Vijayakumari vs Gangamma and Others

A.V. Chandrashekara, J.

Since both these petitions have arisen out of orders dated 8.12.2014 and 5.12.2014 passed in OS No. 7776/2008 on IA No. 4 filed under Order VI Rule 17 and on IA No. 3 filed under Order I Rule 10(2) read with Section 151 of CPC respectively, they are taken up together for common disposal.

I have heard the matter in detail with the consent of both the counsels and the matter is taken up for final hearing. The petitioner in both the cases is the sole plaintiff in OS No. 7776/2008.

Smt. Vijayakuman, the plaintiff is the daughter of the younger brother of the defendants 1 and 2. Smt. Byramma, plaintiffs mother is the third Respondent herein. Respondent Nos. 4 and 5 herein namely Sri Surendra and Sri Hansh are the brothers of the plaintiff and the sons of the third defendant and late Muniswamappa. Plaintiff has chosen to file a suit for partition and separate partition.

Initially, five items of immovable properties had been included in the suit filed for partition and separate partition. During the pendency of the said suit, an application came to be filed under Order VI Rule 17 of CPC, requesting the court to include one more item as item No. 6 in the schedule appended to the plaint, by the plaintiff. This was objected to by the Respondent No. 2 by filing a detailed objection. Thereafter, the said application was dismissed after contest, as against which, a Writ Petition was filed before this Court in Writ Petition No. 48418/2013 (GM-CPC) and the said Writ Petition was allowed on 22.11.2013 by setting aside the order rejecting the application filed under Order VI Rule 17 read with Section 151 of CPC and permit her to amend the plaint to bring item No. 6 as one of the item in the schedule appended to the plaint.

Consequent upon the order of the Writ Petition in WP No. 48418/2013 by this court, the plaintiff chose to file an application under Order I Rule 10(2) read with Section 151 of CPC to include two persons namely Sri Chmnaswamy Naidu and Sri N. Balaknshna Naidu as defendants 9 and 10 in the said suit. Another application was also filed under Order VI Rule 17 of CPC seeking the relief of declaration to the effect that General Power of Attorney stated to have been executed by Munimarappa and the paternal grand-father of the plaintiff and her father Muniswamappa in favour of the impleading applicants namely Chmnaswamy Naidu and Sri N. Balaknshna Naidu in the year 1996 does not bind her. The said application was contested by the second defendant. Ultimately, IA No. 4 filed under Order 6 Rule 17 of CPC came to be dismissed, as against which, Writ Petition No. 4934/2015 is filed. Writ Petition No. 4935/2015 is filed against the order dismissing IA No. 3 under Order I Rule 10(2) of CPC praying to implead Sri Chmnaswamy Naidu and Sri N. Balakrishna Naidu as defendants 9 and 10 in the suit.

The second defendant who is none other than the paternal uncle has filed a detailed written statement. The case put forth by the second defendant in the Trial Court by way of written statement is that all the five items as described in the schedule appended to the plaint were alienated by Munimarappa and Muniswamappa through agreement of sale coupled with a registered power of attorney in favour of Sri Chmnaswamy Naidu and Sri Balakrishna Naidu, way back in the year 1996 i.e., 30.07.1996 and the possession had been handed over to them. It is also averred by them that consequent upon the execution of the agreement of sale coupled with the General Power of Attorney, the attorneys converted the lands in question into non-agriculture purpose and formed a residential lay out and sites carved out have already been sold and that no portion of the suit schedule property is left out in the joint family property.

Sri Chmnaswamy Naidu and Sri Balaknshna Naidu, whom the plaintiff wanted to be impleaded as defendants Nos. 9 and 10 had also filed a detailed objection opposing the petition filed under Order I Rule 10(2) read with Section 151 of CPC contending that as many as 204 residential sites have been carved out in the lay out and all of them sold long back and nothing remained with them.

The learned counsel appearing for the second respondent has vehemently argued that initially when an application filed under Order VI Rule 17 to bring item No. 6 on record, an attempt should have been made to file an application under Order I Rule 10(2) of CPC.

As could be seen from the records, the alienation of item Nos. 1 to 5 had already had taken place long back prior to the filing of the suit and the assertion of the proposed defendants is that they had already formed residential lay out and sold all the sites and nothing has remained with them. It is not as though the plaintiff had no knowledge of the alienation made in 1996 on Munimarappa and Muniswamappa. This has been made in 2009 itself when the defendant filed his written statement.

Without bringing the purchasers of the sites carved out in the residential lay out, the question of bringing the General Power of Attorney holders on suit will be of no consequence and it is in this regard, both the applications i.e., IA Nos. 3 and 4 have been rightly rejected. The learned Judge has exercised his discretion wisely adverting to all the contentions raised by the parties.

In this view of the matter, no grounds are made out to interfere with the impugned order by way of supervisory jurisdiction of this court under Article 227 of the Constitution of India.

Accordingly, both the petitions are dismissed.