IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 OP(C).No. 3728 of 2011(O) ------------------------- (OS.70/2010 of MUNSIFF COURT, PALA) .................... PETITIONER: -------------------- M.S.SUMESH,S/O.SUKUMARAN NAIR,AGED 33 YEARS, MEPPALLIL VEETTIL,KIDANGOOR SOUTH P.O, KIDANGOOR KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENT(S): --------------- 1. RAMACHANDRAN NAIR,S/O.GOPALA PILLAI, AMPADIYIL,KIDNAGOOR SOUTH P.O,KIDANGOOR KARA, KIDANGOOR VILLAGE, PIN 686 583. 2. V.C.SURESH,S/O.BHASKARAN NAIR, ALATHUNKEL VEETTIL, KIDANGOOR SOUTH P.O, KIDANGOOR KARA, KIDANGOOR VILLAGE, PIN 686 583. 3. SUDHEESH KUMAR,S/O.SUKUMARAN NAIR, MEPPALLIL VEETTIL, KIDANGOOR SOUTH P.O, KIDANGOOR KARA, KIDANGOOR, PIN 686 583. ADV. SRI.LIJI.J.VADAKEDOM FOR R1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SU OP(C).No. 3728 of 2011 APPENDIX PETITIONER'S EXHIBITS : EXHIBIT P1. COPY OF THE SURVEY SKETCH OF THE 4.86 ARES OF PROPERTY IN SY.NO.133/9 MORTGAGED BY THE 2ND RESPONDENT IN FAVOUR OF THE KIDGANGOOR RURAL HOUSING CO-OPERATIVE SOCIETY DATED 13.12.1990. EXHIBIT P2. COPY OF THE SALE CERTIFICATE REGISTERED IN FAVOUR OF THE PETITIONER AS DOCUMENT NO.655/1/2011 OF THE SRO KIDANGOOR DATED 20.04.2011. EXHIBIT P3. COPY OF THE BASIC TAX PAID RECEIPT ISSUED BY THE VILLAGE OFFICER, KIDANGOOR DATED 24.6.2011. EXHIBIT P4. COPY OF THE CERTIFICATE OF ENCUMBRANCE IN RESP OF THE 4.8 ARES (12 CENTS) OF LAND COMPRISED IN RESY.BLOCK NO.16, RE- SURVEY NUMBER 324/9 IN KIDANGOOR VILLAGE ISSUED BY THE SUB REGISTRAR, KIDANGOOR DATED 14.05.2008. EXHIBIT P5. COPY OF THE PLAINT IN O.S NO. 70 OF 2010 OF THE MUNSIFFS COURT, PALA DATED 18.03.2010. EXHIBIT P6. COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT 2 AND 3 IN O.S NO. 70/2010 OF THE MUNSIFFS COURT, PALA DATED 19.06.2010. EXHIBIT P7. COPY OF THE I.A NO.1403 OF 2011 FILED BY THE PETITIONER IN O.S NO. 70 OF 2010 OF THE MUNSIFFS COURT, PALA DATED 25.08.2011. EXHIBIT P8. COPY OF THE OBJECTION FILED BY THE IST RESPONDENT/PLAINTIFF IN I.A NO. 1403 OF 2011 DATED 27.08.2011. EXHIBIT P9. COPY OF THE ORDER PASSED BY THE HON'BLE MUNSIFF COURT, PALA IN I.A NO. 1403 OF 2011 IN O.S NO. 70 OF 2010 DATED 13.10.2011. RESPONDENTS' EXHIBITS : NIL. /TRUE COPY/ P.A. TO JUDGE SU THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3728 of 2011 --------------------------------------- Dated this 16st day of December, 2011 JUDGMENT Petitioner is aggrieved by Ext.P9, order passed by the learned Munsiff, Pala on 13.10.2011 on I.A.No.1403 of 2011 in O.S.No.70 of 2010. Attempt of petitioner to get impleaded in the suit as additional defendant failed. 2. Third respondent as power of attorney holder of the second respondent is said to have executed an agreement for sale dated 15.05.2007 in favour of the first respondent regarding 2 cents which according to the petitioner, formed part of 4.86Ares. The second respondent had mortgaged the said 4.86Ares in favour of the Kidangoor Rural Housing Co-operative Society (for short, "the Society”). To enforce the agreement for sale, first respondent filed O.S.No.70 of 2010 against respondents 2 and 3 being the alleged vendor and the power of attorney holder. In the meantime, it is the case of petitioner that second respondent defaulted payment of amount to the society and the latter initiated proceeding against the second respondent. An award was passed for recovery of money from the second respondent. Property mortgaged was sold in auction for recovery of the O.P(C).No.3728 of 2011 -: 2 :- amount as per that award. It was purchased by the petitioner in whose favour Ext.P2, sale certificate was also issued. It is contended that on petitioner depositing the purchase price with the society, second respondent filed W.P(C).No.26718 of 2011 in this Court for a direction to the society to refund the excess money (after adjusting liability under the loan). Learning about pendency of O.S.No.70 of 2010, petitioner filed I.A.No.1403 of 2011 in that suit to implead him as additional defendant. That application was dismissed by the learned Munsiff by Ext.P9, order which is under challenge. 3. It is contended by learned counsel that petitioner being very much interested in the subject matter of the suit is entitled to be impleaded as additional defendant. According to the learned counsel for an effective adjudication of the dispute involved in O.S.No.70 of 2010, presence of petitioner as a party in the suit is necessary or atleast proper, and hence learned Munsiff was not correct in dismissing I.A.No.1403 of 2011. Learned counsel also complained that learned Munsiff while deciding I.A.No.1403 of 2011 has treated the application as a suit filed by petitioner, gone into the title of petitioner and even entered a finding that property covered by Ext.P2, sale certificate O.P(C).No.3728 of 2011 -: 3 :- in favour of the petitioner is different from the property which is subject matter of O.S.No.70 of 2010. 4. Learned counsel for first respondent/plaintiff contended that O.S.No.70 of 2010 being a suit for specific performance of an agreement executed by the second respondent through his power of attorney in favour of the first respondent, presence of a third party in that suit is neither necessary nor proper. Reliance is placed on the decisions in Kasturi Vs. Iyyamperumal and Ors. ((2005)6 SCC 733) and Ramesh Chandra Pattnaik Vs. Pushpendra Kumari and Ors. ((2008) 10 SCC 708). 5. It is settled position of law that so far as a suit for specific performance of an agreement for sale is concerned, no enquiry into title even of the vendor is contemplated. In such a suit, what is required to be decided is only whether the agreement pressed into service is genuine and if so, it is to be enforced. Title of the vendor is to be decided in other proceedings. That is the principle laid down in the decisions referred above. The junction of a third party who may have a claim to the subject matter of the suit for specific performance is not required. O.P(C).No.3728 of 2011 -: 4 :- 6. Viewed in that line, it is not as if learned Munsiff was required to decide title pleaded by the first respondent while deciding O.S.No.70 of 2010. Question involved in that suit are mainly whether any agreement for sale is executed in favour of the first respondent and if so, it is specifically enforceable. If petitioner claims title over the property covered by the sale certificate in his favour and he considers it necessary to enforce it, it has to be done in other appropriate proceedings. In that view of the mater I am not inclined to think that junction of petitioner is required in O.S.No.70 of 2010 either as a necessary or as a proper party. 7. But, learned Munsiff was not correct in going into the claim made by petitioner by virtue of Ext.P2, sale certificate and/or whether property covered by that certificate is part of subject matter of the suit. It was unnecessary to go into those questions while deciding I.A.No.1403 of 2011. Hence whatever observation/finding learned Munsiff has entered on the title claimed by petitioner as per Ext.P2, sale certificate and whether property covered by Ext.P2 is also part of subject matter of the suit property will stand expunged. But the ultimate order dismissing I.A.No.1403 of 2011 does not call for interference. O.P(C).No.3728 of 2011 -: 5 :- 8. It is made clear that it is open to the petitioner to enforce title he claims as per Ext.P2, sale certificate in the manner provided under law before the appropriate forum, if required. Subject to the directions and observations made above, this original petition is dismissed. (THOMAS P. JOSEPH, JUDGE) Sbna/-