
16.From the materials on record, it is seen that 1st respondent filed
suit in O.S.No.115 of 2012 for partition against the petitioner as 1st
defendant and other defendants 2 to 9 and the petitioner filed suit in
O.S.No.116 of 2012 against 1st respondent as 1st defendant and other
defendants 2 to 9 for declaration of his pre-emptive right in the suit
property. The suits are contested by the petitioner, 1st respondent and
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C.R.P.(PD)Nos.4464 and 4465 of 2014
other defendants. When the suits were riped for trial, the petitioner filed
present applications for impleading the respondents 8 to 15 as party
defendants 10 to 17 in the suits.
17.From the materials on record, it is seen that father of the 1 st
respondent viz., Kader Basha Sahib leased out a portion of the suit
property to one K.N.Ramasamy. The said Ramasamy died leaving behind
his widow Ramathal. According to the petitioner, the said Ramathal
purported to deny the title of the petitioner and other defendants. In view
of the same, 1st respondent filed R.C.O.P.No.2 of 2000 and the same is
pending. The said Ramasamy and Ramathal died leaving the respondents
8 to 13 as their legal heirs. The said Ramasamy and Ramathal inducted
respondents 14 and 15 as sub-tenants in a portion of the suit property. As
Ramathal denied title with regard to the suit property, the respondents 8
to 15 are also denying the title. In view of denial by respondents 8 to 13
and respondents 14 and 15, who are in possession of the portion of the
property as sub-tenants, the respondents 8 to 15 are proper and necessary
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parties to the suits. On these grounds, according to the petitioner, the
respondents 8 to 15 are necessary and proper parties to the suits and
unless they are impleaded as party defendants, any decree passed in the
suits will not be binding on them. These contentions are without merits in
view of the relief sought for in both the suits. O.S.No.115 of 2012 filed
by the 1st respondent is for partition to divide the suit property and to
allot his share to him. In view of the relief sought for in the suit by the 1 st
respondent, the respondents 8 to 13, who are the legal heirs of the tenants
and respondents 14 and 15, who are sub-tenants, are not proper and
necessary parties to the said suit. When a decree for partition is passed,
the person, to whom the portion of the property, in which the respondents
8 to 15 are in possession, is allotted, it is open to the said person to
continue R.C.O.P. proceedings pending against respondents 8 to 15 and
to take any further proceedings against the respondents 8 to 15.
18.As per Order I Rule 10 of C.P.C., a person whose presence is
necessary to decide the issue in the suit can be impleaded either as a
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plaintiff or defendant. Similarly, a person impleaded in the suit can be
struck off, if he is unnecessary party to decide the issue in the suit. The
provision of Order I Rule 10 of C.P.C. is to implead a person whose
presence is necessary to decide the issue in the suit. In the suits for
partition and claiming pre-emptive right, the necessary parties are owners
of properties. The legal heirs of tenant and sub-tenants are not necessary
and proper parties to decide the issue whether the petitioner, 1st
respondent and other defendants are entitled to relief of partition and
petitioner is entitled to declaration of pre-emptive right. The learned
Judge has properly appreciated scope of Order I Rule 10 of C.P.C. and
the fact that respondents 8 to 15, who are legal heirs of tenants and sub-
tenants, are not necessary and proper parties to the suits and rightly
dismissed both the applications. In view of the above facts, the
judgments relied on by the learned counsel appearing for the petitioner
do not advance the case of the petitioner.
19.For the above reasons, both the Civil Revision Petitions stand
dismissed. Both the learned counsel appearing for the petitioner as well
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as the respondents submitted that suits are posted for trial and in view of
pendency of Civil Revision Petitions, there is no progress in the suits.
The learned Judge is directed to dispose of both the suits in O.S.Nos.115
and 116 of 2012 as expeditiously as possible, in any event, within a
period of six months from the date of receipt of a copy of this order. No
costs. Consequently, connected Miscellaneous Petitions are closed.
03.12.2021
Index : Yes/No
Internet: Yes/No
kj
To
The Principal District Judge
Tiruppur.
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C.R.P.(PD)Nos.4464 and 4465 of 2014
V.M.VELUMANI,J.
Kj
C.R.P.(PD)Nos.4464 and 4465 of 2014
and M.P.Nos.1 and 1 of 2014
03.12.2021
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