suiit for partition - abandonment of the suit by plaintiff - purchaser/ one of the defendant can be transposed as plaintiff No.2

HIGH COURT OF ANDHRA PRADESH

WEDNESDAY ,THE THIRD DAY OF JANUARY

TWO THOUSAND AND TWENTY FOUR

PRSENT

THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO

CIVIL REVISION PETITION NO: 1666 OF 2023

Between:

1. M.ANANDA S/o Late M.Ramappa,

Age. 57 years, R/o. Dasarapalli Village, Baireddipalli Mandal, Chittoor

District.

...PETITIONER(S)

AND:

1. SMT. BHARATHAMMA Smt. Bharathamma, W/o Venkatesu,D.No 4 -133

Age. 46 years, R/o. Kummargunta Village, Vanamaladinne Post,

Punganur Mandal,

Chittoor District.

2. M.Chinnapapamma (Died), W/o Late Venkatesu, Age. 83 years, R/o.

Dasarapalli Village, Baireddipalli Mandal, Chittoor District.

3. M.Chengalraya Reddy (Died), S/o Late Venkatesu, Age. 69 years, R/o.

Dasarapalli Village, Baireddipaili Mandal, Chittoor District.

4. K.Nagarathnamma, W/o Late Venkatesu, Age. 62 years, R/o.

Payasthanahalli Village, Marendahalli Post, Mulbagal Thaluk, Kolar

District, Karnataka State.

5. Smt. S.Santhamma, W/o S.Narayanappa, Age. 60 years, R/o.

T.Bandlapalli Village, Gonumakulapalli Post, V.Kota Mandal, Chittoor

District.

6. M.Gowramma (Died), Age. 83 years, R/o. Dasarapalli Village,

Baireddipalli Mandal, Chittoor District.

7. M.Rukmanamma, W/o Late M.Kodanda Reddy, Age. 49 years, R/o.

Dasarapalli Village, Baireddipalli Mandal, Chittoor District.

8. M.Harinath, S/o Late Kodanda Reddy, Age. 33 years, R/o. Dasarapalli

Baireddipalli Mandal, Chittoor District.

9. M.Venu Babu, S/o Late Kodanda Reddy, Age. 29 years, R/o. Dasarapalli

Village, Baireddipalli Mandal, Chittoor District.

10. Smt. V.Shobha V.Padmavathi, W/o V.Venkataramana,

Age. 29 years, R/o. Madamvaripalli Village.

Kagithi Post, Chowdepalli Mandal, Chittoor District.

...RESPONDENTS

Counsel for the Petitioner(s): G JAGADEESWAR

Counsel for the Respondents:

The Court made the following: ORDER

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THE HON’BLE SRI JUSTICE R.RAGHUNANDAN RAO

CIVIL REVISION PETITION No.1666 OF 2023

ORDER:

Heard Sri V. Gangaiah Naidu, learned Senior Counsel

appearing for Sri G. Jagadeeswar, learned counsel for the

petitioner. As there is no appearance of the respondents,

despite service of notice, this case is being disposed of on

merits.

2. The respondent No.1 herein, had filed

O.S.No.228 of 2014 before the Learned Vacation Judge,

Chittoor (Senior Civil Judge, Chittoor) for division of the

suit schedule property into 28 equal shares and for

allotment of such shares to various persons. The petitioner

herein, who is a purchaser of some of the properties, listed

in schedule B, is arrayed as defendant No.10 in the suit. In

the course of the proceedings in the suit, defendant Nos.1,

2 & 5 are said to have been passed away. However, steps

were not taken to implead their Legal Representatives and

bring them on record by the respondent No.1/plaintiff.

3. The petitioner herein had thereupon filed

I.A.No.39 of 2020 to transpose of him as plaintiff No.2

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CRP No.1666 of 2023

under Order I Rule 10 r/w Section 151 of C.P.C. Both these

applications were dismissed by an order dated 12.04.2023.

Being aggrieved by the said order, the petitioner has

approached this Court by way of C.R.P.Nos.1666 and 1686

of 2023.

4. The case of the petitioner is that the respondent

No.1/plaintiff after initiating the suit is now hand in glove

with the defendants and is seeking ways and means of

ensuring that the suit gets dismissed for default for

non-prosecution and such dismissal would effectively

damage the interests of the petitioner, who is the defendant

No.10 in the suit. It is the case of the petitioner that, as a

purchaser of some of the suit properties, he is also entitled

for a share in the suit schedule property and dismissal of

the suit would result in the denial of the rights of the

petitioner to receive his due share of the family property of

the parties. The Trial Court, while considering I.A.No.39 of

2020 for transposing the petitioner as plaintiff No.2 on the

ground that the plaintiff/respondent No.1 had abandoned

the suit, had held that the plaintiff was attending and

conducting the case, hence, no ground was made out. The

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CRP No.1666 of 2023

Trial Court also took the view that the petitioner, who is

only a purchaser of the property and was not a shareholder

in the property, cannot transpose himself as party in the

suit for partition. The Trial Court had also dismissed

I.A.No.124 of 2021 on the ground that a defendant in the

suit cannot implead parties or bring on record the Legal

Representatives of the deceased parties in the suit.

5. Sri V. Gangaiah Naidu, learned counsel

appearing for the learned counsel for the petitioner would

submit that, the docket orders, which have been placed

before this Court, by way of a memo, would go to show that

the Trial Court had recorded, on 20.07.2023, that the

plaintiff was called absent and the advocate for the plaintiff

had reported no instructions from the plaintiff, due to

which notices were sent to the plaintiff through registered

post despite which the petitioner was still absent and the

plaintiff had failed to appear before the Trial Court since

01.12.2019, when the matter was called up for trial. The

Trial Court, in the same proceedings dated 20.07.2023, had

closed the evidence on behalf of the plaintiff and posted the

matter for evidence of defendants.

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CRP No.1666 of 2023

6. The learned Senior Counsel would contend that

these observations/proceedings of the Trial Court would be

more than sufficient to demonstrate that there is

abandonment of the suit by the respondent No.1/plaintiff.

He would submit that in such circumstances, the dismissal

of the applications is not permissible.

7. It is surprising that the Trial Court, despite the

order of 20.07.2023, which shows clear abandonment of the

suit, by the plaintiff, continued to hold that the plaintiff had

not abandoned the suit. The Trial Court was in error on

this issue and the said finding needs to be rectified. This

Court is of the opinion that the order of the Trial Court,

dated 20.07.2023 is a clear finding of the Court that the

plaintiff has given up the suit. In such a case, the petitioner

is entitled to be transposed as a plaintiff in the suit.

8. The Trial Court had also held that the petitioner,

who is a purchaser of the property is not entitled to take the

place of a plaintiff. It is settled law that a purchaser of

undivided interest in a coparcenary property is entitled to

demand a partition of the property. In such circumstances,

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CRP No.1666 of 2023

it is not clear as to how the Trial Court came to the

conclusion that the petitioner, as a purchaser, is not

entitled to be a plaintiff.

9. The trial was wrong on both counts. The order of

the Trial Court is set aside and this Civil Revision Petition is

accordingly allowed and the petitioner will be permitted to

transpose himself as plaintiff No.2 in the suit. There shall

be no order as to costs.

Miscellaneous petitions, pending if any, shall stand

closed.

___________________________________

 JUSTICE R.RAGHUNANDAN RAO

Date : 03.01.2024

MJA

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CRP No.1666 of 2023

THE HON’BLE SRI JUSTICE R.RAGHUNANDAN RAO

CIVIL REVISION PETITION No.1666 OF 2023

Date : 03.01.2024

MJA

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