Vuppala Ramulu and Another vs V. Bhudevi and Others

G. Chandraiah, J.—Heard the Counsel for the petitioners and the Counsel for the respondents is not present.

Aggrieved by the order dated 24.11.2006 passed by the Court of Senior Civil Judge, Sangareddy in LA. No. 474/2006 in O.S. No. 195 of 2005 in transposing the defendants 10 to 14 and 16 as plaintiff Nos. 3 to 8, the original plaintiffs 1 and 2 in the suit, filed the present revision.

From the material on record, it could be seen that the plaintiffs 1 and 2 are the family members of the 1st defendant and they filed the suit for partition and separate possession. The case of the plaintiffs is that the entire suit schedule properties are the joint family properties. The grievance of the plaintiff, inter alia, is that the defendants refused to have partition by metes and bounds and were admitting to create third party interest by transferring the suit land in favour of the 17th defendant, depriving the share of the plaintiffs. The defendants 10 to 14 and 16 filed their written statement and claimed share in the suit schedule properties, as they were acquired out of joint family funds. However, subsequently, the plaintiffs filed I.A. No. 446/2006 abandoning the claim against the 17th defendant in the suit on the ground that the lands forming part of A schedule are not acquired out of the joint family properties and in view of conveyance of title and possession in pursuance of regular sale deed executed prior to filing of the suit. The defendants 10 to 14 and 16 filed counter and opposed the application and other defendants reported no counter and did not oppose the application and the same was allowed on 3.4.2006.

The claim of the plaintiffs is that the entire suit schedule property is the joint family property as the same is acquired by joint family funds and that as the defendants are refusing to have partition by metes and bounds and are admitting to creating third party interest by transferring the land in favour of 17th defendant, the suit is filed for partition and in the I.A. No. 446/2006 on the ground that the part of A schedule property is not acquired by the joint family funds and that there is settlement out of the Court, sought for deletion of properties and accordingly the I.A. was allowed. Hence, the stand of plaintiffs, as found by the trial Court, is quite contrary to the pleadings. Furthermore, as noted by the Court below, the plaintiffs 1 and 2 made an application in LA. No. 785/2006 requesting the Court to permit them to abandon their claim in respect of the land to an extent of Acs.7-26 guntas in Sy. No. 31/A for an extent of Acs.5-8 guntas in Sy. No. 36/ AA and to an extent of Acs.2-18 guntas forming part of A schedule properties. However, there is no material or any submission with regard to the result of the said I.A. In these circumstances, there is any amount of justification on the part of the defendants 10 to 14 and 16 in apprehending that the plaintiffs may abandon the suit claim. In the decision reported in Butti Veerpal and Others Vs. K. Vijaya Laxmi and Others, , it is held that where a suit is withdrawn or abandoned by a plaintiff under Rule 1 of Order 23 of C.P.C., it is open to a defendant to apply under Rule 1-A of Order 23 of C.P.C. to be transposed as plaintiff under Order 1 Rule 10 C.P.C, in which event the Court has to consider such application having due regard to the question whether the application has substantial question to be decided as against any of the other defendants. In fact, transposition of a defendant as a plaintiff, is to be considered, when the plaintiff failed to prosecute the suit properly and when apprehension that the plaintiff was won over by some of the contesting defendant.

In the present case, as noted above, the apprehension on the part of the defendants 10 to 14 and 16 that the plaintiffs may abandon the suit, is justifiable in view of the conflicting claims of the plaintiffs and also in view of the filing interlocutory application seeking abandonment of certain lands in plaint A schedule property.

It is to be seen that it is a suit for partition and the above defendants are claiming their legal share in the joint family properties and hence there appears to be no conflicting claims among the plaintiffs and the contesting defendants and further the nature of the suit also does not alter and hence in the light of the justifiable apprehension with regard to the abandonment of the suit claim by the plaintiffs, the Court below has rightly transposed the defendants 10 to 14 and 16 as plaintiff Nos. 3 to 8. Further as per the decision of the Patna High Court reported in Ram Prasad Choudhary and Others Vs. Mst. Fulia and Others, , the transposition of defendants as a co-plaintiff shall be allowed whether it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings.

With regard to contention of the revision petitioners under Rule 1-A of Order 23 of C.P.C. is concerned it is to be seen that there is no dispute that only when the plaintiffs withdraws or abandons the suit, the Court after due regard to the question whether the defendant has substantial question to be decided as against any of the other defendants, permit the defendants to be transposed as plaintiff. In the present case, the situation is otherwise. The plaintiffs have not withdrawn the suit and on the other hand, by taking conflicting grounds, are abandoning suit claims in part. As noted in the above decision in B. Veerpal''s case (supra), if the plaintiff failed to prosecute the suit properly and when there is apprehension that the plaintiff was won over by some of the contesting defendants, transposition of a defendant as a plaintiff can be considered. In the present case, the plaintiffs by abandoning part of the suit claim, have created apprehension in the minds of the contesting defendants that the plaintiffs in collusion with other defendants may abandon the suit claim and thus cause injustice to them. Hence, they sought for transposition and rightly the Court below transposed them as plaintiffs 3 to 8. For the foregoing reasons, I do not find any merit in the revision and the same is dismissed. No costs.