“in order to avoid multiplicity of proceedings, the plaintiff can not only seek relief of specific performance, but also can seek the relief of partition at any stage of the suit”, allowed the application, and therefore, no material irregularity was committed by the trial Court.

HIGH COURT OF ANDHRA PRADESH

TUESDAY ,THE TWENTY FIFTH DAY OF APRIL

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

CIVIL REVISION PETITION NO: 424 OF 2016

Between:

1. M V S M PRASAD, KRISHNA DIST S/o.Nancharaiah, aged about 52

years,

R/o.Bantumilli, Bantumilli Mandal, Krishna District.

...PETITIONER(S)

AND:

1. KOLLA CHANDRA SEKHARA RAO, KRISHNA DIST & 4 OTHERS

R/o.Bantumilli, Bantumilli Mandal, Krishna District.

2. Maddi Venkata Sri Vatsava Nancharaiah S/o.Venkata Surya Murali

Prasad, aged about 27 years, R/o.Bantumilli, Bantumilli Mandal,

Krishna District.

3. Maddi Tulasi Vithal Charan S/o.Venkata Surya Murali Prasad, aged about

23 years, R/o.Bantumilli, Bantumilli Mandal,

Krishna District.

4. Maddi Sri Rekha Padmini Charan D/o.Venkata Surya Murali Prasad, aged

about 19 years, R/o.Bantumilli, Bantumilli Mandal,

Krishna District.

5. Maddi Venkata Veeranjaneya Gupta S/o.Nancharaiah, aged about 49

years,

R/o.Bantumilli, Bantumilli Mandal,

Krishna District.

(Respondents 2 to 5 are not necessary parties in the Revision)

...RESPONDENTS

Counsel for the Petitioner(s): SAI GANGADHAR CHAMARTY

Counsel for the Respondents: K SARVA BHOUMA RAO

The Court made the following: ORDER

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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

C.R.P.No.424 OF 2016

Between:

Maddi Venkata Surya Murali Prasad,

S/o.Nancharaiah, Aged 52 years, Hindu,

R/o.Bantumilli Village and Mandal,

Krishna District.

 ….Petitioner/Defendant No.1.

 Versus

1. Kolla Chandrasekhara Rao,

 S/o.Nancharaiah,

 Hindu, Aged 43 years,

 R/o.Bantumilli Village and Mandal,

 Krishna District.

2. Maddi Venkata Sri Vastsava Nancharaiah,

 S/o.Venkata Surya Murali Prasad,

 Hindu, Aged 27 years,

 R/o.Bantumilli Village and Mandal,

 Krishna District.

3. Maddi Tulasi Vithal Charan,

 S/o.Venkata Surya Murali Prasad,

 Hindu, Aged 23 years,

 R/o.Bantumilli Village and Mandal,

 Krishna District.

4. Maddi Sri Rekha Padmini Charan,

 D/o.Venkata Surya Murali Prasad,

 Hindu, Aged 19 years,

 R/o.Bantumilli Village and Mandal,

 Krishna District.

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5. Maddi Venkata Veeranjaneya Gupta,

 S/o.Nancharaiah,

 Hindu, Aged 49 years,

 R/o.Bantumilli Village and Mandal,

 Krishna District.

 ….Respondents/Defendants No.2 to 5.

DATE OF ORDER PRONOUNCED : 25.04.2023

SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

1. Whether Reporters of Local Newspapers

 may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be

 marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

 fair copy of the Judgment? Yes/No

 ___________________________

 B.V.L.N.CHAKRAVARTHI, J

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HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

+ C.R.P.No.424 OF 2016

% 25.04.2023

# Between:

Maddi Venkata Surya Murali Prasad,

S/o.Nancharaiah, Aged 52 years, Hindu,

R/o.Bantumilli Village and Mandal,

Krishna District.

 ….Petitioner/Defendant No.1.

 Versus

1. Kolla Chandrasekhara Rao,

 S/o.Nancharaiah,

 Hindu, Aged 43 years,

 R/o.Bantumilli Village and Mandal,

 Krishna District.

2. Maddi Venkata Sri Vastsava Nancharaiah,

 S/o.Venkata Surya Murali Prasad,

 Hindu, Aged 27 years,

 R/o.Bantumilli Village and Mandal,

 Krishna District.

3. Maddi Tulasi Vithal Charan,

 S/o.Venkata Surya Murali Prasad,

 Hindu, Aged 23 years,

 R/o.Bantumilli Village and Mandal,

 Krishna District.

4. Maddi Sri Rekha Padmini Charan,

 D/o.Venkata Surya Murali Prasad,

 Hindu, Aged 19 years,

 R/o.Bantumilli Village and Mandal,

 Krishna District.

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5. Maddi Venkata Veeranjaneya Gupta,

 S/o.Nancharaiah, Hindu, Aged 49 years,

 R/o.Bantumilli Village and Mandal,

 Krishna District.

 ….Respondents/Defendants No.2 to 5.

! Counsel for the Petitioner : Sri Sai Gangadhar Chamarty

^ Counsel for the

 Respondent No.1 : Sri K.Sarvabhouma Rao

< Gist:

> Head Note:

? Cases referred:

1) 2007(2) ALT 600

2) AIR 1982 SC 818

3) AIR 2006 SC 145

This Court made the following:

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HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

CIVIL REVISION PETITION No.424 OF 2016

O R D E R:

 Heard Sri Sai Gangadhar Chamarthy, learned counsel for

Revision Petitioner and Sri K.Sarvabhouma Rao, learned counsel for

1st respondent.

02. This Revision Petition is directed against the order dated

06.11.2015 in I.A.No.408/2015 in O.S.233/2005 on the file of

Prl.Senior Civil Judge’s Court, Machilipatnam, where under the trial

Court permitted the plaintiff to amend the plaint seeking relief of

partition apart from the existing relief of specific relief.

03. The learned counsel for Revision Petitioner/1st defendant would

submit that the plaintiff sought amendment when the suit reached the

stage of arguments, and no reason was assigned by the plaintiff why

the amendment seeking relief of partition was not taken before

settlement of issues, as per Order VI, Rule 17 C.P.C., and therefore,

the trial Court committed material irregularity by allowing the

application for amendment for relief of partition of the suit schedule

property.

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04. The learned counsel for 1st respondent/plaintiff would submit

that U/s.22 of Specific Relief Act, in a suit filed for specific

performance, at any stage of the suit, in appropriate cases, the plaintiff

can seek the relief of partition also, and the trial Court relying on the

judgment of this Court in the case of T.Aswini Desai Vs. V.Kondinya

(Diexd) and others1, where under held that “in order to avoid

multiplicity of proceedings, the plaintiff can not only seek relief of

specific performance, but also can seek the relief of partition at any

stage of the suit”, allowed the application, and therefore, no material

irregularity was committed by the trial Court.

05. In the light of above rival contentions, the point that would arise

for consideration in the Revision Petition is as under:

“Whether the trial Court committed any material

irregularity in allowing the application filed by the plaintiff

U/O.VI Rule 17 C.P.C.?”

06. POINT:

Admittedly, the plaintiff filed the suit for the relief of specific

performance of agreement of sale dated 09.02.2001 alleged to be

executed by the 1st defendant in the suit for his half share in the plaint

1

 2007(2) ALT 600

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schedule property. The defendants No.2 to 4 are the children of the 1st

defendant. The 1st defendant contention is that he did not execute the

said sale agreement.

07. The suit reached the stage of arguments. At that stage, the

plaintiff filed application to amend the plaint for the relief of partition,

apart from relief of specific performance. The Revision Petitioner /

1st defendant opposed the application on the ground that at the stage

of arguments, the plaintiff cannot seek amendment of the plaint.

08. The Hon’ble Apex Court in the case of Babu Lal Vs. Hazari Lal

Kishori Lal and others2, considered the scope of section 22 of Specific

Relief Act, which enacts a rule of pleading, and held that “in

appropriate cases, at any stage of the proceedings” in a suit for specific

performance, the plaintiff can ask for proper relief including that of

possession or partition and these reliefs he can claim notwithstanding

anything contained in C.P.C. to the contrary. Further, held that the

Legislature has given ample power to the Court to allow amendment of

the plaint at any stage, including the execution proceedings.

09. In the case on hand, the contention of the plaintiff is that he

purchased half share of the 1st defendant in the plaint schedule

2

 AIR 1982 SC 818

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property under the suit sale agreement. The remaining half share is

with the defendants. Under those circumstances, it is an appropriate

case for seeking the relief of partition also, apart from the relief for

specific performance.

10. Therefore, in the light of above principles laid down by the

Hon’ble Supreme Court, in a case where exclusive possession is with

the contracting party, a decree for specific performance of the contract

of sale simplicitor without specifically providing for delivery of

possession may give complete relief to the plaintiff, but where the

contract between the plaintiff and the defendant, the property falls in

possession of a third person, mere relief of specific performance of

contract of sale may not entitle the plaintiff to obtain possession of

partition as against the party in actual possession of the property. As

against him, a decree for partition must be specifically claimed for

such person is not bound by the contract which to be enforced.

11. The Hon’ble Apex Court in the case of P.C.Varghese Vs. Devaki

Amma Balambika Devi3, held that “Section 22 enacts a rule of

pleading that in order to avoid multiplicity of proceedings, the plaintiff

may claim a decree for possession and/ or partition in a suit for specific

3

 AIR 2006 SC 145

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performance.” Ordinarily a proceeding for grant of a final decree for

partition should be initiated after the sale deed in terms of the decree

for specific performance of contract is executed and registered and not

vice versa.

12. In the light of above law laid down by the Hon’ble Supreme

Court, the amendment sought by the plaintiff in the instant case

seeking relief of partition also, is proper in the circumstances of the

case discussed above.

13. In that view of the matter, there are no grounds to interfere with

the finding of the trial Court, and the Civil Revision Petition is liable to

be dismissed. Accordingly, this point is answered.

14. In the result, the Civil Revision Petition is dismissed. There shall

be no order as to costs.

 As a sequel, miscellaneous applications pending, if any, shall

stand closed.

_____________________________

B.V.L.N.CHAKRAVARTHI, J.

25.04.2023

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HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

C.R.P.No.424 OF 2016

Note: Mark L.R. Copy

psk

25th April, 2023

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