Telangana High Court
Boora Prabhakar vs Panthangi Dashratha on 23 January, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
CIVIL REVISION PETITION No.967of 2023
O R D E R:
This Civil Revision Petition is filed by the petitioner - defendant
aggrieved by the orders in I.A.No.106 of 2023 in O.S.No.3 of 2018 on the file
of the Principal District Judge, Suryapet.
2. Heard Sri K.Prabhakar Reddy, learned counsel for the petitioner and Sri
Venugopal Rao Pasnooru, learned counsel for the respondent - plaintiff.
3. The respondent - plaintiff filed O.S.No.3 of 2018 seeking specific
performance of contract and to declare the registered sale deed bearing No.1230
of 2021 and registered sale deed bearing No.283 of 2022 dated 11.02.2022 as
null and void and not binding on him. The suit schedule property was shown as
Ac.1-09gts. of dry land in Survey No.98 of Kudakuda Village, Chivemla
Mandal and Ac.1-01gts. of lemon garden in Survey No.98 of Kudakuda Village
of Chivemla Mandal, Suryapet District. Common boundaries were shown to
both the properties as East: House plots of P.Nageshwar Rao, West: Land of
Nagi Reddy, North: Land of Sadu Vishwanadha Reddy, and South: Land of
Lodangi Narsamma.
2
Dr.GRR, J crp_967_2023
4. The sale consideration was alleged to be fixed at Rs.1,55,00,000/- lump
sum for the entire Ac.2-10gts. of land and it was also stated that an amount of
Rs.2,00,000/- was paid towards Earnest Money by the plaintiff to the defendant
on 09.10.2017. As per the terms and conditions of the agreement of sale, the
plaintiff agreed to pay the second installment equivalent to one-fourth of total
consideration amount i.e. Rs.38,75,000/- by 25.10.2017 and after receipt of the
said amount, the defendant agreed to execute a final agreement of sale in favor
of the plaintiff and as per the terms and conditions of the sale agreement, the
plaintiff agreed to pay the entire sale consideration by 09.10.2018.
5. It was contended that the plaintiff arranged the second installment amount
by 20.10.2017, but the defendant postponed to receive the same. As such, he
got issued a legal notice on 07.12.2017 for which the defendant gave reply. But
as the defendant was making false allegations in his reply, filed the suit.
6. The defendant filed written statement contending that it was a joint
family property belonging to him and his brothers. He was not having exclusive
right over the same, the same was clearly mentioned in the agreement of sale
dated 09.10.2017, but the plaintiff suppressed the same. The boundaries
mentioned were false and fictitious. No boundaries were mentioned in the sale
agreement. The plaintiff failed to come forward to pay one-fourth of the total
sale consideration as agreed and committed default. In the reply notice given by 3 Dr.GRR, J crp_967_2023
him, he clearly stated that the property was not partitioned between the family
members and the other family members did not come forward to execute any
sale agreement in continuation of the preliminary sale agreement and as such he
offered to return the Earnest Money of Rs.2,00,000/- received under the
preliminary agreement along with interest @ 24 % per annum. The plaintiff
pressurized him in entering into the preliminary sale agreement. His elder
brother filed O.S.No.31 of 2018 for partition and separate possession including
the suit schedule land before the Senior Civil Judge Court, Suryapet. An
interim injunction was granted by the Court restraining the defendant and
his another brother from alienating the lands and prayed to dismiss the suit.
7. During the course of trial, the plaintiff adduced evidence. When the
matter was coming up for the defendant's evidence, the plaintiff filed
I.A.No.106 of 2023 seeking impleadment of the proposed parties as defendants
2 and 3 and for consequential amendment of the plaint under Order 1 Rule 10
read with Section 151 of CPC and Rule 28 of Civil Rules of Practice contending
that he came to know that the defendant with an intention to cause loss to him,
got registered the suit schedule property in favor of his mother-in-law by name
Gabbilala Pullamma through registered sale deed No.1230 of 2021 in respect of
land to an extent of Ac.1-12gts. in Survey No.98/u4 situated at Kudakuda
Village, Chivemla Mandal. Thereafter, Gabbilala Pullamma sold the land in
favor of one Kodati Madhava Rao through registered sale deed No.282 of 2022 4 Dr.GRR, J crp_967_2023
and the defendant also sold some of the suit land in favor of Kodati Madhava
Rao through registered sale deed No.283 of 2022 in Survey No.95/A2 to an
extent of Ac.0-15gts. and Survey No.96/E2 to an extent of Ac.0-15gts. situated
at Kudakuda Village, Chivemla Mandal. The defendant transferred the suit land
in favor of Gabbilala Pullama and Kodati Madhava Rao and they were also
proper and necessary parties to the suit.
8. The defendant filed counter contending that he got the land through
partition decree in a different survey number with different boundaries and
under different extents and the same was sold to the proposed defendant No.2
two years ago and thereafter the proposed defendant No.2 sold to proposed
defendant No.3 one year ago. The said facts were known to the plaintiff. Only
to harass the third parties, he filed the petition to implead them. The properties
purchased by the said third parties were different from the plaint schedule land.
As such, they were not necessary parties for adjudication of the matter in
dispute.
9. The learned Principal District Judge, Suryapet vide impugned order dated
16.02.2023 allowed the petition observing that the contention of the defendant
that the property was not one and the same could be looked into at a later stage
during the trial.
5
Dr.GRR, J crp_967_2023
10. Aggrieved by the said order in I.A.No.106 of 2023 in O.S.No.3 of 2018
dated 16.02.2023, the defendant preferred this revision contending that the trial
court ought not to have allowed the implead petition without issuing notice to
the proposed parties. The same was against the principles of natural justice.
Serious prejudice would be caused in impleading the parties without issuing
notice to them. The trial court prima-facie failed to see whether the impleading
parties were necessary or proper parties to the suit proceedings. The trial court
failed to see that the property alienated by the revision petitioner was not the
suit schedule property. Even assuming that the property alienated by the
revision petitioner was suit schedule property, even then no prejudice would be
caused to the plaintiff, as there were no prohibitory orders not to alienate the
suit schedule property. By allowing the petition, it would have the effect of
altering the character of the suit from that of specific performance to that of a
suit based on title. The issues to be decided in a suit for specific performance
were within the parameters of the contract entered by the parties. There was no
scope for the third parties to agitate the issues arising out of contract, who were
not parties to the contract and prayed to set aside the impugned order.
11. The learned counsel for the petitioner - defendant contended that the suit
was based not on an agreement of sale, but on an advance receipt. No
boundaries were mentioned in the advance receipt. It was not known as to how
the plaintiff mentioned the boundaries in the plaint and the basis for the same. 6
Dr.GRR, J crp_967_2023
The suit schedule property was shown as two properties in the same Survey
No.98, one dry land and the other lemon garden. The property sold by the
petitioner - defendant to G.Pullamma was in Survey No.98/u4. The lemon
garden was not reflected as one of the boundaries in the said sale deed. If the
petitioner had sold the suit schedule property, then one of the boundaries should
be the lemon garden. The other property sold by the petitioner - defendant in
favor of Kodati Madhava Rao was in Survey No.95/A2 and 96/E2. They were
completely different survey numbers, which were not related to the suit
schedule property, which was shown as in Survey No.98. No prejudice would
be caused even if the said proposed parties were not impleaded, as the doctrine
of lis pendens covers the matter. Allowing the petition without issuing notice to
the proposed parties was in violation of principles of natural justice and relied
upon the judgment of the High Court of Himachal Pradesh in Sh.Ashwani
Kumar and Another v. Sh.Sanjay Kumar and Others 1 and prayed to set
aside the order of the learned Principal District Judge in I.A.No.106 of 2023 in
O.S.No.3 of 2018.
12. The learned counsel for the respondent - plaintiff on the other hand
contended that in the partition suit in O.S.No.31 of 2018, the defendant was
allotted a share of Ac.2-01gts. in Survey Nos.95,.96 and 98. There was no land
left in the name of the defendant after selling the above lands to the proposed
1 Civil Miscellaneous Petition No.311 of 2018 dated 16.03.2019 7 Dr.GRR, J crp_967_2023
defendants. If the parties were not impleaded, the execution would be difficult.
There was no illegality in the order of the trial court, as the proposed parties
were proper and necessary parties and prayed to dismiss the petition.
13. Perused the record.
14. The record would disclose that the suit schedule property was alleged to
be in Survey No.98. Two properties (one Ac.1-09gts. of dry land and the other
Ac.1-01gts. of lemon garden) were shown with common boundaries situated at
Kudakuda Village, Chivemla Mandal, Suryapet District.
15. The sale deeds filed along with the petition pertaining to the proposed
defendants would show that they were pertaining to different survey numbers
(Ac.1-12gts. in Survey No.98/u4 and Ac.0-15gts. in Survey No.95/A2 and
Ac.0-15gts. in Survey No.96/E2). None of these sale deeds would disclose
lemon garden as one of its boundaries, as rightly contended by the learned
counsel for the petitioner - defendant. No amendment petition was filed by the
respondent - plaintiff either to change the boundaries or the survey number of
the suit schedule property till date.
16. As such, when the properties sold by the petitioner - defendant to third
parties were in different survey numbers, without issuing notice to the proposed
parties, the learned Principal District Judge, Suryapet allowing the petition 8 Dr.GRR, J crp_967_2023
stating that the same can be considered at a later stage during trial is improper
and also in violation of principles of natural justice.
17. In the citation relied by the learned counsel for the petitioner - defendant
pertaining to the High Court of Himachal Pradesh in Sh.Ashwani Kumar and
Another v. Sh.Sanjay Kumar and Others (cited supra), the High Court placed
reliance upon a 3-Judge Bench judgment of the Hon'ble Apex Court in Kasturi
v. Iyyamperumal and Others [(2005) 6 SCC 733], where in two tests are
specified for determining the question as to who is necessary party as: 1) there
must be a right to some relief against such party in respect of the controversies
involved in the proceedings and 2) no effective decree can be passed in the
absence of such party.
18. As this is a suit for specific performance of contract, there was no
agreement between the plaintiff and the proposed parties and an effective decree
can also be passed even in the absence of impleading them as parties, as any
alienation made by the parties during the pendency of the suit is subject to the
doctrine of lis pendens.
19. In the absence of issuing any notice to the proposed parties, they will be
deprived of putting forth their stand before the Court and to oppose the
application. They would be losing an opportunity to respond to the application
filed by the respondent - plaintiff and to take all pleas available to them in 9 Dr.GRR, J crp_967_2023
opposing the said application, which was in violation of principles of natural
justice. The Court also would have an opportunity to pass a reasoned order
whether to implead them or not after taking note of the respective pleas of the
parties. As such, allowing the petition without issuing notice to the proposed
parties would cause prejudice to the petitioner - defendant as well as the
proposed parties.
20. As such, it is considered fit to set aside the impugned order passed by the
learned Principal District Judge, Suryapet in I.A.No.106 of 2023 in O.S.No.3 of
2018 dated 16.02.2023 and the trial court is directed to issue notices to the
proposed parties and to pass order on merits after hearing all the parties and
thereafter to proceed with the suit. It is also made clear that the trial court shall
not be influenced by any of the observations made by this Court while deciding
the present petition.
21. In the result, the Civil Revision Petition is disposed of with the above
directions. No order as to costs.
As a sequel, miscellaneous applications pending in this petition if any
shall stand closed.
_____________________ Dr. G. RADHA RANI, J
Date: 23rd January, 2024 Nsk.
