SHAKEERUNNISSA W/O LATE AMANULLA KHAN @ MUSTHAK AHMED AND OTHERS Vs. SRI SYED SAMIULLA S/O LATE SYED AHMED

JUDGEMENT

(1.) RESPONDENTS in RA No.59/2009 on the file of the Prl. District Judge, Kolar, aggrieved by the judgment and decree dated 30.7.2010 setting aside the judgment and decree dated 1,4.2009 in OS No.7/2008 of the I Addl. Civil Judge, Kolar, have presented this appeal. The appellants instituted OS No.7/2008 for declaration of their 1/36th share for partition and separate possession of the suit schedule property arraying the two brothers respondents 1 and 2 herein as defendants. The parties entered trial and the lower court having regard to the material on record decreed the suit with costs and declared that the plaintiffs were entitled to 1/36th share in the suit schedule property as also possession by metes and bounds. Respondents 1 and 2 filed RA No.59/2009, whence, the 3rd respondent claiming to be the purchaser of the suit schedule property from ølie Mubina who in turn is said to have acquired title by way of a gift of the suit schedule property from respondents 1 and 2 filed IA No.I under Order 1 Rule 1');">10 of CPC to be impleaded as an additional respondent in the appeal. The lower appellate court having observed the assertion of the 3rd respondent more appropriately in the light of the sale deed dated 6.12.2007 conveying the suit schedule property in favour of the applicant therein by the said Mubina being prior to 2.1.2008 the date of institution of the suit, opined that the 3'd respondent was a proper and necessary party to the suit, following the decision of the Apex Court In Shaw As Another v. Farida Khatoon AIR 2005 SC 2209 and also the decision of this Court in Subbanna v. Kamaiah ILR 1988 KAR 786 and accordingly allowed the appeal setting aside the judgment and decree of the trial court and remitted the proceeding for fresh consideration, by judgment and decree dated 30.7.2010.

(2.) SRI R.Nataraj, learned counsel for the appellant submits that under the Mohammadan law as applicable to Sunnis governing inheritance, the plaintiffs and defendants 1 and 2 being ret_id -daries are entitled to 3/7th share and 4/7th share, respectively, in the suit schedule property left behind by their father which though opposed by defendants 1 and 2, when their relationship was admitted in the written statement, the Lower Appellate Court was not justified in setting aside the judgment and decree of the trial court and remitting the proceeding for a fresh consideration at the instance of the 3rd respondent purchaser of the suit schedule property. In other words learned counsel submits that 3rd respondent is neither a necessary nor a proper party for the complete determination of the dispute between the parties in the suit, by placing reliance upon the decision of the Apex Court in Khemchand Shankar Choudhari Bir Another v. Vishnu Hari Patil and Others 3 (1983) 1 SCC 18

(3.) IN the case of Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, AIR 1963 SC 786 observed thus: The law as to who are necessary or proper parties to a proceeding is well settled. A necessary party is one without whom no order can be made qfectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.