ORDER
N.K. Patil, J.
1. This revision petition is directed against the order dated 11-7-2001 passed by the Prl. Civil Judge, Junior Division, Pavagada dismissing I. A. No. 9 in FDP 1/1999.
2. The 1st petitioner is the husband and the 2nd petitioner is the son of one late Eramma. The petitioners have succeeded to the estate of deceased Eramma being her legal representatives. Except the petitioners, there are no other legal representatives left behind by the deceased. The said Eramma is the elder sister of the 1st respondent viz., Nagamma. The 1st respondent filed a suit for partition in O. S. No. 36/1987 on the file of the Munsiff and JMFC Pavagada against her mother Kenchamma, the deceased Eramma and others in respect of property
bearing Sy. No. 73 of Kyathaganahalli village, Pavagada taluk, measuring 1.12 acres and other properties claiming l/5th share in the land in question including the movables. The suit was decreed by order dated 22-12-1990. The 1st appellate Court affirmed the decree in so far as the immovables are concerned and set aside the decree in respect of movables are concerned. In Regular Second Appeal before this Court, this Court affirmed the judgment passed by the 1st appellate Court. Pursuant to the decree in O. S. No. 36/1987 which came to be affirmed in RSA 586/1992 for effecting partition, Smt. Nagamma filed Final Decree proceedings in the Court of the Prl. Civil Judge (Jr. Dn.) Pavagada, in FDP 1/1999 without making the petitioners as party respondents in the said FDP proceedings. The petitioners have filed application for impleading them in the said proceedings claiming the share of Smt. Eramma, being the legal representatives of the deceased Eramma. The trial Court by its order dated 11-7-2001 dismissed the application 1A.9 filed by the petitioners. Assailing the correctness of the order passed by the trial Court, the petitioners have filed this revision petition.
3. Heard the learned counsel for the petitioners. The respondents are served and unrepresented.
4. The principal submission of the learned counsel for the petitioners is that the trial Court has seriously erred in holding that there is no share allotted to Eramma in O.S. No. 36/1987. The learned Judge has also failed to observe that l/5th share has been allotted in favour of Smt. Eramma in respect of plaint schedule property. Further he vehemently submitted that the trial Court has barred in observing that the petitioners can file a separate suit for their redress, in spite of the rights of the petitioners have been decided in OS 36/1987 and the same was confirmed by the 1st appellate Court. The trial Court has not considered the fact that the petitioners are necessary parties to the FDP proceedings being the legal representatives of the deceased Eramma and having succeeded to the estate of Smt. Eramma.
5. To substantiate his submission, the learned counsel for the petitioners relied on the judgment and decree of the trial Court and submitted that when once l/5th share has been decreed in favour of plaintiff (1st
respondent herein) in FDP proceedings automatically her sister defendant No. 5 (Eramma) in the original suit would also get l/5th share in the plaint schedule properties. But this fact has not at all been taken into consideration. Further he pointed out in the judgment passed in Regular Appeal 10/1991 in para 44, the Ist appellate Court has observed that defendant No. 1, 5 and 6 will be entitled to l/5th share each in the suit schedule property and also pointed out that late Eramma was 2nd defendant in that appeal. Therefore, without considering the law laid down by this Court, the trial Court has rejected the application filed by the petitioners on the sole ground that late Eramma has not filed the suit for partition seeking her share. Further he contended that the approach of the trial Court is not justifiable in rejecting the application filed by these petitioners.
6. I have perused the impugned orders and reassessed the matter with the assistance of the learned counsel for the petitioner. As rightly pointed out by the learned counsel for the petitioner that the Ist appellate Court in unequivocal terms has observed that defendants 1, 5 and 6 will be entitled to 1/5th share in the suit properly. In spite of bringing it to the notice of the trial Court, the trial Court has not at all taken into consideration and proceeded on the ground that in O.S. 36/1987 the share of Smt. Eramma has not been decided. Therefore, the trial Court observed that the claim of the proposed applicants that they got share in the suit property cannot be granted as the petitioners have failed to produce any material to substantiate their case to implead them as proposed applicants in the FDP proceedings. The said finding given by the trial Court in my considered view is contrary to the material on record. Therefore, on this sole ground, the impugned order passed by the trial Court is liable to be set aside at the threshold. The approach of the trial Court is perverse. Instead of analysing and considering the material on record made available by the learned counsel for the petitioner in the FDP proceedings, the trial Court has rejected their request for impleading them in proceedings. The said rejection is not sustainable and the same is liable to be set aside.
7. Further, it is relevant to mention the law laid down by this Court in the case of H.K. Rajanna v. H.B. Chikkaboraiah reported in 2002 (3) KCCR 1809, wherein it is held as follows-
“that the purposes of impleading a party
in a suit is to decide a case once for all
against the parties interested it is not shown
whether the impleading applicant is a necessary and proper party also in the suit.
Such as order is really perversed and is not
sustainable in law. Though the order is not
reversable as held by the Division Bench of
this Court, it is an illegal order which can
not be allowed to stand. This Court in exercise of supervisory jurisdiction under Article
227 of the Constitution of India has made
this order.”
8. Having regard to the law laid down by this Court as stated supra and taking into consideration the facts and circumstances of the case and on factual and legal position, I do not find any justification to sustain the order passed by the trial Court.
For the foregoing reasons, the revision petition is allowed. The impugned order dated 11-7-2001 passed the Prl. Civil Judge. Junior Division, Pavagada on I.A. No. 9 in FDP 1/1999 is set aside. Consequently. IA No. 9 is allowed. The trial Court is directed to proceed with the matter in accordance with law, as expeditiously as possible.