PALLAPU KONDAIAH Vs. PALLAPU GURUVALU

JUDGEMENT

(1.) This revision petition under Section 115 of the Code of Civil Procedure is directed against the order of the Subordinate Judge, Kavali, whereby he rejected the application of the petitioners to implead them as party defendants Nos. 5 to 10 in O S.No. 12 of 1976.

(2.) Facts necessary for the disposal of this revision petition briefly stated are these; Petitioners 1 to 5 are brothers. The 6th petitioner is their mother and the second wife of Peda Ankaiah. Respondents 1 and 2 a,e the two sons of Peda Ankaiah by his first wife. The 1st. respondent laid O.S.No. 12 of 1976 against the 2nd respondent and respondents 3 to 5 alleging that some 30 years ago there was a division of the family properties between the sons of the first wife on the hand, and Ankaiah and the sons of the second wife on the other and since then the parties were in separate possession and enjoyment of the properties that fell to their shares. The case of the plaintiff further is that after the above partition, he and 2nd respondent lived jointly and acquired some other property. He thus sought a partition of their properties. The partition sought was in between himself and the 2nd respondent. The 2nd respondent in his written statement admitted that he and the 1st respondent separated from their father and their step-brothers and that the division of the properties between them on one hand, and the father and step-brothers on the other took place some 30 years ago. While things stood thus, petioners Nos. 1 to 6 filed I.A.No. 482/ 1977 for impleading them as party defendants to the suit. According to them, the suit properties along with some other properties are still the properties of the joint family constituted of them-selves and respondents 1 and 2 and that they are also entitled to their shares in all the joint family properties. Thus, impliedly they denied that there was ever any partition between respondents 1 and 2 on the one hand, and Peda Ankaiah and the petitioners on the other. They would thus put it that all questions involved in the suit can be properly adjudicated if they are impleaded in the suit and thus they are necessary parties to the suit.

(3.) This petition was opposed by the 1st respondent alcne; but respondents 2 to 5 did not file any counter. The 1st respondent inter alia contended that the petitioners did not disclose the alleged other properties which are said to be still joint. He also reiterated that according to the plaint averments and the admission of the 2nd respondent in the suit, there was already a division of the family properties some 30 years ago and that if the petitioners are added on the ground that the family properties still remained joint, the scope of suit would be enlarged. The further contention was that the plaintiff cannot be forced to fight the suit against the parties whom he does not wish to be added as parties.