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1998 DIGILAW 1100 (MAD)

Pattusamy v. Kandasamy

1998-08-18

V.KANAGARAJ

body1998
Judgment :- 1. Heard the learned counsel for both and perused the records placed before me. 2. The above revision petition is directed against the fair and decretal order dated 9.3.1998 made in I.A.No.112 of 1998 in O.S.No.126 of 1997 by the Court of District Munsif, Sankari, thereby dismissing an application filed by the petitioner herein under O.1, Rule 10 of the Code of Civil Procedure praying to implead him as necessary party to the above suit and bringing him on record as the 5th defendant therein. 3. 3. The learned counsel for the petitioner would contend that the above said suit in O.S.No.126 of 1997 in which he has filed an application as third party petitioner to implead him as necessary party to the above proceedings thus bringing him on record as the 5th defendant therein is the suit for permanent injunction filed by the sole respondent herein, making the entire harijan community of the village as the defendants therein and naming the defendants 1 to 4 therein as representatives of the entire community people residing at Pallipatkatchapalli village of Sankari Taluk, that the suit property is an agricultural land falling under S.Nos.273/13 and 273/1A of the said village extending to 1.90 acres; that the respondent herein has also entered into an agreement of sale with the petitioner herein on 16.9.96 thereby agreeing to sell the suit property for a consideration of Rs.30,000 in favour of the revision petitioner and on receipt of a major sum of Rs.25,000 as advance had also put the petitioner in physical possession of the suit property thus giving effect to Sec.53-A of the Transfer of Property Act, that he had also filed a suit in O.S.No.432 of 1997 on the file of the Sub Court, Sankari for specific performance of the contract against the respondent, that his specific case is that the four defendants shown as representatives of the community people of the village are only his relatives and he being the main person concerned with the suit property, especially as an agreement holder and in part performance of the same, he has been left out in the above suit filed by the respondent seeking permanent injunction under pretext that he is still in physical possession of the suit property and hence would ascertain that the petitioner herein is the necessary party to the above proceedings and the trial court without proper consideration of the facts and circumstances of the case and without having a comparative study of the case in hand with that of the civil suit filed by the petitioner had erroneously concluded to dismiss the application filed by the petitioner under O.1, Rule 10 of C.P.C. 4. In reply, the learned counsel appearing for the respondent would contend that though there is yet another suit filed by the petitioner herein is pending before the court of Subordinate Judge, Sankari the suit in hand has been filed by the respondent based on his possession of the suit property and still he is only the owner of the said property and hence since there had been disturbance by the particular community people represented by the defendants 1 to 4 in O.S.No.126 of 1997, they were rightly made parties to the proceedings and that the petitioner is not a necessary party in the above suit filed by him and would justify the dismissal of the application filed by the petitioner herein. 5. The arguments advanced on the part of the learned counsel for the respondent would hold water if the petitioners case is that he is a mere agreement holder. On the contrary, he is not a mere agreement holder, but an agreement holder in physical possession of the suit properties on part performance of the contract thus giving effect to Sec.53-A of the Transfer of Property Act. The petitioners such of the contentions seem to be agreeable in the light of the agreement entered into in between the petitioner and the respondent pertaining to the sale of the suit property in favour of the petitioner in parting with a major portion of the sale consideration of Rs.25,000 from out of the sale consideration of Rs.30,000. The petitioners such of the contentions seem to be agreeable in the light of the agreement entered into in between the petitioner and the respondent pertaining to the sale of the suit property in favour of the petitioner in parting with a major portion of the sale consideration of Rs.25,000 from out of the sale consideration of Rs.30,000. The probability for the possession having been transferred to the petitioner is quite reasonable and since the suit in hand said to have been filed by the respondent herein is also for bare injunction based on his averments claiming to be in possession, this Court is of the firm conviction that the third party petitioner is a necessary party to the above proceedings of O.S.No. 126 of 1997, though not as the representative of the community men of the entire village as the defendants 1 to 4 have been arrayed but as a party himself interested with the affairs of the suit property, since claiming to be an agreement holder in physical possession of the same and hence necessarily he has to be made a party to the proceedings and it is hereby ordered that the petitioner herein has to be brought on record as the 5th defendant in O.S.No.126 of 1997 as the 5th defendant to defend the suit on his own behalf and not as in his representative capacity representing the community men of the entire village. 6. The lower court has committed patent errors and perversity in approach in not considering the vital aspects involved so far as the application filed by the petitioner herein before it under O.1, Rule 10 of C.P.C. is concerned thereby seeking to implead him as a necessary party to the suit proceedings and in the above circumstances, the interference of this Court is quite imminent and warranted. 7. In result, the revision petition is allowed setting aside the fair an decretal order passed by the Court of District Munsif, Sankari in I.A.No.212 of 1998 in O.S.No.126 of 1997, dated 9.3.1998. However, in the circumstances of the case, there shall be no order as to costs, Consequently, C.M.P.No.5085 of 1998 is closed. 7. In result, the revision petition is allowed setting aside the fair an decretal order passed by the Court of District Munsif, Sankari in I.A.No.212 of 1998 in O.S.No.126 of 1997, dated 9.3.1998. However, in the circumstances of the case, there shall be no order as to costs, Consequently, C.M.P.No.5085 of 1998 is closed. Since both the suits in O.S.No.126 of 1997 pending on the file of D.M.C. Sankari and O.S.No.432 of 1997 pending in the file of Sub Court, Sankari are interconnected, interrelated and interwoven together, the parties are advised to get the suit in hand i.e., O.S.No.126 of 1997 transferred to the file of the Sub Court, Sankari by filing the necessary transfer application before the appropriate forum of law for having a joint trial of both the suits by one and the same court, i.e., the court of Subordinate Judge, Sankari for proper appreciation of the evidence and to deliver a binding judgment.