THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY C.R.P.Nos.4729, 4730 and 4741 of 2009 Dated:10th December, 2009 Between: 1. Mundra Janardhan Rao & Ors. …Petitioners (in all CRPs) and 1. Mundra Babu Rao & Anr. …Respondents (in all CRPs) *** THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY C.R.P.Nos.4729, 4730 and 4741 of 2009 COMMON ORDER: These three revisions are directed against the orders passed on interlocutory applications in O.S.No.11 of 2007 on the file of II Additional District Judge, Nalgonda at Suryapet. More precisely, C.R.P.No.4729 of 2009 is directed against the order dated 09.09.2009 passed in I.A.No.1368 of 2009; C.R.P.No.4730 of 2009 is directed against the order dated 02.09.2009 passed in I.A.No.1233 of 2009 and C.R.P.No.4741 of 2009 is directed against the order dated 09.09.2009 passed in O.S.No.11 of 2007. 2. Since the issue involved in all the revisions is one and the same, they are being heard together and disposed of by this common Order. 3. The petitioners are the defendants 1 to 3 and whereas the 1st respondent is the plaintiff in O.S.No.11 of 2007. The 2nd respondent is the 4th defendant in O.S.No.11 of 2007. The plaintiff filed the suit for partition and separate possession of his share in the suit schedule properties. He pleaded that the suit schedule properties are the joint family properties. The defendants filed written statement resisting the claim of the plaintiff. They took the plea that there was a partition of the joint family properties among the family members prior to 07.10.1989 and the same has been reduced into writing. The parties went on trial. The plaintiff filed his chief-examination affidavit on 20.08.2009 as PW.1. The defendants cross-examined PW.1 on 31.08.2009. The defendants suggested to PW.1 in the cross-examination that he executed sale deeds in respect of Sy.Nos.388, 176, 203 and 331 covering an extent of Acs.16.00. PW.1 admitted of execution of the sale deeds in respect of the said survey numbers. However, he pleaded that he executed the sale deeds at the instance of his father. On 20.08.2009 the defendants 1 to 3 filed I.A.No.1233 of 2009 under Order 6, Rule 17 r/w.Sec.151 CPC seeking direction to the plaintiff to include the petition schedule properties in the suit schedule properties. On 31.08.2009 the defendants 1 to 3 filed I.A.No.1366 of 2009 under Order 1, Rule 10 r/w. Sec.151 CPC seeking to implead the proposed parties in the array of defendants in the suit. When the defendants intend to mark the document dated 07.10.1989, the trial Court refused to mark the same on the ground that it requires stamp duty and penalty. The plaintiff opposed the two I.As being I.A.No.1233 of 2009 and 1366 of 2009. The learned Additional District Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss both the I.As, by orders dated 02.09.2009 and 09.09.2009. Hence, these three revisions. 4. Heard learned counsel appearing for the petitioners/defendants 1 to 3 and learned counsel appearing for the 1st respondent/plaintiff. 5. Learned counsel appearing for the petitioners/defendants 1 to 3 submits that the petitioners/defendants 1 to 3 filed the applications seeking amendment by way of inclusion of certain properties in the suit schedule properties as on the date of cross-examination of PW.1 and therefore, it cannot be said that there are laches on their part in moving the application. A further submission has been made that the document dated 07.10.1989 is only a document evidencing the earlier partition and no partition has been taken place under the said document and therefore, the same can be admitted in evidence for collateral purpose. He would further submit that the 1st respondent/plaintiff disposed of the properties that fell to his share in the partition effected prior to 07.10.1989 and since the 1st respondent/plaintiff pleads of there being no partition at all, the purchasers of the property that fell to the share of the 1st respondent/plaintiff are to be made as necessary parties to the proceedings to avoid multiplicity of proceedings. 6. Learned counsel appearing for the 1st respondent/plaintiff submits that the petitioners/defendants 1 to 3 have not explained properly for not filing the application prior to commencement of the trial and therefore, the orders impugned in the revisions are not liable to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. He would also contend that it is the prerogative of the plaintiff to select the parties against whom he has to seek reliefs and it is not for the defendants to suggest as to which of the parties are to be impleaded as defendants. 7. The plea of the petitioners/defendants in the written statement is that the division has been effected in the joint family and properties have been divided and the said partition of the properties has been evidenced by the document dated 07.10.1989. The relevant portion of the written statement needs to be noted and it is thus: “ It is submitted that the plaintiff and defendants are the children of late Mundra Venkata Rathnaiah, R/o.Nallabandagudem village, Kodad Mandal, Nalgonda District. As per the wishes of their father the entire joint family properties have been partitioned long back and the properties have been shown in the declarations submitted before the Land Reforms Tribunal, towards their respective shares also. Subsequently, to avoid future complications if any the Memorandum of partition (Kutumba Samakhya Agreement) have been reduced into writing on 7-10-1989 and thereby the joint family have been disrupted among the parties to the suit and their father late Mundra Venkata Rathnaiah. Since the date of partition the members of the said family have been enjoying their respective shares as of their rights and having title to the properties allotted to their shares. Their names have been mutated in the concerned records and as well as in the Panchayat in respect of house properties. Likewise, the plaintiff also got mutated his name in the concerned Revenue Records in respect of the properties allotted to his share during the partition and got mutated his name in the Gram Panchayat Office in respect of the house property allotted to his share. There is no co-parcenery property existing in between the parties to the suit in respect of the suit schedule properties and they are not the co-parceners as averred in the plaint as on the date of filing the above suit. Since they are not the co-parceners and there is no joint family possessing co-parcenery property, the question of making the alleged division of partition of the suit schedule property does not arise. The Memorandum of partition (Kutumba Samakhya Agreement) dated 7-10-1989 is filed herewith.” The plea of the defendants is very specific as referred above that the joint family properties were partitioned prior to 07.10.1989. The plaintiff while being examined as PW.1 admits of certain properties being sold by him. The admissions made by PW.1 in the cross-examination are as follows: “At the instance of my father I executed sale deeds in respect of Sy.Nos.388, 176, 203 and 331 covering an extent of Acs.16-00. I cannot say the names of purchasers. I cannot say how much sale consideration was realized. My father has not attested the sale deeds executed by me. I admit that the properties i.e., Acs.6-00 covered by Sy.Nos.388, 176, 203 and 331 are the joint family properties (admission). I have not shown the purchasers as parties in this suit.” The admissions made in the cross-examination of PW.1 indicate that he sold the properties to an extent of Acs.16.00. It is the consistent plea of the petitioners/defendants 1 to 3 that the said land fell to the share of the plaintiff in the partition that was effected prior to 07.10.1989. In case the earlier partition is disbelieved, the properties sold by the 1st respondent/plaintiff are also to be treated as joint family properties. In that view of the matter, the applications filed by the petitioners/defendants 1 to 3 for impleadment of purchasers as well as addition of Acs.16.00 comprising Survey Nos.388, 176, 203 and 331 are liable to be allowed. One point that is required to be answered at this juncture is whether the petitioners/defendants 1 to 3 have offered sufficient reasons for not moving these applications prior to commencement of the evidence on their behalf. The petitioners/defendants 1 to 3 have specifically pleaded in the written statement regarding the earlier partition. It is only on eliciting specific information from the evidence of PW.1 with regard to sale of the land admeasuring Acs.16.00, applications came to be filed, one is on 20.08.2009, and another is on the date of cross-examination i.e., on 31.08.2009. Therefore, the petitioners/defendants 1 to 3 have given sufficient reasons for not filing the applications earlier to commencement of trial. 8. Accordingly, CRP Nos.4729 and 4730 are allowed and consequently, I.A.Nos.1368 of 2009 and 1233 of 2009 in O.S.No.11 of 2007 on the file of II Additional District Judge, Nalgonda at Suryapet, stand allowed to the extent of impleadment of purchasers and inclusion of Acs.16.00 of land in the plaint schedule. No costs. 9. With regard to receiving the document dated 07.10.1989 as evidence on behalf of the petitioners/defendants 1 to 3, the petitioners/defendants 1 to 3 have to necessarily pay the stamp duty and penalty for being admitted the same in evidence. Subject to payment of stamp duty and penalty, the document dated 07.10.1989 can be received in evidence for collateral purpose. 10. Accordingly, C.R.P.No.4741 of is disposed of. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:10th December, 2009. Note: Issue C.C. within a week. B/O cs THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY C.R.P.Nos.4729, 4730 and 4741 of 2009 Dated:10th December, 2009