Devireddy Surendra Reddy v. Jawahar Peter & Ors.

Order

This civil revision petition under Article 227 of the Constitution of India is filed by the plaintiff in the suit in O.S.No.20 of 2007 on the file of the learned I Additional District Judge, Nellore, aggrieved by the order, dated

07.01.2010, passed in I.A.No.1227 of 2009 in the said suit.

2. By the aforesaid order, the interlocutory application filed by the petitioner under Order 6, Rule 17 of C.P.C. read with Section 22 of the Specific Relief Act, 1963, seeking permission to amend the plaint by adding the additional relief of partition, is rejected.

3. The petitioner herein has filed the suit in O.S.No.20 of 2007, for specific performance of agreement of sale, dated 24.10.2003, stated to have been executed by respondents 1 to 3 on their behalf and also on behalf of

respondent No.4. It is the case of plaintiff that respondent- defendants 1 to 3 have entered into an agreement of sale, dated 24.10.2003, stating that they are the absolute owners of the land covered by Item Nos.1 and 2 of the suit schedule property. It the case of plaintiff respondents 1 to 3 have agreed to sell Item No.1 of the suit schedule property at the rate of Rs.2,50,000/- per acre, and the property covered by Item No.2 at the rate of Rs.3,25,000/- per acre, and it is stated that they are the absolute owners and possessors of the said property. It is also the case of plaintiff that defendants 1 to 3 have executed the agreement on behalf of defendant No.4 also, by assuring to execute the registered sale deed by him also.

4. In the suit, a written statement is filed by defendants 1 to 3. In the written statement filed by the 2nd defendant, which was adopted by defendants 1 and 3, they have denied the allegation that they are the absolute owners of the suit schedule property and it is stated that as per the agreement entered by them, the entire balance consideration was to be paid on or before 27th December 2003, and as the plaintiff has failed to pay such balance amount, he is not entitled to seek for specific performance of agreement. In the written statement, it is stated that the land is originally owned by one Late Sri Anthony Peter, who died intestate, leaving behind his sons and daughters, as such, defendants 1 to 3 alone cannot represent and agree to sell the entire property as there are other shareholders.

5. In view of the stand of respondent-defendants 1 to 3, the petitioner herein has filed an application I.A.No.1227 of 2009 under Order 6 Rule 17 of CPC read with Section 22 of the Specific Relief Act, 1963, seeking to amend the plaint by adding the additional relief of partition. In the above said application, respondent No.2 filed counter affidavit, which was adopted by respondents 1 and 3, by filing separate memos, and respondent No.4 has filed a separate counter. In the counters, it is the case of respondents 1 to 4 that as much as the suit schedule property was the self-acquired property of Late Anthony Peter, who died intestate, leaving behind 4 daughters and 3 sons, all of them are having interest in the plaint schedule property and are entitled for a share in the property. In the counters, it was stated that the suit itself was not maintainable against non-executants of the agreement and the petitioner is not entitled for the relief claimed in the suit. Further, the application was contested mainly on the ground that in the absence of any specific claim for partition in the plaint, petitioner is not entitled to seek for amendment of plaint under Section 22 of the Specific Relief Act.

6. The Court below, mainly by recording a finding that the petitioner is not specified as to how much share he would get if the suit is decreed in his favour, and further observing that there is no specific averment in the plaint with regard to partition, has dismissed the application filed by the petitioner.

7. In this revision, it is contended by Sri M.V.S.Suresh Kumar, learned counsel appearing for petitioner that as much as respondents 1 to 3 have agreed for execution of the agreement of sale in favour of petitioner, the petitioner is entitled for specific performance of the agreement of sale in respect of the shares of respondents 1 to 3, and in that view of the matter, the petition for amendment of plaint to add the relief of partition, ought to have been allowed by the Court below. It is submitted that in view of the provision under Section 22 of the Specific Relief Act, 1963, the Court below ought to have allowed the application. In support of his argument, the learned counsel for petitioner has placed reliance on judgments in the case of Surinder Singh Vs. Kapoor Singh[1] and in the case of P.C.Varghese Vs. Devaki Amma Balambika Devi[2].

8. On the other hand, it is submitted by the learned counsel appearing for respondents that in this case, it is not in dispute that the suit schedule property is originally held by one Late Anthony Peter, who died intestate, leaving behind 4 daughters and 3 sons and all of them are entitled their shares the suit schedule properties, as such, it is submitted that the suit itself is not maintainable against the non-executants of agreement of sale. It is further submitted that in any event, the absence of any specified share respondent-defendants 1 to 3, the petitioner cannot seek for partition.

9. During the course of arguments, learned counsel for the parties have placed on record the copies of plaint and written statement filed in the suit in O.S.No.20 of

2007. The plaintiff herein filed the suit for specific performance of the agreement in respect of the entire suit schedule property. It is the specific averment in the plaint that respondents 1 to 3 are the absolute owners and possessors of the suit schedule property. The said contention is denied in the counter affidavit filed by the respondents. Though the execution of such agreement by respondents 1 to 3 is not in dispute, it is the specific case of respondents that there are other share holders in the suit schedule property and they have not represented that they are the absolute owners and possessors of the suit schedule properties. It is categorically pleaded that the petitioner is not entitled for the shares of other share holders, who have not executed the agreement of sale. It is also pleaded that as much as the time was the essence of contract, and as the balance consideration amount was not paid on or before 27th of December 2003, the petitioner is not entitled for any relief in the suit.

10. In view of the averments made by the learned counsel for the parties, in this case, it is to be noticed that there is no specific claim by the petitioner with regard to the shares of respondent-defendants 1 to 3, who executed the agreement of sale. In the absence of such specification of the shares held by respondents 1 to 3, petitioner cannot seek for amendment of plaint by adding the relief of partition the suit for specific performance of agreement. From a reading of the provision under Section 22 of the Specific Relief Act, 1963, it is clear that notwithstanding anything to the contrary contained in the Code of Civil Procedure, any person suing for the specific performance of a contract for transfer of immovable property may, in an appropriate case, ask for possession, or partition and separate possession of the property, in addition to such performance, but the power to grant such relief under Section 22(1)(a) and (b) is controlled by the provision under Section 22(2) of the Act. A reading of the provision under Section 22(2) of the Act shows that unless there is a specific claim with regard to share, it is not permissible for grant of any decree for partition. In this case on hand, it is not known as to what is the share held by respondents 1 to 3 and even according to the case of the petitioner, there is no such averment in the plaint or in the petition filed in support of this application. In the absence of any such averment showing the specific shares of respondents 1 to 3, who executed the agreement of sale, of which, specific performance is sought for by the plaintiff, he cannot be permitted to amend the plaint to add the relief of partition also.

11. In the judgments relied on by the learned counsel for petitioner, as referred above, it is true that the Hon’ble Apex Court has held in a suit for specific performance, in appropriate cases, the relief of partition, possession, relinquishment, etc., can be permitted to avoid the multiplicity of proceedings, but, whether such relief to be allowed or not, is a matter, which is to be examined with reference to the facts of each case. In view of the provision under Section 22(2) of the Act, it is not permissible for grant of such relief in the absence of any specific claim by the petitioner. It is also to be noticed that though there are several other persons who are entitled for shares, they are not even made party- defendants in the suit. In a suit for partition, it is well established that unless all the shareholders are parties and all the shares are determined, no decree can be passed for partition of a part of the property in favour of some claimants. In that view of the matter, in the absence of all the shareholders being parties to the suit and also in the absence of any specific averment with regard to the shares held by respondent/defendants 1 to 3, the Court below has rightly rejected the application filed by the petitioner for amendment of plaint.

12. For the aforesaid reasons, I do not find any illegality in the impugned order, warranting interference of this Court, in exercise of power under Article 227 of the Constitution of India. Revision is devoid of merit and it is accordingly dismissed. No order as to costs. ______________________ R. SUBHASH REDDY, J November 2010 [1] 2005-ALLWC-2-1685 [2] AIR 2006 BOMBAY-1-151