S.P. Jamal and Others vs S.M. Yahub and Others

S. Palanivelu, J.—The petitioners filed I.A. No. 142 of 2007 in O.S. No. 16 of 2007. It is a suit for partition filed by the respondents 1 to 5 who are plaintiffs, for partition of the suit properties in which respondents No. 6 to 11 are defendants. The plaintiffs and the defendants entered into compromise before the Trial Court and a preliminary decree was passed. Thereafter the plaintiffs filed I.A. No. 71 of 2007 on the file of the Trial Court namely, the Principal District Court, Tirunelveli for passing of final decree. At this juncture, these petitioners filed the present application to implead them as parties claiming certain right in certain portions of the suit properties.

The crux of the matter is that one Mohammed Nagoor Meeran Lepai purchased the properties to an extent of two acres in S. No. 483/B and one acre in S. No. 547/B on 04.06.1908. His descendants by name Syed Mohammed Buhari, Sangu Pathar Ali, Kadar Mohideen and Mohammed Pathimal sold one Acre, 87 Cents on 13.05.1937, describing it as southern portion of the entire extent. The present petitioners claim that they are the descendants of the vendors in 1937 document and now they plead that by means of the said document, the entire extent was not sold and that even though it was mentioned in 1937 sale deed that southern one Acre 87 cents was sold, it was not specifically demarcated nor clarified and that the said aspect has to be decided by the Court.

3.The plaintiffs and the defendants resisted the above said application by stating that they have suppressed the sale deed dated 13.05.1937 and the perusal of the same would show that there was nothing retained thereafter with the vendors. The learned District Judge has observed that Ex.R1 is the document dated 13.05.1937 shows clear boundaries and the same relates to the first Schedule property which prima facie proves that the petitioners have filed this application without disclosing the existence of Ex.R.1 and they have not made out their case.

The learned Counsel for the respondents/plaintiffs Mr. K. Srinivasan would rely upon a decision of the Hon''ble Supreme Court reported in Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. and Others, wherein Their Lordships have held as follows:

So far as the Application for impleadment of the applicants are concerned, they being not parties to the Suit are not bound by the decree. They would, thus, be entitled to take recourse to such remedies which are available to them in law including filing of an application under Order 21, Rules 97 and 99 of the Code of Civil Procedure, if any occasion arises therefor. As and when the said applicants take recourse of law, the same has to be determined in accordance with law.

The decision was rendered in a suit for declaration of title and recovery of possession and the person who claims to be in possession of the suit property concededly these petitioners were not the parties to the suit and hence the learned Counsel for the respondents/plaintiffs would say that they are not at all necessary parties to the suit, since the decree passed thereon may not bind them. But the facts in present case are distinguishable. This is a suit for partition and whether the extent of 1 Acre and 87 cents has been clearly demarcated in 1937 document has to be ascertained which could be only from the oral evidence on record after examination of the parties.

The learned Counsel for the respondents/plaintiffs also placed reliance upon another decision of the Hon''ble Supreme Court reported in T.V. Sakthivel Vs. The Regional Joint Registrar Cooperative Societies, The Sub Registrar, Cooperative Societies and The Special Officer, , in which it is observed that in an application for impleadment under Order 1 Rule 10 CPC, the Court would only decide whether the presence of the applicant would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the proceedings. Following the dictum laid down by the Hon''ble Supreme Court, this Court is of the considered view that presence of these petitioners is inevitable for the Trial Court to pass a preliminary decree which would finally adjudicate the rights of the parties.

The learned Counsel for the respondents/plaintiffs also draws attention of this court to the decision of this Court in M. Ramanathan Vs. M. Vasantha and Others, , wherein it is held that the third party is neither a necessary nor proper party to be impleaded in the suit. The issue in the said suit was whether there was a trust and whether the property is trust property. If the third party claims that there was a Will under which the property had been bequeathed to the vendors from whom, he had acquired title it is well open to him to file his own suit. It is further opined that the Court cannot investigate the case which is neither the case of the plaintiffs nor the case of the defendants and claim of the third party would be new case for impleading in the suit and that at a mere apprehension of the collusion between the parties, the third party cannot be impleaded.

But the facts available in the present case are different by observing that it is a suit for partition and what are the properties actually to be allotted to both parties in the suit have to be examined only in the final decree proceedings and at the time of delivery of properties as per the allotment suggested by the Advocate Commissioner, there shall not be any confusion between the parties.

In the opinion of this Court, the presence of these petitioners is very much essential in the final decree proceedings and there would be no prejudice also to the other parties namely, the plaintiffs and the defendants, who are already on record in the suit and the Court below has to permit them to represent their case.

In view of the above said observation, the order passed by the learned Principal District Judge, Tirunelveli has to be set aside and it is accordingly set aside.

In the result, the Civil Revision Petition is allowed. The learned Principal District Judge, Tirunelveli will not get influenced by any of the observations made by this Court in the order. He is directed to dispose of the final decree application preferably before summer vacation 2009. No costs. Consequently, connected Miscellaneous Petition is closed.