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,
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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
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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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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
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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
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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
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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.
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K.SUJANA, J
Date: 26.02.2024
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