Telangana High Court

Gundala Rajashkar vs Kethidi Komal Reddy on 17 October, 2023

Bench: G.Radha Rani

        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

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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

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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,

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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

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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

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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.

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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

(2020) 13 SCC 773

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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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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