Judgment:
L. Narasimha Reddy, J.
1. Defendants 2 to 4 in O.S. No. 422 of 1982 on the file of the I Additional District Munsif, Madanapalle filed this second appeal.
2. The first respondent filed the suit, initially for the relief of perpetual injunction against the appellants and their other brother, the second respondent herein. He pleaded that Appellants 1 and 2 herein sold their share of land in Sy. Nos. l 165/1 and 1166/B admeasuring Ac. 0.51 cents each, through separate sale deeds, dated 22-6-1967 and 18-8-1967. He contended that ever since the date of sale, he is in possession and enjoyment of the property and that the appellants and the second respondent started interfering with his possession.
3. The appellants and their brother filed a written statement admitting the execution of the sale deeds, but pleaded that they were nominal. It was also contended that the suit schedule property belongs to joint family, comprising of themselves, another brother and their sisters and, at the most, the first respondent could have filed a suit for partition. It was in this context that the first respondent amended his plaint, incorporating the prayer for partition of the suit schedule properties and allotment of the suit land towards his share. The appellants did not file any written statement, after the suit was amended.
4. The trial Court decreed the suit through its judgment, dated 21-11-1990. Aggrieved thereby, the appellants and the second respondent filed A.S. No. 20 of 1991 in the Court of the Additional District Judge, Madanapalle. The appeal was dismissed on 31-3-1997. Hence, the second appeal.
5. Sri R. Radhakrishna Reddy, the learned Counsel for the appellants submits that even assuming that the sale deeds marked as Exs.A-1 and A-9 are legally enforceable, the first respondent was under obligation to implead all the coparceners of the joint family and the suit in its present form was not maintainable in law. He submits that the trial Court and the lower appellate Court failed to bestow their attention to such an important aspect.
6. Sri Pramod, the learned Counsel for the first respondent, on the other hand, submits that being the vendors under Exs.A-1 and A-9, the appellants herein are not entitled to raise any objection in relation to the partition of the property covered by the said documents. He further contends that the appellants did not raise any plea as to the no-joinder of necessary parties after the plaint was amended.
7. The trial Court framed necessary issues on the basis of the amended pleadings. The first respondent deposed as P.W.1 and he filed two sale deeds, marked as Exs.A-1 and A-9, a bunch of cist receipts marked as Exs.A-3 to A-8 and an order passed in I.P. No. 12 of 1972 marked as Ex.A-2. On behalf of the appellants herein, DWs.1 and 2 were examined and Ex.B-1, certified copy of the mortgage deed, dated 24-1-1965, was filed. The suit was decreed and the appeal preferred by the appellants was dismissed.
8. The main contention advanced on behalf of the appellants is that the suit for partition filed by the first respondent was not maintainable, since all the coparceners of the joint family were not impleaded. It is no doubt true that in a suit for partition, all the coparceners must be impleaded. The reason is that the availability of the items of property for partition and ascertainment of shares would be possible, only, if all the concerned are impleaded in the suit. In the instant case, the first respondent did not claim the status of a coparcener or co-sharer. He purchased the shares of Appellants 1 and 2 herein through sale deeds, marked as Exs.A-1 and A-9. He has stepped into their shoes. Initially, he pleaded that the possession of the property was delivered to him and that he is in enjoyment of the same. However, after the appellants and their brother, the second respondent, filed the written statement, he amended the suit to be the one for partition. His effort was only in relation to the suit schedule property and not in relation to the rest of the properties held by the said coparcenery. It was also not clear as to whether any prior partition has taken place among the family members of the appellants and the fourth respondent.
9. Notwithstanding these uncertainties, the contention of the appellants could have been entertained, if only, it was raised through an additional written statement. It is a matter of record that the appellants did not file any additional written statement, after the plaint was amended. It was urged that a plea to this effect was raised in the written statement filed by them to the un-amended plaint, which was for the relief of perpetual injunction. The occasion to raise a plea as regards a suit for partition did not arise. The plea cannot enure to the benefit of the appellants after the plaint was amended. The Courts below have taken this aspect into account and rejected the contention of the appellants.
10. It is a matter of record that the Appellants 1 and 2 have sold their shares and it makes little difference whether or not there existed any partition before such sales have taken place. Further, the first respondent did not seek partition of the entire properties held by the so-called coparcenery. Viewed from any angle, this Court does not find any question of law, much less, substantial question of law in the second appeal.
11. The second appeal is accordingly dismissed. There shall be no order as to costs.