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Judgment
Justice Ram Mohan Reddy
Respondents in RA No.59/2009 on the file of the Prl. District Judge, Kolar, aggrieved by the judgment and decree dated 30.7.2010 setting aside the judgment and decree dated 1,4.2009 in OS No.7/2008 of the I Addl. Civil Judge, Kolar, have presented this appeal. The appellants instituted OS No.7/2008 for declaration of their 1/36th share for partition and separate possession of the suit schedule property arraying the two brothers respondents 1 and 2 herein as defendants. The parties entered trial and the lower court having regard to the material on record decreed the suit with costs and declared that the plaintiffs were entitled to 1/36th share in the suit schedule property as also possession by metes and bounds. Respondents 1 and 2 filed RA No.59/2009, whence, the 3rd respondent claiming to be the purchaser of the suit schedule property from �lie Mubina who in turn is said to have acquired title by way of a gift of the suit schedule property from respondents 1 and 2 filed IA No.I under Order 1 Rule 10 of CPC to be impleaded as an additional respondent in the appeal. The lower appellate court having observed the assertion of the 3rd respondent more appropriately in the light of the sale deed dated 6.12.2007 conveying the suit schedule property in favour of the applicant therein by the said Mubina being prior to 2.1.2008 the date of institution of the suit, opined that the 3''d respondent was a proper and necessary party to the suit, following the decision of the Apex Court IN SHAW as ANOTHER -VS- FARIDA KHATOON AIR 2005 SC 2209 and also the decision of this Court in Subbanna Vs. Kamaiah, and accordingly allowed the appeal setting aside the judgment and decree of the trial court and remitted the proceeding for fresh consideration, by judgment and decree dated 30.7.2010.
Sri R.Nataraj, learned counsel for the appellant submits that under the Mohammadan law as applicable to Sunnis governing inheritance, the plaintiffs and defendants 1 and 2 being ret_id-daries are entitled to 3/7th share and 4/7th share, respectively, in the suit schedule property left behind by their father which though opposed by defendants 1 and 2, when their relationship was admitted in the written statement, the Lower Appellate Court was not justified in setting aside the judgment and decree of the trial court and remitting the proceeding for a fresh consideration at the instance of the 3rd respondent purchaser of the suit schedule property. In other words learned counsel submits that 3rd respondent is neither a necessary nor a proper party for the complete determination of the dispute between the parties in the suit, by placing reliance upon the decision of the Apex Court in KHEMCHAND SHANKAR CHOUDHARI bIr ANOTHER -V-VISHNU HARI PATIL & OTHERS 3 (1983) 1 SCC 18
Facts not being in dispute that the 3rd respondent purchased the suit schedule property under a deed of conveyance executed by one Mubina, prior to the institution of the suit and that the said Mubina had obtained title to the suit schedule property by way of a gift from defendants 1 and 2 and the said property belonging to the father of the defendants, since deceased, the lower appellate court was fully justified in considering the question as to whether the 3rd respondent was a necessary and proper party for the determination of the lis before the trial court:. It is needless to state that under order 1 Rule 10 of the CPC "the Court may at any stage of the proceeding with or without an application, could add the name of any person who ought to have been joined as a plaintiff or as defendant or whose presence before the court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Therefore, emphasis is necessitated to effectively and completely adjudicate upon and settle all the questions involved in the suit by presence of a person who is proper and necessary.
In the case of Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, observed thus:
The law as to who are necessary or proper parties to a proceeding is well settled. A necessary party is one without whom no order can be made qfectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.
This principle was re-stated by the Apex Court in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, wherein it was further stated that what makes a person necessoxy party is not merely that he has relevant evidence to give on some of the questions involved; that would make him a necessary witness and that, is not merely that he has interest in the correct solution of some question involved and has relevant arguments to advance.
The lower appellate court extracted the opinion of this court in SUBBANNA''S CASL(IRTPRA2), wherein it was held that sub-rule 2 of Rule 10 of CPC empowers the court to direct the plaintiff to odd'' a person to the suit who ought to have done whether as plaintiff or defendant whose presence before the Court is necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit. In addition followed the opinion of the Apex Court in SHAW''S CASE (SUPRA'') whereunder a person acquired interest from the defendant, pendente lite was held to be factually interested 5 Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, in the litigation, since the vendor having no more interest in the property, may not properly defend the suit and may collude with the plaintiff and that he may be joined as party at the discretion of the Court which might be judicially exercised and that the alienee would ordinarily be joined as a party to enable him to protect his interest. In other words being a representative in interest of the party from whom he acquired that interest is entitled to be impleaded in the suit and be heard in the matter on the merits of the case.
in KEYEMCHAND SHANKAR CHOUDHARI''S CASE (SUPRA3), it was held that a transferee pendente lite having an interest in the immovable property subject-matter of suit is a representative in interest of the person from whom he acquired that interest and that the transferee has a right to be impleaded as a party to the proceeding and to be heard before any order is made by virtue of Rule 10 Order 22 CPC and that he can also prefer an appeal against the order made in the said proceeding, but with the leave of the Appellate Court when he is not already brought on record. In addition, it was held that a transferee from a party of a property which is the subject-matter of partition can exercise all of the rights of a transfer or, since a party can ask for an equitable partition, a transferee from him can also do so.
In the light of the opinions aforestated and applying the came to the facts of the case, it is needless to state that the 3r6 respondent is a proper and necessary party. The contention of the learned counsel that the plaintiff''s and defendants 1 & 2 being residuaries, their shares in the suit schedule property being determined under the Mohameden Law, no useful purpose is served by setting aside the judgment and decree of the trial court, in the circumstances is unacceptable. The impleading of the 3rd defendant by the Lower Appellate Court, cannot be said to be illegal or that there is no justification for exercise of discretion under sub-Rule (1) of Rule (2) of Order 10 of the C. P. C. On a fair consideration of the material on record, the order is well merited, fully justified and that it is not shown to suffer from any infirmities in law to call for a different conclusion and interfere with the verdict. Hence no substantial question of law arises for decision making and the appeal is accordingly dismissed. It is made clear that since the suit is of the year 2008, the trial court. there is no reason to believe, will not consider the conclusion of the adjudication in any event by 31/10/2012, provided parties cooperate. Miscellaneous applications are accordingly rejected.