- (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. Simultaneously, the petitioner filed an application under Order 1 Rule 10 of the Code for being impleaded as a party in the suit for possession by way of partition filed by respondent No.1. Upon notice of the application, the respondents filed their reply. In the reply, it was pleaded that the preliminary decree was passed on 2.6.2008 which had become final. It was also averred that previously Ram Kumar and Ram Niwas both sons of Risal Singh had purchased plot underneath the building from Babu Ram vide registered sale deed dated 25.2.1971 and construction was raised on their respective portion over the said plots. The southern portion of the house was sold to Harish-the plaintiff for Rs.56,000/- by Ram Niwas son of Risal Singh. It was further submitted that plaintiff-Harish Kumar remained unsuccessful in a civil suit filed by him for permanent injunction, but the appellate court vide judgment and decree dated 15.6.2007 had granted liberty to him to seek possession of the property purchased by him from Ram Niwas by getting it partitioned in accordance with law. The suit for partition had been filed thereafter to seek possession against co-sharer, i.e. legal heir of Ram Kumar. The ownership or possession of the applicant-petitioner was specifically denied. The trial court vide order dated 16.11.2011 dismissed the said application for being impleaded as a party defendant in the suit for possession by way of partition. Hence, the present revision petition.
(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.;