KRISHNA Vs. HARISH AND OTHERS

JUDGEMENT

(1.) The application filed by the applicant-petitioner under Order 1 Rule 10 of the Code of Civil Procedure (in short "the Code") having been dismissed by the trial court vide order dated 16.11.2011 has necessitated the petitioner to approach this Court by way of present petition under Article 227 of the Constitution of India for setting aside the said order.

(2.) Briefly stated, the facts necessary for adjudication as narrated in the petition are that plaintiff-respondent No.1 filed a suit for permanent injunction against the legal heirs of Risal Singh including the petitioner. The said suit was dismissed by the trial court vide judgment and decree dated 27.9.2006. The appeal filed against thereto was also dismissed by the appellate court vide judgment and decree dated 15.6.2007. Subsequently, respondent No.1 had filed a suit for partition regarding his half share purchased vide registered sale deed dated 26.6.2001 by impleading respondents No.2 and 3 as defendants and without impleading the other legal heirs of Risal Singh including the petitioner who were in possession of the suit property. A preliminary decree dated 2.6.2008 for possession by way of partition was passed by the trial court in favour of respondent No.1. When warrants of possession were issued, the applicant-petitioner came to know about the filing of suit for possession by way of partition. Thereafter, the petitioner filed a suit for declaration with consequential relief of permanent injunction by impleading the respondents as defendants.

(3.) Learned counsel for the petitioner submitted that the applicant was a necessary and proper party as she was one of the coowners in the property in dispute. He relying upon the decision of the Hon'ble Supreme Court reported in Ganduri Koteshwaramma and another v. Chakiri Yandadi and another, 2011 4 RCR(Civ) 916 submitted that the preliminary decree passed by the court in a civil suit can be altered or amended before passing of the final decree. In the present case, since the petitioner was a co-sharer, though was not a party at the time of passing of the preliminary decree, the same could be altered and share of the applicant determined.