Kaliammal vs Karuppan and 2 others

1. Kaliammal, the plaintiff/appellant, having lost in both the Courts below, has approached this court by filing this second appeal.

The appellant filed a suit against the defendants claiming for partition and separate possession of plaintiffs l/3rd share in the suit property and for

mesne profits. The trial court, after trial, dismissed the suit holding that the necessary party has not been added and the suit is barred by limitation.

Aggrieved by the same, the appellant filed an appeal before the lower appellate court, which, in turn, also dismissed the appeal, while confirming

ihe judgment and decree of the trial court.

The case of the plaintiff is this:-

The suit property belonged to plaintiffs father Philips, who died 10 years back leaving behind him, his son by name Kannan and two daughters

Kaliammal (plaintiff) and Muruvayee as heirs to his property. After the death of their father, Ihe plaintiff, Muruvayee and Kannan were in

possession and enjoyment of !he property. After her marriage, the plaintiff was living with her husband. In the meantime, the plaintiffs brother

Kannan sold the suit property lo Karuppan, the first defendant. He also obtained a release deed from the plaintiff sister Muruvayee. The plaintiff

has been demanding the first defendant, from January, 1986, lo deliver possession of her 1/3rd share in the suit property. Evading the same, the

first defendant sold the property in favour of the second defendant. Hence, the suit for partition and separate possession of plaintiffs 1/3rd share in

the suit property.

The case of the defendant is this:-

The property was the exclusive property of Kannan and the plaintiff is not entided to 1/3rd share. The first defendant purchased the property by a

registered sale deed dated 27.1.1978. One portion of the property was purchased by the first defendant and another portions was purchased by

the wife of the second defendant, viz., the third defendant. The suit is not maintainable and bad for non-joinder of necessary party, namely,

Muruvayee. The suit is also barred by limitation, since the third defendant has been impleaded after 12 years form the date of the sale deed

executed in favour of the first defendant.

On the basis of (he above pleadings, the trial court framed necessary issues, Before the trial court, the plaintiff examined himself as P, W. 1 and

Exs.A. 1 and A.2 were marked and on behalf of the defendants, the second defendant was examined as D.W.I and Exs.B.l to B.8 were marked.

On consideration of those materials, both the Courts below gave the findings that Muruvayee, the necessary party, was not pleaded and the

third defendant, who purchased a portion of the property from the first defendant, was not impleaded within the period of 12 years and therefore,

the suit is bad and barred by limitation.

Challenging the said findings of both the Courts below, the learned counsel appearing for the appellant, on the strength of various decisions,

would submit that the findings given by both the Courts below are wrong, since the suit was instituted on 15.4.1987 itself, i.e., within the period of

12 years and that the second and third defendants had purchased the property only on 14.4.1987 and 18.4.1987 respectively. He would also

point out that the said Muruvayee, who was the co-owner is not a necessary party.

The said contentions have been refuted by the counsel for the respondents justifying the reasoning given by both the Courts below in dismissing

the suit.

The substantial questions of law, which have been raised in the grounds of appeal, are these:-

(i) Having rightly found that the father of the appellant was the owner of the suit property and that the plaintiff has right to claim petition of her l/3rd

share, whether the courts below are right in law in assuming that the respondents 2 and 3 prescribed title by adverse possession, is not long,

continuous, open exclusive, hostile and adverse to that of the appellant for over a siatutory period as required under Article 65 of Limitation Act?

(ii) Whether the Courts below are right in holding that the suit is bad for non joinder of transferor/co-owner in a suit for partition filed by the

appellant against the transferors of the interest of the other co-owners?

As correctly pointed out by the learned counsel for the appellant, the contention of the defendant that the suit property did not belong to the

father of the plainliff, but it exclusively belonged to Kannan, who is the vendor of the property, has been rejected by the trial court, since the

documents, Exs. A. 1 to A.2, filed by the plaintiff wouid clearly show that the property belonged to her father, as it was entrusted by the

Government to her father who was in military service. But, that fact alone would not be sufficient to hold that the plaintiff would be entitled to

partition through the suit, which has not been validly instituted.

It is not settle law that in a suit for partition, all the co-sharer are necessary parties and if those parties have not been added, the suit is liable to

be dismissed for non joinder of any one of the parties.

It is held in (1) State of Bihar Vs. Radha Krishna Singh and Others, ; (2) A. Ramachattdra Pillai v. Valliammal, 1987 (100) LW 486; (3)

Sabasthi Nadar v. Savurimuthu Nadar, AIR 1999 Mad.71 that the suit for partition is liable to be dismissed in view of the non-impleading of one

of the daughters. It is also observed on the issue as to the applicability of Order 1, Rule 9 of CPC holding that no suit shall be dismissed for non-

joinder and that it is only an enabling provision to be applied by the Courts in appropriate cases.

It is also held in P. Haridoss Vs. N. Subbayya Pillai and 3 others, that in a suit for declaration and injunction, all the co-sharers have to be

impieaded as necessary parties.

There is also no dispute in the proposition that it is not desirable to keep out a sharer on the basis of a mere pleading by one if the rival parties

contending in the absence of a particular sharer that he has no interest in the property. In this case, even though it is mentioned in the plaint that

Muruvayee was a co-sharer, no steps were taken by the plaintiff to implead her, who had been left out.

As laid down in Sabasthi Nadar v. Savurimuthu Nadar, AIR 1999 Mad.71, the court cannot take any initiative on its own under Order 1, Rule

10(2) of (he CPC in the absence of proper particulars relating to all parties who are left out. Therefore, the findings of both the Courts below that

the suit is not validly instituted and it becomes bad due to non joinder of necessary party cannot be said to be perverse.

Similarly, I am also in agreement with the finding of both the Courts below that the suit is barred by limitation.

Admittedly, the suit property was purchase by the first defendant on 27.1.1978. But, the application for impleadment was filed on 18.9.1991.

The properties were purchased by the second and third defendant on 13.4.1987 and 18.4.1987 respectively. The fact that the third defendant

purchased a portion of the property had been mentioned in the written statement filed on 12.4.1987. The impleading petition, as noted above, had

been filed on 18.9.1991.

By virtue of the provisions of sub-rule (5) of Rule 10, Order 1 of the Civil Piocedure Code, subject to the provisions of Limitation Act, the

proceedings as against any person added as defendant are deemed to have begun only on the service of the summons on him. The proviso to sub-

section (1) of Section 21 of the Limitation Act vests discretion in the Court to order the suit as regards such party to be deemed to have been

instituted on any earlier date, if it is satisfied that the omission to include the party was due to the mistake made in good faith. The mistake can be

said to have been committed in good faith if it occurs in spite of due care and caution on the part of the party concerned.

But in the instant case, as noted above, no circumstances, whatsoever, had been shown which would disclose that the mistake in not

impleading the third defendant had been committed in good faith, particularly, when the impleading petition was filed 4 years after filing of the

written statement.

The object of Order 1, Rule 10(2), CPC is to bring about before the court at the same time all the persons who are parties to dispute relating

to the subject matter so that the dispute may be determined at the same time without any delay or inconvenience and expenses of separate actions

and trials. By reason of such a power, the court places itself in a position of being able to effectually and completely adjudicate upon and settle all

the questions involved in the suit. However, this provision is subject to the other provisions including Section 21 of the Limitation Act.

In the light of the principles mentioned above, as laid down in (1) Chunchun Chaudhary Vs. State of Bihar and Others, ;(2) Sundra and

Another Vs. Harnam Singh and Others, ; (3) Kisan Co-operative Sugar Factory Ltd. Vs. Rajendra Paper Mills and Others, ; (4) National Building

Material Supply Vs. Jai Jai Ram Manohar Lal, ; and Lalit Kumar and Others Vs. Jairam Dass and Others, , in this case, it cannot be construed

that the suit would be regarded as having been commenced as against the third defendant at he time when it was first instituted as against the first

and second defendants.

Therefore, the findings of both the Courts below have been correctly rendered and as such, I do not find any infirmity, which would warrant

interference by this Court u/s 100 CPC in second appeal.

In the result, the second appeal is dismissed. No costs.