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B. Somaiah and ors. Vs. Amina Begum - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1868 of 1974
Judge
Reported inAIR1976AP182
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10
AppellantB. Somaiah and ors.
RespondentAmina Begum
Appellant AdvocateV. Venkateswarlu for A.C. Laxmanachar, Adv.
Respondent AdvocateS. Ramachandra Rao, Adv.
Excerpt:
property - agreement of sale - order 1 rule 10 of code of civil procedure, 1908 - plaintiff field suit for possession of suit land and compensation in alternative against defendants - petitioner claimed that subsisting agreement of sale in favour of suit property - court did not admit agreement - petition against order refusing to add petitioners as additional defendant in suit - order 1 rule 10 cannot be read as requiring that all persons who are likely to have any sort of right, title or interest in respect of subject matter of suit should be made parties to it - when agreement not admitted only remedy is to file suit against plaintiff for specific performance - held, revision petition dismissed. - .....respondent herein, alleging that her late mother mahbubunnissa begum was the absolute owner of the suit land and after her death, being the sole heir, she became entitled to it and she filed the suit to recover possession or in the alternative for compensation. the petitioners filed the petition to implead them alleging that during the lifetime of mahabubunnisa begum they entered into an agreement of sale in the first instance for ac. 112-00 at the rate of rs.5,000/- per acre under an agreement dated 18-2-1968 and paid a sum of rs.75,000/- towards earnest money. when they went to the land and tried to localise it, they fund it to be in the possession of praga tools corporation. when praga tools corporation claimed the land to be the government property, they approached the government......
Judgment:
ORDER

1. This civil revision petition is directed against an order refusing to add the petitioners herein as additional defendants in the suit. The suit is filed to recover possession of Ac. 212-00 of land against the Government of Andhra Pradesh and the Praga Tools Corporation, a public limited company. Praga Tools Corporation is in occupation of Ac. 100-00 of land out of the Ac. 212-00. According to them it is the Government property. The suit is filed by the plaintiff, the 1st respondent herein, alleging that her late mother Mahbubunnissa Begum was the absolute owner of the suit land and after her death, being the sole heir, she became entitled to it and she filed the suit to recover possession or in the alternative for compensation. The petitioners filed the petition to implead them alleging that during the lifetime of Mahabubunnisa Begum they entered into an agreement of sale in the first instance for Ac. 112-00 at the rate of Rs.5,000/- per acre under an agreement dated 18-2-1968 and paid a sum of Rs.75,000/- towards earnest money. When they went to the land and tried to localise it, they fund it to be in the possession of Praga Tools Corporation. When Praga Tools Corporation claimed the land to be the Government property, they approached the Government. The Government after enquiry decided that it is not their property, but it was the property of the mother of the plaintiff. On 11-2-1971 a fresh agreement cancelling the earlier agreement was entered into by them with the plaintiff who was the general power of attorney holder of the plaintiff's mother for a sum of Rs.7,50,000/-.

Apart from the amount of Rs.75,000/- which was paid under the earlier agreement from 1971 to 1973 further sums amounting to Rs.8,200/- were also paid, the last payment being on 20-7-1973. Thereafter the plaintiff filed the suit in the year 1974 and therefore they are necessary parties to the suit. The plaintiff has admitted in two agreements and the receipt of a total sum of Rs.82,000/- under agreements. But according to her, the first petitioner is a mere nominee and benamidar for the second petitioner. One Nagabhusan Rao is a friend and partner of the second petitioner. That Nagabhusana Rao was arrested in connection with cheating and misappropriation of public funds sometime in 1972 or 1973 and in that connection all the records of the said Nagabhusan Rao were seized by the Police. The second petitioner represented to her husband that all the records Nagasbhushan Rao were seized by the police and since his partner is involved in the cheating case all the agreements and money receipts were not available with him and also he is in serious trouble with reference to income-tax and criminal matters and since he does not have the necessary money and capacity he is not willing to pursue the matter and accordingly requested her husband after the expiry of her mother to cancel the agreement and refund the amount received under the agreements.

Her husband with great difficulty by disposing of a tourist bus which he was running then and his other assets and also by raising loans paid away to the 2nd petitioner a total sum of Rs.82,000/- on 16-11-1973 towards refund of the moneys received under the agreements and he passed a receipt. In support of her case, the plaintiff also filed a photo-state copy of the receipt. It is the further case of the plaintiff that on the ground that the agreements were said to have been seized by the Police from the second petitioner's partner Nagabhushan Rao, the same were not returned to her husband and it was so mentioned in the receipt.

2. Thus according to the plaintiff there is no longer any subsisting agreement of sale with regard to the suit land and the agreements entered into by her mother was cancelled.

3. The Additional Chief Judge, City Civil Court, on these facts did not think it proper to add the petitioners as defendants to the suit and accordingly dismissed their petition. It is against that order this revision is directed.

4. Where a person applies to be made a party, what the Court ought to see is whether there is anything in the suit which cannot be determined owing to his absence or whether there will be prejudice by his not being added as a party. Order 1, Rule 10 cannot be read as requiring that all persons who are likely to have any sort of right, title or interest in respect of the subject-matter of a suit should be made parties to it. 'Questions involved in the suit refer only to questions between the parties to the suit. They refer only to questions as between the plaintiffs and the defendants and not to questions which may arise between a party to the suit and a third party. The procedure under Order 1, Rule 10 should always be adopted where it is really necessary for a complete adjudication under the questions involved in the suit and to avoid multiplicity of proceedings. Order 1, Rule 10 cannot be resorted to where there is no need for adding new parties for adjudication upon the questions involved in the suit.

5. The question involved in the suit is whether Mahabubunissa Begum, the mother of the plaintiff was the owner of the suit land and therefore the plaintiff is entitled to possession of the suit land or alternatively for compensation against the defendants, viz., the Government of Andhra Pradesh and the Praga Tools Corporation as prayed by her. According to the claim of the petitioners they have a subsisting agreement of sale in their favour for the suit property. When the agreement is not admitted the remedy for them is only to file a suit against the plaintiff for specific performance of the agreement of sale. The dispute between the plaintiff and the petitioners need not be gone into before any relief can be granted to the plaintiff in the present suit filed against the Government. It is not even the case of the petitioners that the plaintiff is likely to collude with the Government and the Praga Tools Corporation and therefore their presence is necessary in the suit to protect their interests. Nothing prevents them from straightway filing a suit for specific performance of the agreement of sale making the Government of Andhra Pradesh and the Praga Tools Corporation also parties and thus prevent any collusion between the plaintiff and then even if it is so suspected. Merely because the petitioners alleged a subsisting agreement of sale and more so when it was not admitted by the plaintiff it is not possible to say that the petitioners are either necessary or proper parties and therefore they should be made parties to the suit. The petitioners cannot be added as parties merely on the ground that if may save them the expense of a separate suit for seeking adjudication on the agreement of sale in question which is not directly and substantially in the suit. I entirely agree with the observations made by R.S. Sarkaria, J., in Banarasi Dass v. Panna Lal, that :

'As a rule the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litis. He is the master of the suit. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief.'

6. Therefore, I do not find any merits in the revision and accordingly it is dismissed with costs.

7. Revision dismissed.


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