IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 WP(C).No. 2292 of 2009(W) ------------------------------------ OS.180/2006 of SUB COURT, KATTAPPANA .................... PETITIONER(S): ----------------------- 1. M.THOMAS, AGED 55, S/O.LATE M.T.THOMAS, ENGINEER, RESIDING AT CC:XIV/1473 D, JOLLY BUNGALOW, KARUVELIPPADY (W), KOCHI 682 005. 2. MRS.POORNIMA MOHAN KUMAR, AGED 44, W/O.S.MOHAN KUMAR, RESIDING AT CC: 49/1870 A, DEVANKULANGARA, EDAPPALLY, KOCHI-682 024. 3. MRS.ANNIE CHACKO @ SHEBA JOSE, AGED 45, RESIDING AT KOIKKARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.P.K.RAVINDRAN PUZHANKARA RESPONDENT(S): ------------------------ 1. MRS.JESSY JOHN THOMAS @ ELIZABETH THOMAS, AGED ABOUT 45, W/O.LATE JOHN THOMAS, RESIDING AT PUTHUPARAMBIL ESTATE, BISON VALLEY VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 2. MR.NOHAN JOHN THOMAS, AGED ABOUT 21, S/O.LATE JOHN THOMAS, RESIDING AT PUTHUPARAMBIL ESTATE, BISON VALLEY VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 3. MR.JEEVAN JOHN THOMAS, AGED ABOUT 19, S/O.LATE JOHN THOMAS, RESIDING AT PUTHUPARAMBIL ESTATE, BISON VALLEY VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 4. MRS.LEENA JOHN MATHAI, AGED ABOUT 49, C/O.MRS.NIRMALA PUNNOS, RESIDING AT OTTATHAICKAL HOUSE, PALLAM P.O., KOTTAYAM DISTRICT. R1 TO R3 BY SRI.A.V.THOMAS SRI.JOJO GEORGE SMT.NIDHI SAM JOHN R4 BY SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 2292 of 2009 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the plaint in O.S.180 of 2006 before the Sub Court, Kattappana filed by Respondents 1 to 3 against Respondent No.4. Ext.P2 :- Copy of the written statement filed by Respondent No.4 as Defendant in O.S.180 of 2006 before the Sub Court, Kattappana. Ext.P3 :- Copy of the Agreement dt.14.2.2007 entered into between the Petitioners and the Respondents 1 to 3. Ext.P4 :- Copy of Impleading Petition IA 885 of 2008 filed by the Petitioners in O.S.180 of 2006 before the Sub Court, Kattappana. Ext.P5 :- Copy of the counter affidavit dt.10.11.2008 filed by 1st Respondent in the matter of I.A.885 of 2008. Ext.P6 :- Copy of the objection 3.12.2008 filed by the counsel for the 4th Respondent in the matter of I.A.885 of 2008. Ext.P7 :- Copy of the Order dt.12.1.2009 on I.A.885 of 2008 of the Sub Court, Kattappana. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge N.K.BALAKRISHNAN, J. --------------------------------- W.P.(C) No.2292 of 2009 ----------------------------------- Dated this the 18th day of February, 2011 J U D G M E N T The three petitioners herein are the petitioners in I.A.885/2008 in O.S. 180/06 on the file of the Sub Court, Kattappana. Respondents 1 to 3 are the plaintiffs in that suit. The suit was filed by the plaintiffs seeking a declaration that they have perfected title by adverse possession and limitation. The 4th respondent is the sole defendant in that suit. The suit was laid in respect of 3.60 acres of land comprised in Sy.No.274/177 and 274/178 of Bison Valley Village formerly Rajakkat Village. It was alleged that the petitioners herein had entered into an agreement with the plaintiffs as per which the plaint schedule property was agreed to be sold for a total consideration of Rs.12 lakhs and that the entire amount was paid to the plaintiffs. It was stated that even prior to the agreement dated 14.2.2007, the petitioners herein W.P.(C) No.2292 of 2009 -: 2 :- were put in possession of the plaint schedule properties by the plaintiffs in that suit and such transfer of possession by them to the petitioners was in part performance of the contract as envisaged under S.53A of the T.P.Act. It was contended that the plaintiffs were not on cordial terms and so they apprehend that suit O.S. 180/06 will not be duly prosecuted against the defendant. Therefore, the petitioners having acquired right of possession of the suit property by the agreement referred to above, have to be impleaded as supplemental plaintiffs or in the alternative as supplemental defendants in that suit. Hence petition for impleadment was filed. 2. This application was opposed by the plaintiffs as well as by the defendant in that suit. 3. The court below, as per Ext.P7 order dismissed the petition. 4. The learned counsel for the petitioners would submit that the findings entered by the learned Sub Judge in Ext.P7 order is opposed to law and that the Court W.P.(C) No.2292 of 2009 -: 3 :- should have found that the petitioners have direct substantial interest in the subject matter of the suit by virtue of the agreement, copy of which is marked as Ext.P3. Petitioners contend that the court below should have found that the petitioners are necessary parties to the suit since the plaintiffs (respondents 1 to 3) have already become divested of their possession in view of the transfer in favour of the petitioners under Ext. P3 agreement. As such the petitioners contend that they have to be watchful in the conduct of the suit by the plaintiffs and that any inaction or negligence on the part of the plaintiffs would be sufficient to throw over board the case of the plaintiff and so ultimately petitioners will be the sufferers. 5. The learned counsel for the petitioners and the respondents have been heard. 6. The point for consideration is whether Ext.P7 order is liable to be quashed on any of the grounds urged by the petitioners. 7. The learned counsel for the petitioners would W.P.(C) No.2292 of 2009 -: 4 :- submit that as the plaintiff had already been divested of their right and possession over the property by virtue of Ext.P3 agreement it is legitimate for the petitioners to have a reasonable apprehension that the suit laid by the plaintiffs would not be duly prosecuted and in which event the petitioners would suffer. It is also pointed out that the petitioners had already filed a suit as O.S.1/07 against the plaintiffs for specific performance of the agreement. The contention that the petitioners would be entitled to the protection under S.53A of the T.P. Act cannot be sustained in view of the fact that admittedly agreement dated 14.2.07 is an unregistered agreement. Section 17(1A) of the Registration Act was inserted by the Registration and Other Related Laws (Amendment) Act, 2001. Section 17(1A) reads : “[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882), shall be registered if they have been executed on or after the commencement of the Registration and other related laws (Amendment) Act, W.P.(C) No.2292 of 2009 -: 5 :- 2001, and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53A.]” Similar amendment to Section 53A of the T.P.Act was also introduced as per Central Act 48 of 2001 with effect from 24.9.2001. As such, the petitioners cannot claim protection under Section 53A of the T.P.Act. Learned counsel for the petitioners would submit that the question is not whether the petitioners would be entitled to claim protection under S.53A of the T.P.Act, but whether the interest of the petitioners who have got right and possession over the plaint schedule property by virtue of Ext.P3 agreement would be affected if the suit is not duly prosecuted. In this connection the decision in Kunhikannan Nambiar v. Sumithra Amma (1999(1) K.L.J. 243) has been relied upon by the learned counsel for the petitioners. That was a case where the petitioner who sought impleadment contended that the plaintiff therein had executed a power of attorney in his favour and the petitioner was in fact conducting the case on behalf of the plaintiff and W.P.(C) No.2292 of 2009 -: 6 :- subsequently the plaintiff executed an agreement for sale with regard to the plaint schedule property and that part of the consideration amount was paid by the petitioner to the plaintiff. But thereafter plaintiff and petitioner therein fell apart and plaintiff joined hands with the defendants and tried to compromise the suit to the disadvantage of the ultimate interest of the petitioner. The petitioner thus filed application for getting himself impleaded as supplemental second plaintiff in that suit. The plaintiff did not raise any objection therein. The 3rd defendant filed objection. The trial court dismissed the application for impleadment. In that context, it was held by this Court that by the agreement of sale the petitioner has obtained right for the purpose of getting himself impleaded and as such he was allowed to be impleaded as supplemental plaintiff. The fact that the plaintiff therein lost interest in prosecuting the suit was noticed as true since later the suit was dismissed for default. According to the learned counsel for the defendant (R4 herein) the facts dealt with in the W.P.(C) No.2292 of 2009 -: 7 :- decision cited supra have to be distinguished. It is also pointed out that that was not a suit where the original plaintiff was not having title to the property. 8. The decision in K.S.Abraham v. Chandy Rosamma (AIR 1989 Kerala 167) has also been relied upon in this connection. It was held therein : “In view of R.10(2) of O.1, Civil P.C., a person may be added as a party to the suit provided it is shown that he has a direct interest in the suit property and hence his presence before the Court is necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit”. Under Order 1 Rule 10(2), the Court, has the power to add a party in a suit if from the pleadings and other circumstances it is found that, that party is interested in the subject matter of the litigation and without the junction of that party the issue cannot finally and effectually be decided. It is contended by the defendant that since the suit originally laid was for declaration that the plaintiffs have perfected their title by adverse possession and W.P.(C) No.2292 of 2009 -: 8 :- limitation, the defendant cannot be asked to contest a suit for specific performance as well, for, in order to hold that the petitioners are entitled to prosecute the suit, it must be proved that there was a valid agreement executed by the plaintiffs in favour of the petitioners. It is also contended that there is something unusual and unnatural in the whole transaction since they wanted the court to believe that a party has agreed to purchase a property by spending huge amount when the vendor has no absolute title over the property, but only claims possession and contends that he has perfected title by adverse possession and limitation. Thus, according to the defendant, when the position of the plaintiffs themselves is very precarious; in that, their success in the suit would depend upon the proof of adverse possession for the required statutory period with the required hostile animus. The defendant contends that there is every reason to doubt the execution of the agreement itself. The position obtained in this case, in the factual background mentioned above is different from the W.P.(C) No.2292 of 2009 -: 9 :- facts dealt with in Kunhikannan Nambiar’s case cited supra. It is also pointed out that the agreement as per which the petitioners were stated to have obtained possessory right over the property was not registered and hence that is also a circumstance which would loom large against the case set up by the petitioners. I find it not necessary to make any observation regarding the same lest it should prejudice the parties to the suit. 9. In the course of argument, learned counsel for the plaintiff submitted that the execution of the agreement itself is disputed and in order to enable the petitioners to come on record as supplemental plaintiffs, they have to first prove the execution of the agreement and must substantiate that they are entitled to get a decree for specific performance of the contract. The defendant in the suit cannot be compelled to join issue with the plaintiffs and petitioners with regard to the same and in that view of the matter, it would cause undue hardship to the defendant, which he is otherwise not bound to suffer. W.P.(C) No.2292 of 2009 -: 10 :- 10. It was submitted that the petitioners had already filed a suit for specific performance of the agreement in question as O.S.1/07 before the very same Sub Court and it is still pending. If so, there would be no difficulty for the petitioners to get that suit, O.S.1/07, disposed of at the earliest. The question to be considered in making a person a party to a suit following the procedure prescribed under Order 1Rule 10(2) is whether he has a direct interest as distinguished from a commercial interest in the matter of the litigation. Vide the decision in Rasiabegum v. Sahebzadi Anvarbegum (AIR 1958 S.C.886). If he has a direct and not a commercial interest he shall be made a party to the litigation or else Court cannot finally and effectually dispose of the suit in respect of the property which is the subject matter of the suit. In the case on hand, it cannot be said that without impleading the petitioners as supplemental plaintiffs proper adjudication of the suit cannot be had. 11. The decision in K.S.Abraham v. Chandy W.P.(C) No.2292 of 2009 -: 11 :- Rosamma [A.I.R. 1989 Kerala 167] was also referred in this connection. That was a case filed by the plaintiff therein against the first defendant for specific performance of the contract. Since the first defendant therein had conceded that the property was owned by him and further stated that he had executed ‘a ground rent deed’ in favour of the second defendant, his wife was made a formal party to the suit for the purpose of getting an effective decree for specific performance. The second defendant filed application to have her name removed from the party array. That was allowed by the trial court. The revision filed against that order was allowed setting aside the order passed by the trial court removing the 2nd respondent from the party array. That was a case where the plaintiff sought a decree against the defendant. Since the interest in the property was conveyed to another person that person was also a necessary party to the suit. 12. The decision in Amit Kumar Shaw v. Farida Khtoon (AIR 2005 S.C. 2209) has been cited by the W.P.(C) No.2292 of 2009 -: 12 :- learned counsel for the defendant, to fortify his submission that the petitioners can be added as proper parties only if their interest in the subject matter of suit is substantial and not just peripheral. The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. It must be a case where without his presence the questions in the suit cannot be completely decided. In the instant case, it cannot be said that the petitioners have got a substantial interest since according to the defendant the agreement based on which he claims right is invalid and cannot be pressed into service against him more so because the plaintiffs who were stated to have executed the agreement had no title to the property whereas the plaintiffs themselves claim right on the premise that they have perfected title by adverse possession and limitation. In Scaria Joseph v. Eliyamma Joseph also it was held; 'necessary parties' mean without W.P.(C) No.2292 of 2009 -: 13 :- whom no decree can be made effectively. Since in this case the petitioners claim right over the property based on an agreement alleged to have been executed by the plaintiffs and since plaintiffs themselves do not admit execution of the agreement it cannot be said that the petitioners are necessary parties to the suit filed by the plaintiffs who claim to have perfected title to the suit property by adverse possession and limitation. 13. It was held in Kasturi v. Iyyamperumal [2005 (3) KLT SN 86 (C.No.102) SC] : “Necessary parties are those persons in whose absence no decree can be passed by the Court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.” That was also a case where suit was filed for specific performance of a contract for sale. It was held that a person who had purchased the contracted property from W.P.(C) No.2292 of 2009 -: 14 :- the vendor was held to be a 'necessary party' as he would be affected if he had purchased with notice of the contract. As stated earlier the plaintiff does not admit execution of the agreement or the entitlement of the petitioners herein to claim right over the property by virtue of the said agreement. The learned counsel for the defendant contends that there is no commonality or jointness of interest among the plaintiffs and the petitioners who seek themselves to be impleaded as supplemental plaintiff and since there is a dispute interse between the plaintiffs and the petitioners herein, the petitioners cannot be allowed to be impleaded as supplemental plaintiffs. 14. In Ext.P4, the impleadment petition, their prayer was to implead them as additional plaintiffs 4 to 6 or in the alternative as additional defendants 2 to 4. Since they claim right or interest over the property by virtue of the agreement, whether it is admitted or denied it can be said that they are necessary parties or proper parties to be impleaded as additional defendants in the suit. Their W.P.(C) No.2292 of 2009 -: 15 :- impleadment as supplemental defendants will not in any way prejudice right of the petitioners or defendants. Since a suit had already been filed by the petitioners as O.S.No.1/2007 for specific performance against the plaintiffs, herein, if there is no legal impleadment it would be proper to have a joint trial of both suits. In view of what is stated above, Ext.P7 order passed by the court below is quashed. Petitioners are allowed to be impleaded as supplemental defendants in the suit, O.S.No.180/2006, on the file of Sub Court, Kattappana. It is needless to say that parties are at liberty to file additional pleadings as and when the petitioners are impleaded as supplemental defendants. Parties are directed to suffer their respective costs. It is also noticed that as per the Munnar Special Tribunal Act, 2010, Munnar Tribunal has already been constituted. As defined under Section 2(g) of the Act, 'Munnar area' takes in all lands comprised in the Bison Valley Village also. Section 2(d) says 'dispute' means all W.P.(C) No.2292 of 2009 -: 16 :- disputes with respect to ownership, possession, use or any rights whatsoever over or concerning the land in Munnar area as well as all constructions and other uses of the land in such area which are pending before any authority or courts. Section 4 says that notwithstanding anything contained in any other law for the time being in force or order, decree or judgment, all disputes in respect of Munnar area pending before any Court or any other authority except the High Court and the Supreme Court shall stand transferred to the Tribunal immediately on the constitution of the Tribunal under this Act. Admittedly the property involved in this suit is situated in Bison Valley. Therefore, the learned Sub Judge will see whether this is not a case to be transferred to Munnar Tribunal constituted under Act 13 of 2010. N.K.BALAKRISHNAN, JUDGE. rka