IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH THURSDAY, THE TENTH OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO C.R.P.No.4301 of 2012 Between :
M. Vidyalankar Reddy, S/o.M.C. Narasimha Reddy, Aged : 60 years, Cultivation, Madhugiripalli, Chilamathur Mandal, Anantapur District.
…Petitioner/ ProposedDefendant No.2 Vs.
M. Shankar Reddy, S/o.Late M. Sreerami Reddy, Aged : 44 years, Madhugiripalli, Chilamathur Mandal, Anantapur District and another …Respondent/Plaintiff Counsel for the Petitioner/ Proposed Defendant No.2 : Sri N. Aswartha Narayana Counsel for the Respondent/ Plaintiff : Smt. A. Triveni Reddy The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO C.R.P.No.4301 of 2012 ORDER:
This Revision is filed challenging the order dt.14.03.2012 in IA.No.800 of 2011 in OS.No.300 of 2007 on the file of the Junior Civil Judge, Hindupur.
2. The 1st respondent herein filed the suit for specific performance against 2nd respondent on the basis of an agreement-of-sale dt.13.04.2005 allegedly executed by 2nd respondent in favour of plaintiff. According to 1st respondent, the 2nd respondent is the absolute owner of the property which is the subject matter of the agreement-of-sale.
3. The petitioner filed I.A.No.800 of 2011 under Order I Rule 10 CPC to implead him as a party in the suit contending that the property which is the subject matter of the suit is joint family property and there had been no division or partition of properties till 22.01.2011; that on that day only some properties were partitioned while the plaint schedule property was kept joint; and that 2nd respondent had no exclusive right to alienate more than his 1/5th share in the plaint schedule property.
4. By order dt.14.03.2012, the trial court dismissed the said application holding that he is not a party to the agreement-of-sale and the application for impleadment has been filed when the suit is at the concluding stage of arguments; that 2nd respondent, during the course of evidence, admitted that the partition took place in his family and that he is in exclusive possession and enjoyment of the plaint schedule property to the extent of his share; and that the scope of the suit for specific performance is limited and cannot be expanded to decide whether the property which is subject matter of the suit is the property of 2nd respondent or joint family property of 2nd respondent and the petitioner.
5. Questioning the same, this Revision is filed.
6. The counsel for petitioner contended that the order of the trial court is erroneous and that the trial court ought to have impleaded the petitioner as a party to the suit for specific performance filed by 1st respondent against 2nd respondent.
7. On the other hand, the counsel for 1st respondent refuted the said contentions.
8. There is no dispute that the petitioner herein is not a party to the agreement of sale whose specific performance is sought in this suit. His plea is that the property which is subject matter of the suit is not the exclusive property of 2nd respondent but it is joint family property and that he also has a share therein. Thus, the petitioner wants to expand the scope of the suit for specific performance by converting it into a suit for declaration as to whether the plaint schedule property is the joint family property or the self-acquired property of 2nd defendant.
9. It is settled law that in a suit for specific performance normally only parties to the agreement of sale should participate and third parties to the agreement cannot be impleaded as this would widen the scope of the suit.
10. In Bharat Karsondas Thakkar v. Kiran Construction
[1]
Co. the Supreme Court has held that a person not a party to the sale agreement even if he had acquired an interest in the subject matter of sale agreement cannot be impleaded in a suit for specific performance and such a suit cannot be allowed to be converted into a suit for declaration of title.
11. The petitioner claims that the plaint schedule property is the joint family property. It is open to him to file a separate suit to establish the same, but he cannot get impleaded in this suit and seek to widen its scope.
12. In this view of the matter, I do not find any error in the order passed by the Court below. The Revision is accordingly dismissed at the stage of admission, granting liberty to the petitioner to file a separate suit, if he is so advised. No costs.
13. Miscellaneous applications, pending if any, in this Revision, shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 10-07-2014 Ndr/*
[1] (2008) 13 SCC 658