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Judgment
A.N. Venugopala Gowda, J.—The case of the Plaintiff in brief is that, Govindaswamy Naidu was the owner of the suit property, agreed to sell the same in her favour for Rs. 10,000/-, received the agreed consideration amount and executed the agreement dated 21.03.1979, possession of the property was delivered even prior to the agreement and the sale deed was assured to be executed within three months on obtaining the ULC permission, but went on postponing the execution of sale deed. Govindaswamy Naidu died on 15.05.1980. The Defendants were requested to execute the sale deed and even a notice dated 13.02.1984 was issued, to which an untenable reply dated 24.02.1984 was got sent and hence, the suit was filed.
The Defendants filed written statement on 25.03.1986 contending that, to make wrongful gain and to deprive the right of the Defendants, false suit has been filed. The execution of the agreement to sell, payment of the sale consideration amount and delivery of possession of suit property were denied. It was stated that, Plaintiff had filed O.S. No. 515/1984 for permanent injunction and that, the 1st Defendant filed O.S. No. 552/1985 against the Plaintiff in respect of the suit: property and an order of temporary injunction was granted. The obligation to execute the sale deed in respect of the suit property was denied and so also the averments made in the plaint. It was contended that, after the death of Govindaswamy Naidu, Defendants are in possession of the suit property. It was also contended that, the suit is bad for non-joinder of all the legal heirs of deceased Govindaswamy Naidu. Additional written statement was filed by the 3rd Defendant on 31.01.1996, wherein, it was contended that, there is mis-description of the property in the plaint schedule and that the suit is vexatious. The 1st Defendant died on 03.10.1999. Application to bring the L.Rs on record was not filed.
Based on the material pleadings, issues were framed. Plaintiff deposed as PW-1 and one H. Chandrappa was examined as PW-2. The 2nd Defendant deposed as DW-1. For the Plaintiffs, Ex.P-1 to Ex.P-5 were marked and for the Defendants, Ex.D-1 to Ex.D-15 were marked. Upon appreciation of the evidence, the trial court answered issue Nos. 1, 3 & 4 in the affirmative, issue No. 2 in the negative and dismissed the suit by a judgment dated 29.01.2002. Aggrieved, L.Rs of the Plaintiff have filed the appeal. Defendants 2 & 3 have filed the cross-objection.
The L.Rs of the Plaintiff filed I. As No. 1, 2 & 3 of 2005, seeking permission to bring the L Rs of deceased 1st Respondent/1st Defendant on record. The said applications were allowed by an order dated 08.06.2006. Respondents 1(a) to 1(c) have been brought on record of the appeal pursuant to the said order.
Sri C.G. Gopalaswamy, learned Counsel appearing for the L Rs of the Appellant, raised contentions in terms of the grounds raised in the appeal memorandum and contended that, the trial court has committed error and illegality in dismissing the suit. learned Counsel contended that, the findings recorded by the trial court to dismiss the suit are perverse and contradictory. Learned Counsel submits that, the dismissal decree passed by the trial court is wholly erroneous and illegal.
Sri M.V. Chandra Shekara Reddy, learned Counsel appearing for the Respondents 2 & 3 contended that, the Plaintiff has failed to prove the due execution of the alleged agreement to sell dated 21.03.1979 (Ex.P-5). There is also no proof with regard to delivery of possession of suit property and its alleged improvement. There being a specific plea with regard to non-joinder of necessary parties and despite the specific issue raised, the non-impleading of all the heirs of Govindaswamy Naidu, being now not in dispute, the suit is bad for non-joinder of necessary parties. Learned Counsel contends that, the findings recorded by the trial court in favour of the Plaintiff are contrary to the material on record, perverse and illegal.
Sri L.M. Ramaiah Gowda, learned Counsel appearing for the L Rs of the 1st Respondent submits that, Respondents 1(a) to 1(c) have acquired right over the suit property upon the demise of their father Govindaswamy Naidu, on 15.05.1980. The said Respondents, who have independent right in the suit property, were not impleaded as parties to the suit, which was filed on 07.03.1985. Though the 1st Defendant died on 03.10.1999, steps were not taken to bring Respondents 1(a) to 1(c) on record of the suit, which was dismissed on 29.01.2002. Only in the appeal, I. As No. 1 to 3 of 2005 having been filed, after passing of the order dated 08.06.2006, the Respondents 1(a) to 1(c) have been brought on record as L Rs of deceased 1st Respondent. Learned Counsel contends that, the Respondents 1(a) to 1(c) having independent right and undivided share in the suit property, having not been impleaded as parties to the suit, the dismissal of the suit is justified, as necessary parties, namely Respondents 1(a) to 1(c) were not impleaded.
Keeping in view the rival contentions, the main point for consideration is.
Whether the suit was bad for non-joinder of necessary parties?
Undisputedly, the suit property belonged to Govindaswamy Naidu. The Plaintiff has putforth claim over the suit property, based on the agreement to sell dated 21.03.1979, marked as Ex.P-5. Govindaswamy Naidu has expired on 15.05.1980 leaving behind him, his wife -Defendant No. 1, Defendants 2 & 3 and Respondents 1(a) to 1(c). Prior to the institution of the suit, Plaintiff got a notice issued to the Defendants 1 to 3 on 13.02.1984, marked as Ex.P-3. A reply as per Ex.P-4 was got sent by the Defendants on 24.02.1984. The suit was instituted on 07.03.1985. In the written statement filed on 25.03.1986, there is a specific plea with regard to suit being bad for non-joinder of parties i.e., all the L Rs of deceased Govindaswamy Naidu. Issue No. 4 relates to the non-joinder of legal heirs of deceased Govindaswamy Naidu. The trial having taken place, the 1st Plaintiff has deposed as PW-1 and the 2nd Defendant has deposed as DW-1. 1st Defendant has died on 03.10.1999. Respondents 1(a) to 1(c) have been brought on record of this appeal. Indisputedly, the Respondents 1(a) to 1(c) are the children of Late Govindaswamy Naidu and in view of the death of Govindaswamy Naidu on 15.05.1980, they have acquired undivided right in the suit property. The trial court has held that, in the absence of all the L Rs of Govindaswamy Naidu, it is not just to grant the decree.
Indisputedly, in the written statement filed to the suit, the Defendants did not disclose the name and address of other children of Late Govindaswamy Naidu. Nothing has been elicited in the cross-examination of PW-1 with regard to the Plaintiff having knowledge of other L Rs of Govindaswamy Naidu and their non-impleading in the suit. DW-1, for the first time disclosed that, they are three brothers and two sisters. In the cross-examination, he has stated that, his brother Krishnamurthy is in Ulsoor and he has pleaded ignorance as to whether they have informed the court about their brother Krishnamurthy. Though he has stated that he knows the address of his brothers and sisters and has no difficulty in furnishing the same, has not furnished the particulars. On 08.06.2006, while allowing I.A. No. 1 to 3 of 2005 to bring Respondents 1(a) to 1(c) on record as L Rs of deceased 1st Respondent, it has been held as follows:
The Respondents 2 and 3 who are the L.Rs of the deceased R-1 have not intimated the trial court as to who the other L.Rs were and their addresses. In the absence of the same, the Appellants could not have brought the present proposed L.Rs on record during the pendency of the suit. In that view of the matter, I am satisfied with the explanation given by the Appellants regarding the delay in filing the L.R application and allowing I.A.1, the delay is condoned, the abatement of the suit and also appeal against the Defendant No. 1/Respondent No. 1 is set aside and the proposed L.Rs are permitted to be brought on record as R-1(a) to R-1(c).
The said finding has attained finality.
Thus, it is evident that, the Plaintiff and her L Rs did not had the knowledge of Govindaswamy Naidu leaving behind him R-1(a) to R-1(c). The non-impleading of the said Respondents in the suit appears to be bonafide.
However, Respondents 1(a) to 1(c), in view of the death of Govindaswamy Naidu on 15.05.1980, have equal right along with Defendants 1 to 3 in the suit property. Respondents 1(a) to 1(c) are required to be formally impleaded in the suit, since their right cannot be adjudicated and the appeal finally decided. In my opinion, this is a fit case where this Court should exercise the power of remand under Order 41 Rule 23-A Code of Civil Procedure. Consequently, the appeal stands allowed and the impugned judgment and decree is hereby set aside.
The L.Rs of the Plaintiff are permitted to file a forma'' application to implead Respondents 1(a) to 1(c) not only as the L.Rs of deceased Defendant No. 1 but also as parties to the suit.
The trial court is directed to permit the Plaintiff to implead Respondents 1(a) to 1(c) as Defendants 4, 5 & 6, who are granted three weeks time from the date of first appearance, to file their written statement.
The trial court to raise the additional issues if any, on account of the written statement that may be filed by the added Defendants.
Both the parties may be given opportunity to lead additional evidence on the issues involved and decide the suit afresh in accordance with law. The trial court to decide the suit with utmost expedition.
The parties without waiting for any court notice issued by the trial court, to appear before the trial court or, 10.12.2010 and receive further orders.
The trial court shall decide the suit within a period of six months from the date the suit is posted for trial.
In view of the order of remand, the parties are directed to bear their respective costs in this appeal and cross-objection.
The cross-objection does not survive for consideration.
Ordered accordingly.