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2024 DIGILAW 768 (TS)

B. Sudhakar v. Farhat Sultana

2024-09-19

P.SREE SUDHA

body2024
ORDER : 1. Civil Revision Petition No. 2871 of 2023 is filed against the order dated 24.03.2023 passed in I.A. No. 920 of 2022 in O.S. No. 5427 of 2007 on the file of the VII Junior Civil Judge, City Civil Court, Hyderabad. 2. Civil Revision Petition No. 1692 of 2023 is filed against the order dated 23.03.2023 passed in I.A. No. 12 of 2023 in O.S. No. 5427 of 2007 passed by the VII Junior Civil Judge, City Civil Court, Hyderabad. 3. An application in I.A. No. 920 of 2022 is filed by the petitioner under Rule 10 of Order I read with Section 151 of CPC to implead the petitioner as plaintiff No. 8 in O.S. No. 5427 of 2007. 4. An application in I.A. No. 12 of 2023 is filed by the petitioner under Rule 10 of Order I read with Section 151 of CPC to implead the petitioner as defendant No. 9 in O.S. No. 5427 of 2007. 5. Both the applications are filed by different petitioners in the same suit and this Court finds it reasonable to pass a common order in both the applications. 6. O.S. No. 5427 of 2007 is filed for cancellation of sale deed vide document No. 2453 of 1960 dated 14.10.1960 for ancillary relief of possession. Plaintiff stated that late Omar Bin Awad Award AAqqiti @ Shamsheer Nawaz Jung during his life time purchased a garden property named as Machalk Cheruvu House along with tiled roof and one water well to an extent of Ac. 2.34 guntas in Survey No. 78/3 (old) corresponding to New survey No. 106 situated at Shaikpet Village and Mandal, Hyderabad under registered Sale deed bearing Document No. 508/1339 Fasil dated 13th Isfandar 1339 Fasli Correspondent to 1929 A.D from Hashmat Bee, which is hereinafter called as the suit property and described more in detail in the schedule attached in this Suit. It was further submitted that Omar Bin Awad Al-Aqquiti who is also known as Nawab Shamsheer Nawaz Jung S/o Late Nawab Sultan Nawaz Jung, Shamsheer Ul Mulk, executed a Registered Gift Deed bearing No. 36 of 1345 Fasli (corresponding to 1935 A.D.) on 8th Azur 1345 Fasli of R.O. Hyderabad in favour of his 4th son Awad Bin Omar, who was minor at the age of 14 years and was under the guardianship of his real elder brother Hussain Bin Omer. It is further stated that Sri Awad Bin Omar died on 23.11.1988 as per the death certificate No. 355 dated 30.12.1988 issued by MCH leaving behind the plaintiffs as his legal heirs, legal representatives and successors. It was further contended that, as per encumbrance certificates No. 2199/2006 dated 18.03.2006 and No. 17445/2005 dated 29.10.2005. It was further contended that there is no sale, gift and will deed executed by Awad Bin Omar in respect of the above said property. As such, the above said property still stands in the name of Awad Bin Omer till to date. Therefore, the plaintiffs have inherited the properties by virtue of succession and thus became absolute owners of the suit property. It was further submitted that the late Awad Bin Omar was minor and was under the guardianship of his brother Hussain Bin Omar when the Gift Deed was executed. The said document remained in the custody of the brother Hussain Bin Omar who neither delivered the Gift deed nor disclosed above the Gift Deed in his life time. As a result, late Awad Bin Omar was totally unaware about the property gifted to him. The said fact of the Gift Deed was subsequently brought to the notice of the plaintiffs by one of their close relatives hereby the plaintiff No. 5, Ali Bin Awad obtained certified copy of the Gift Deed from the District Registrar Office, Hyderabad on 21.12.2004. Similarly, the 5th plaintiff also obtained certified copies pertaining to succession enquiry of Shahazadi Begum conducted by the Nazim Atiyal. After securing the records, the 5th plaintiff made an application on 17.02.2006 to the Collector, Hyderabad to mutate the names of the plaintiffs in the revenue records and also to issue NOC. During the course of enquiry, spot inspection was conducted by the Revenue Authority and it was found that the defendants are in possession of the suit property being the legal heirs of one Mammilla Narasimha, who in turn acquired the suit property under a Registered Sale Deed bearing Document No. 2453/1960 which is alleged to have been executed by Shazadi Begum W/o. Awad Bin Omar. The certified copy of the said sale deed is being filed herewith and is marked as document No. 5. The MRO, Shaikpet submitted his report to the RDO, Secunderabad. The certified copy of the said sale deed is being filed herewith and is marked as document No. 5. The MRO, Shaikpet submitted his report to the RDO, Secunderabad. After examination of the report of MRO, Shaikpet and after perusal of the material on record, the RDO, Secunderabad concluded that Shazadi Begum died on 13.10.1931, from whom Mammilla Narasimha claimed to have purchased the above said property vide registered sale deed No. 2543/1960 dated 14.10.1960. As such, the deceased lady cannot execute the sale deed after her demise and based on this fake registered document, Mamilla Narasimha got validation certificate No. D. Dis A3/3984/68 dated 07.11.1968 under Sub Section (2) of Section 50-B of A.P. (TA) Tenancy Act, 1950 by playing fraud and by securing the presence of a proxy lady impersonating as Shazadi Begum both in the Registrar’s Office, Hyderabad and also before the Tahasildar Hyderabad Urban. However, the said petition was dismissed by the Joint Collector by an order dated 25.05.2007. As such, this suit is filed for cancellation of sale deed dated 14.10.1960. During the pendency of the proceedings, I.A. No. 920 of 2022 is filed by the petitioner on 07.11.2019 to implead the petitioner as plaintiff No. 8 in O.S. No. 5427 of 2007 and I.A. No. 12 of 2023 is filed by the another petitioner to implead the petitioner as defendant No. 9 in O.S. No. 5427 of 2007. 7. Plaintiff Nos.1 to 7 filed a suit for cancellation of sale deed against defendant Nos. 8 to 15. But defendants filed I.A. No. 798 of 2007 in O.S. No. 5427 of 2007 for the relief of rejection of plaint and it was dismissed on 18.08.2008. Against which defendant Nos.8 to 15 herein preferred C.R.P. No. 4176 of 2008 and it was dismissed on 13.03.2012. Aggrieved by the said order defendant Nos. 8 to 15 herein preferred SLP (Civil) No. 25263 of 2012 before the Hon’ble Supreme Court and the said SLP was dismissed on 16.11.2022 and the Hon’ble Supreme Court directed the trial Court to dispose the suit expeditiously but not later than one year. It is stated that Plaintiff Nos.1 to 5 along with three others had entered into a registered agreement of sale with General Power of Attorney with petitioner herein on 05.12.2005 vide document No. 4254 of 2005. It is stated that Plaintiff Nos.1 to 5 along with three others had entered into a registered agreement of sale with General Power of Attorney with petitioner herein on 05.12.2005 vide document No. 4254 of 2005. That at the time of filing the suit, petitioner was not joined as co-plaintiff as the plaintiffs had promised to prosecute the suit effectively but the entire expenditure for the prosecution of the suit was incurred by the petitioner at the request of plaintiffs based on registered agreement of sale-cum-GPA. It was further contended that petitioner has substantial interest in the above suit, in terms of the registered agreement of sale and having part performed obligations in terms of the said AGPA and advanced amounts to the plaintiffs herein. After filing of the suit some of the plaintiffs are trying to further litigate the matter by trying to enter into agreement of sale with third parties to jeopardize the right and interest of the petitioner as an agreement holder and GPA. Therefore, to safeguard the interest petitioner has filed this petition to implead him as party to the present suit proceedings and thus requested the Court to allow the application. 8. In a counter filed by respondent Nos.8 to 15, they denied the allegations and stated that he came up with this application after lapse of 16 years without disclosing any cause of action. Respondents purchased the suit property in the year 1960 under a registered sale deed but the suit is filed in the year 2007 seeking the relief of suit for cancellation of sale deed. The present application and I.A. No. 901 of 2023 filed by one Mr. Sudhakar, are got filed at the behest of the plaintiffs to delay and complicate the suit. The pleading in I.A. No. 901 of 2023 therein and in the present implead petition are one and the same, which establishes the collusion. The petitioner is claiming as agreement holder No. 2 of the plaintiff under the alleged Registered Agreement-cum-General Power of Attorney dated 05.12.2005 vide document No. 4254/2005 i.e. said to have been executed prior to the filing of the present suit. In view of Section 54 of Transfer of Property Act, 1882, no right or interest can be claimed on the basis of such agreement. Any such claims have to be agitated against the parties to the agreement by way of independent suit. In view of Section 54 of Transfer of Property Act, 1882, no right or interest can be claimed on the basis of such agreement. Any such claims have to be agitated against the parties to the agreement by way of independent suit. The alleged agreement shows that it was executed in favour of three persons and out of them agreement holder No. 1 already filed implead petition in I.A. No. 901 of 2023 and the petitioner filed the present petition in individual capacity and this is not the forum to agitate their claim and such claims are beyond the scope of the suit. The suit will be multifarious if such I.As are allowed. Agreement of Sale does not confer any right or title in favour of the petitioner herein and the petitioner is neither a proper nor necessary party to the present suit as such he has no manner or right, title or interest whatsoever to file the present application to implead him in the present suit which is filed for cancellation of the sale deed, possession and injunction. The alleged rights of the petitioner if any cannot be the subject matter of adjudication in the present suit and the petitioner has to take appropriate steps or remedies available to him as per law to get adjudication of his alleged independent right or interest or claim against his vendees over the property be seeking appropriate relief and by paying Court fee and he is trying to claim for specific performance of an agreement which cannot be permitted in the present suit and his impleadment leads to multifariousness and will ultimately change the nature and character of the present suit which is impermissible under law. Petitioner himself stated that he knows about the filing of the present suit as GPA Holder but deliberately kept quiet for more than 17 years to file the petition to implead himself in the present suit and came before this Court without any bona fides or valid reasons and is trying to mix up his independent claim into the present suit. The purpose of the IA is speculative and present suit is bogus, fraudulent and persons claiming this fraud does not have valid title and present application is abuse of process of law and is not maintainable either on fact or on law and he denied the contention of the petition and requested the Court to dismiss the application. 9. The trial Court considering the arguments of both sides dismissed the application. Aggrieved by the said order CRP is preferred in which it was held that he was impleaded by the Hon’ble Supreme Court in SLP (Civil) No. 25263 of 2012 vide orders passed in I.A. No. 4 of 2016 dated 16.11.2022 SLP was filed by defendant Nos.1 to 8 against the orders dated 13.03.2012 in the CRP filed for rejection of plaint as Mr. Sudhakar was impleaded in the above said SLP and it is also contended that petitioner in C.R.P. No. 1692 of 2023 i.e. Mr.Shahid Siddiqui is also to be impleaded on the same footing as a co-agreement holder but the trial Court dismissed the implead application on 24.03.2023. The trial Court observed that plaintiff is dominus littus but the plaintiff in the suit reported no counter and they have no objection to implead the petitioner as proposed defendant No. 9 and they have not disputed validity or genunity of GPA and petitioner cannot deny the right to implead as he is agreement holder and he paid part of the sale consideration. He has enforceable right and interest in the suit schedule property. The trial Court observed that by virtue of funding the litigation he has only commercial interest and he is not bound by the result of the suit and his presence is not necessary for effective adjudication of the case. An agreement of sale for GPA was entered on 05.12.2005 and the perusal of the same shows that Sudhakar, Shahid Siddiqui and some other persons shown as vendees. It was also argued that in a criminal case Shahid Siddiqiu is shown as accused No. 1 and Sudhakar is shown as accused No. 3. A criminal petition vide Crl. Pet. No. 6384 of 2021 is filed for quash was withdrawn and C.C. No. 4507 of 2019 is pending before the trial Court, the parties herein are arrayed as petitioners and respondent as in the trial Court for the sake of convenience. 10. A criminal petition vide Crl. Pet. No. 6384 of 2021 is filed for quash was withdrawn and C.C. No. 4507 of 2019 is pending before the trial Court, the parties herein are arrayed as petitioners and respondent as in the trial Court for the sake of convenience. 10. It is contended by learned counsel for the respondents that as per the agreement of sale with GPA sale consideration is of Rs.75,00,000/- (Rupees Seventy Five Lakhs only) and paid Rs.2,00,000/- (Rupees Two Lakhs only) and remain sale consideration of Rs.73,00,000/- (Rupees Seventy Three Lakhs) has to be paid. Therefore, it cannot be said that substantial rights involved in the suit. Though suit was filed in the year 2007 and petitioner has knowledge of the same but he kept quiet and not filed implead application for 17 years. An application for rejection of plaint was dismissed in the trial Court and SLP preferred before the Supreme Court in which Sudhakar filed implead application and it was allowed. But when they filed implead application before the trial Court it was dismissed as such they preferred this CRP. The suit is filed for cancellation of registered sale deed vide registered sale deed No. 2543/1960 dated 14.10.1960. The petitioners herein are agreement holders from 05.12.2005. The said agreement was entered prior to the filing of the suit. But from 2005 they have not filed any suit for specific performance in spite of filing independent suit, now they want to implead in the suit. Learned counsel for the petitioners stated that they are only proper parties but not necessary parties. Learned counsel for the petitioners further stated that they have interest in the suit schedule property and plaintiffs are trying to enter into agreement of sale with third parties as such to safeguard his interest they filed these applications for impleadment. Learned counsel for petitioners mainly contended that when Sudhakar was permitted to implead in the SLP, the trial Court dismissed the application. The trial Court observed that petitioner has to establish that he has direct interest over the suit schedule property but he himself stated that he funded the plaint and it amounts to commercial interest but not direct interest. Petitioners stated that they are bound by the result of the suit and another contention of the plaintiffs is that the plaintiffs are dominus littus and they have no objection for impleading them. Petitioners stated that they are bound by the result of the suit and another contention of the plaintiffs is that the plaintiffs are dominus littus and they have no objection for impleading them. Therefore, the contention of the respondent Nos. 8 to 15 cannot be accepted. Admittedly, Mr. Sudhakar was impleaded in the SLP in I.A. No. 4 of 2016. Learned counsel for the petitioners relied upon a citation reported in Smt. Khadirunnisa Begum v. D.S.N. Raju and Others, 2015 SCC Online Hyderabad 82 in which it was held that: “Under Order I Rule 10 CPC, the Court is empowered to strike out or add parties and such power has to be exercised in a judicious manner. The petitioners claim interest over the property and it is their pleaded case that if declaration of title in respect of the suit schedule property is granted in favour of the plaintiffs, their interests will suffer. Irrespective of the merits of the claim of the petitioners, their impleadment would avoid multiplicity of proceedings, in that, the necessity for them to file a separate suit can be obviated if the present suit is decided in their presence. Curiously, respondent Nos. 1 to 24/plaintiffs have not opposed the application of the petitioners, while respondent No. 25 who alone is the contesting defendant has opposed the said application. Respondent No. 25 has not explained as to how his interest will be affected by the presence of the petitioners.” He further relied upon another citation reported in Mumbai International Pvt. Ltd. v. Regency Convention Centre and Hotels Pvt. Ltd. 2010 (7) SCC 417 in which it was held as follows: “The general rule in regard to impleadment of parties is that the plaintiff in a suit, being a dominus litus, may choose the persons against whome he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10 (2) of the Code of Civil Procedure (‘the Code’ for short), which provides for impleadment of proper or necessary parties.” Learned counsel for the petitioners further relied upon guidelines in Vidur Impex and Traders Pvt. Ltd. v. Tosh Apartments Pvt. Ltd. which reads as follows: “1. But this general rule is subject to the provisions of Order 1 Rule 10 (2) of the Code of Civil Procedure (‘the Code’ for short), which provides for impleadment of proper or necessary parties.” Learned counsel for the petitioners further relied upon guidelines in Vidur Impex and Traders Pvt. Ltd. v. Tosh Apartments Pvt. Ltd. which reads as follows: “1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who filed application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment.” 11. Learned counsel for respondents relied upon a citation reported in Chackadath Varkey Rainu v. Kurampu Savitri and Others, 2019 (SCC) Online AP 45 wherein it was held as follows: “The laudable object of the legislation in inserting Order I Rule 10 C.P.C is to avoid multiplicity of litigation which is obviously and undoubtedly intended for peace and tranquility in the society. Reading of the said provision of wider discretion to either strike off or add any person as plaintiff or defendant whose presence is necessary to effectively and completely adjudicate and settle all the questions involved in the suit.” 12. The main objection of the respondents is that in spite of knowledge of the suit proceedings they kept quiet for 17 long years and came with this application at a belated point of time only to drag on the proceedings. It was also contended that there was specific direction of Hon’ble Supreme Court to conclude the trial within one year in an order passed in the year 2022 and afterwards, they came up with this application only to prolong the litigation. Therefore, this Court finds that it is just and reasonable to grant an opportunity for impleadment of petitioners but on payment of costs to the each petitioner. 13. Considering the arguments of both the learned counsel and on perusal of the entire record, both the revision petitioners are allowed with costs by setting aside the orders dated 24.03.2023 & 23.03.2023 passed in I.A. No. 920 of 2022 and I.A. No. 12 of 2023 in O.S. No. 5427 of 2007 passed by VII Junior Civil Judge, City Civil Court, Hyderabad. Both the petitioners are directed to pay Rs.15,000/- by each of them at District Legal Services Authority of City Civil Court at Hyderabad within a period of one (01) week from the date of this order. As already there was a direction by the Hon’ble Supreme Court to dispose of the matter within a stipulated period of time, this Court finds that it is just and reasonable to direct the trial Court to dispose of the matter within a period of six (06) months from the date of this order and both the parties are also directed to get ready with the matter and cooperate with the trial Court for disposal of the matter within a stipulated period. 14. As a sequel, miscellaneous petitions, pending if any, shall stand closed.