IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE FIFTEENTH (15TH) DAY OF APRIL, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5853 of 2010 Between: The Priyadarshini Coop. Housing Society Ltd., rep. by its President … Petitioner And: Syed Zainulla Abedin & 2 others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5853 of 2010 ORDER: This revision is directed against the order dated 06.09.2010 in IA No.1255 of 2008 in OS No.574 of 2007 on the file of the I Additional District Judge, Ranga Reddy district, wherein, the said application filed by the petitioner herein under Order I Rule 10 CPC to get impleaded as 2nd defendant in the suit, was dismissed. 2. With the consent of the learned counsel for both parties, the main revision petition is taken up for hearing. Heard both sides. Perused the record. 3. The respondents 1 and 2 herein-plaintiffs filed suit against 3rd respondent herein-defendant for specific performance of agreement of sale dated 20.08.2005 alleged to have been entered by the respondents 1 and 2 herein with 3rd respondent herein, in respect of Ac.5.13 guntas in Sy.Nos.184, 186 and 195 of Begumpet village, Balanagar Revenue Mandal, Ranga Reddy district. The case of the plaintiffs is that the suit property originally belongrf to one Vema Rajaiah, who had two wives and a son Mogalaiah through first wife and one daughter Jayamma-defendant through 2nd wife. Mogalaiah had two sons, Veeresalingam and Sankar Rao. After the death of his parents, Veeresalingam and Sankar Rao died intestate and unmarried in 1963 and 1965 respectively. After the death of her mother, defendant-Jayamma became the absolute owner of the entire suit property. The defendant offered to give the suit schedule property for development and first plaintiff entered into a development agreement dated 11.08.2002 and paid a sum of Rs.1,00,000/- under receipt. As per the said agreement, the defendant and first plaintiff are each entitled for 50% of the developed area. It was further agreed that the first plaintiff would pay further sum of Rs.4,00,000/- within six weeks from the date of agreement and Rs.5,00,000/- within 12 months from the date of the agreement to the defendant. The first plaintiff could not however proceed with the development activity as there was rival claim by one Vema Hanmantha Rao and 3 others claiming to be protected tenants in succession of one Vema Venkaiah, who also claimed to have obtained succession certificate from the Mandal Revenue Officer, Bala Nagar on 19.03.1990 and also possession certificate on 17.10.2002 as against defendant Jayamma, petitioner herein and one Satyamma. The petitioner herein preferred an appeal before the Joint Collector claiming that Gadda Shankarappa and others purchased the suit property under registered sale deed dated 19.02.1969 from Laxmamma, mother of the defendant and the said Shankarappa and others entered into an agreement of sale with the petitioner’s society on 09.03.1981. The Joint Collector dismissed the appeal on 26.02.2005 holding that the sale deed in favour of Gadda Shankarappa and others, was void and therefore, the petitioner society could not have acquired any rights by virtue of the alleged agreement dated 09.03.1981. As the first plaintiff himself could not meet the situation in view of the previous litigation, at his instance one Padam Raj Parakh also joined him and the defendant executed another development agreement dated 21.11.2002, where under further sum of Rs.1,00,000/- was paid under receipt and that the first plaintiff and Padam Raj Parakh would pay Rs.3,00,000/- within three months and Rs.5,00,000/- within 12 months from the date of the said agreement. Subsequently, V. Hanmanth Rao and 3 others filed CRP No.1511 of 2005 and the petitioner society filed CRP No.2072 of 2005 against the orders of the Joint Collector and they lost their rights. Thereafter, the defendant offered to alienate the suit property and the plaintiffs 1 and 2 agreed to purchase the same for a total consideration of Rs.60,00,000/- and the plaintiffs paid Rs.10,00,000/- to the defendant under an agreement of sale dated 28.02.2005 and the balance of sale consideration was agreed to be paid within two months from the date of the said agreement. Aggrieved by the orders passed in CRP No.1511 of 2005 dated 28.02.2006, V Hanmanth Rao and others preferred SLP before the Supreme Court and the same was dismissed at the time of admission on 18.08.2006 and thus, Hanmanth Rao and others lost their claim in respect of the suit property. When the plaintiffs offered balance sale consideration and demanded the defendant to execute registered sale deed, the defendant on one pretext or other is postponing the same. The plaintiff got issued legal notice dated 20.03.2007 and as they could not receive the acknowledgment, copy of the same notice was again sent on 18.04.2007 to the defendant. The defendant did not give any reply nor executed the sale deed. Hence, the plaintiffs filed suit for specific performance of the agreement of sale and for delivery of vacant possession of the suit property. 4. The defendant filed written statement, admitting the development agreement dated 11.02.2002 in favour of the first plaintiff and contending that the first plaintiff himself did not choose to pay the agreed amount therein and also admitting the execution of the 2nd development agreement dated 22.11.2002 in favour of first plaintiff and another and pleaded that the first plaintiff approached her with a request to sell the property in favour of the plaintiffs 1 and 2. The defendant further agreed that she entered into an agreement of sale dated 28.02.2005 in favour of the plaintiff. She further contended that in the said agreement of sale, the plaintiffs have agreed to pay the balance sale consideration of Rs.50,00,000/- within two months from the date of agreement and it is specifically agreed that the time is the essence of the contract and in spite of repeated requests, the plaintiffs did not choose to pay the balance amount and the plaintiffs did not perform their part of it. The defendant further contended that in order to cover up their inability to proceed with the transaction to pay the balance sale consideration and the plaintiffs being never ready and willing to perform their part of contract, the present suit is filed. 5. While the matter was thus pending, the petitioner society filed IA No.1255 of 2008 under Order I Rule 10 CPC seeking to get impleaded as 2nd defendant. According to the petitioner, the suit agreement is a collusive document, brought in to existence by the plaintiffs and the defendant and the suit land was originally owned by one Vema Rajaiah and on his death, the same devolved on his legal heir Laxmamma and others, who in turn sold the property under registered sale deed in favour of K. Basappa and five others in the year 1969 and they in turn entered into an agreement with the petitioner society and delivered possession on 09.03.1981 and ever since, the petitioner society is in possession of the said land. The petitioner further pleaded that as K. Basappa and others failed to perform their part of the contract. In spite of plaintiffs being ready with balance of sale consideration, the sale deed was not executed and therefore, the petitioner society filed OS No.1090 of 1994 before the V Senior Civil Judge, City Civil Court, Hyderabad for specific performance of the said agreement of sale and the said suit was decreed on 16.09.2002. The petitioner further contends that due to raise in the price, V Hanmanthrao and others have falsely set up a claim in favour of their father Vema Venkaiah, as a protected tenant and filed a petition before the Mandal Revenue Officer, Bala Nagar, under Section 32(1) of the A.P. (T.A.) Tenancy and Agricultural Lands Act, 1950 (for short ‘the Act’) for possession and the same was allowed on 17.10.2002 by the Mandal Revenue Officer. Questioning the same, the petitioner society filed appeal before the Joint Collector, Ranga Reddy district and the same was allowed, setting aside the order of the Mandal Revenue Officer, but however, an observation was made that the sale deed in favour of K. Basappa and others was obtained without obtaining sanction under Section 47 of the Act. The petitioner society questioning the said observation of the Joint Collector, filed CRP No.2072 of 2005 and this Court by order dated 18.02.2006 allowed the said revision and set aside the observation of the Joint Collector and held that the sale deed and the agreement of sale are valid documents. Hanmantha Rao and others preferred special leave petition before the Supreme Court questioning the order passed in CRP No.1511 of 2005 and CRP No.2072 of 2005 and the same was dismissed on 18.08.2006. Thus, neither V Hanmantha Rao, nor defendant Jayamma had any right over the suit schedule property. The petitioner further contended that taking advantage of the proceedings under Section 32 of the Act by Vema Hanmantha Rao and others, the defendant setting up the claim by colluding with the plaintiffs, brought into existence the agreement of sale, and filed the present suit collusively to defeat the rights of the petitioner-society. 6. The plaintiffs filed a counter, reiterating their contentions raised in the plaint and further contended that the petitioner society has no locus standi to get impleaded in the present suit. In a suit for specific performance, third party cannot be permitted to be impleaded and the petitioner society being a third party to the agreement, he is neither proper nor necessary party to the suit. The plaintiffs further contended in their counter that the petitioner- society itself had no title and therefore, the petitioner society does not acquire any right and the suit OS No.1090 of 1994 is filed by the petitioner collusively in the Court of V Senior Civil Judge, City Civil Court, Hyderabad, having no jurisdiction and the decree passed therein, is not binding on the plaintiffs. The defendant also filed counter in IA No.1255 of 2008 reiterating her contentions raised in the written statement and further contending that she was not a party to the suit OS No.1090 of 1994 and was not aware of the decree passed in the said suit and the petitioner’s vendor never had any title to the property and therefore, the petitioner society did not acquire any rights in the suit schedule and she alone was exclusive and absolute owner of the suit property and at any rate, the petitioner is not a proper and necessary party to the present suit. 7. Learned I Additional District Judge, by impugned order dismissed the IA No.1255 of 2008 on the ground that in a suit for specific performance of the agreement of sale, the parties to the agreement alone are proper and necessary parties and the petitioner society who is claiming independent rights over the suit property through their vendor Basappa, is not necessary and proper party to the present suit. Aggrieved by the same, the petitioner society filed present revision petition. 8. The suit is filed for specific performance of agreement of sale dated 28.02.2005 said to have been executed by the defendant-3rd respondent herein in favour of the plaintiffs- respondents 1 and 2 herein in respect of the suit property. According to the plaintiffs, the agreed sale consideration was Rs.60,00,000/- and they have paid Rs.10,00,000/- as advance and though they offered balance of sale price of Rs.50,00,000/-, the defendant was postponing to receive the same and execute the registered sale deed and in spite of legal notice, the defendant has not put forward to execute the sale deed and hence, the suit for specific performance. The defendant, while admitting the execution of the suit agreement, contended that the balance sale price of Rs.50,00,000/- was agreed to be paid within two months and it is specifically agreed that the time was essence of the contract. The plaintiffs were never ready and willing to perform their part of contract within the stipulated time and therefore, they are not entitled for specific performance, as they committed breach of contract. The dispute as to which of the parties among the plaintiffs and defendant committed breach of contract and the question as to whether or not the plaintiffs are entitled for specific performance of the suit agreement of sale, are all matters to be decided on evidence, after regular trial in the suit. 9. The dispute in the suit is therefore in respect of the suit agreement of sale dated 28.02.2005 executed by the defendant in favour of the plaintiffs. The petitioner society is, admittedly, not a party to the suit agreement or to any of the transaction referred to in the plaint and entered into between the plaintiffs and defendant. The petitioner society is claiming an independent right in the suit property by virtue of agreement of sale said to have been executed by one K Basappa and others, who according to the petitioner, purchased the suit property from the original owners Laxmamma and others, who are the legal heirs of Vema Rajaiah. According to the plaintiffs and also defendant, after the death of her mother Laxmamma, who is 2nd wife of Rajaiah, her daughter- the defendant became the absolute owner of the entire suit property. Thus, the claim of the petitioner society over the suit property is distinct and independent from the one put forward by the plaintiffs. Admittedly, no registered sale deed is executed in favour of petitioner society in respect of the suit property. The petitioner claims to have filed a suit OS No.1090 of 1994 on the file of the V Senior Civil Judge, City Civil Court, Hyderabad, for specific performance of the agreement of sale against their vendor K Basappa and others and the said suit was decreed on 16.09.2002. Neither the plaintiffs nor the defendant was parties to the suit. The plaintiffs and defendant in the present suit would contend that the judgment and decree in OS No.1090 of 1994 was obtained collusively by playing fraud on the court and at any rate, they are not binding on them. 10. It is to be noted that the alleged agreement of sale between the petitioner society and their vendor K Basappa and others was said to have been executed on 09.03.1981 and the suit OS No.1090 of 1994 was filed in the year 1994 and it was decreed on 16.09.2002. Be that as it may, it is not disputed that against the said judgment and decree, an appeal was preferred in CCCA No.98 of 2005 and operation of the decree and judgment was suspended by this Court and the said appeal is pending. 11. Learned counsel for the petitioner seeks to rely upon the decision in ‘Potti Rajeshwari vs. Quader Mohiuddin[1]’ wherein, it was held as follows: “When the proposed party has got fair semblance of right, title and interest in the property, he can be brought on record in view of the fact that he has to protect his interest and collect rents from the tenant in respect of extent of site purchased by him through a registered sale deed. If he is not come on record, the rents have to be paid to the plaintiffs thereby causing miscarriage of justice. Therefore, to avoid multiplicity of proceedings, he can be brought on record so that his interest can be protected. The trial Court rightly impleaded him as 2nd defendant in the suit so that he can raise his interest with regard to the payment of rents is concerned (to the extent of 885 sy.yards said to have been executed by the plaintiffs). In the above case, the proposed party, who was impleaded as 2nd defendant, purchased an extent of 885 square yards out of the suit property under registered sale deed and delivered possession with easementary right including the right to collect rents and evict the tenants. He was therefore found to be a proper and necessary party to the suit to enable him to collect the rents. 12. The decision cited is not applicable to the facts of the present case, wherein, the petitioner-proposed party is admittedly, not having any title deed in his favour in respect of the suit property and even the decree obtained by the petitioner against some others in OS No.1090 of 1994 is suspended in appeal in CCCA No.98 of 2005. 13. Learned counsel for the petitioner relied upon the decision in ‘Sumtibai & others vs. Paras Finance Co.’[2], wherein, it was held as follows: “In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced.” 14. Learned counsel for the respondents 1 and 2-plaintiffs, invited attention to the decision in ‘Kasturi vs Iyyamperumal’[3], wherein the apex Court held as follows: “In a suit for specific performance of contract – Necessary parties thereto – Held, are only the parties to the contract or parties claiming under them, or a person who had purchased the contracted property from the vendor with or without notice of the contract – Person who claims independent title and possession adversely to title of vendor is not a necessary party, since an, effective decree can be passed in his absence and no relief can be claimed against such party”. 15. The trial Court also referred to the above decision in the impugned order. The decision in Kasturi’s case (3rd supra) was followed by this Court in ‘Indu Bai vs. Rajendrakumar Bhandari’[4], wherein, it was held as follows: “Laid board principles relating to impleading of the parties, it was held that the persons, who are parties to the contract, or claiming through them, or a person who had purchased the property with or without notice, are necessary parties. It was also observed that a person, who claims independent title and possession adverse to that of the vendor, is not a necessary party. The petitioners fall into the first category of persons”. 16. The decision in Kasturi’s case (3rd supra) was distinguished in Sumtibai’s case (2nd supra), wherein it was held as follows: “In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12.8.1960 by which the property was purchased shows that the shop in dispute was sold in favour of not only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have no semblance of title and are mere busybodies or interlopers.” It can be seen that in the above decision, sons of Kapoorchand who were also sought to be impleaded as joint purchasers along with Kapoorchand under registered sale deed dated 12.08.1960 and therefore, it was held that they were having semblance of title and they are not mere busybodies or interlopers. The impleaded party Kapoorchand and proposed parties, who are the sons of Kapoorchand, all claimed rights under the same sale deed dated 12.08.1960 by virtue of joint purchase by them. 17. In the present case, petitioner society is not claiming any joint rights along with the plaintiffs, but on the other hand is setting up an independent title altogether from different source and only under an agreement of sale. In the above case it was therefore held that ‘it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. If C can show a fair semblance of title or interest, he can certainly file an application for impleadment’. 18. In the present case, the petitioner has not shown any semblance of title. There is no title deed in favour of the petitioner and even the decree for specific performance said to have been obtained by the petitioner against some others in OS No.1090 of 1994 to which neither the plaintiffs nor the defendant herein are parties, was suspended in CCCA No.98 of 2005. In Sumtibai’s case (cited supra), the apex Court held that ‘the decision in Kasturi’s case can only be understood to mean that a third party cannot be impleaded in a suit for specific performance, if he had no semblance of title in the property in dispute and obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit and that would un-necessarily protract or obstruct the proceedings in the suit’. 19. In the present case, the petitioner, who is a third party to the suit agreement and who is claiming an independent title from a different source, cannot be permitted to get impleaded in the present suit so as to establish his title to the suit property. It is always open to him to avail such remedies as are permissible under law against the respondents by way of independent proceedings, but he cannot seek to come on record in the present suit when he is not a party to the suit agreement of sale and when he is claiming an independent title through a different source. 20. In the circumstances, the impugned order dismissing the application for impleadment of the petitioner on the ground that he is not necessary or proper party to the adjudication of the dispute between the plaintiffs and defendant herein, does not therefore call for any interference by this Court. 21. In the result, the civil revision petition is dismissed. No order as to costs. Interim stay granted earlier shall stand vacated. ___________________ G.V.SEETHAPATHY, J Date: 15.04.2011 bss [1] 2010(5) ALD 274 [2] (2007)10 SCC 82 [3] (2005)6 SCC 733 [4] 2009 (5) ALD 402