s/o abbaiah, aged about 36 years, r/o bellikere...
TRANSCRIPT
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B ADI
REGUALR FIRST APPEAL No.1372/2003
BETWEEN :
SRI B A KRISHNAMURTHY,S/O ABBAIAH, AGED ABOUT 36 YEARS,R/O BELLIKERE VILLAGEANUGONDANAHALLI HOBLIHOSKOTE TALUK. ...APPELLANT
(BY SRI:S V SHASTRI, ADVOCATE)
AND :
SRI K G KODANDARAMA,S/O GIDDANNA REDDY,AGED ABOUT 32 YEARS,R/O MATHRUSHREE NILAYAHOUSE NO.648, 21 CROSS ROAD23RD MAIN ROAD, HSR LAYOUTCENTER-2, BANGALORE- 560 034. ...RESPONDENT
(BY SRI:G L VISHWANATH, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 R 1 READ WITH SECTION 96 of CPC AGAINST THE JUDGMENT AND DECREE DATED 09.07.2003 PASSED IN
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O.S.NO.33/1994 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE (SR.DN), BANGALORE RURAL DISTRICT, BANGALORE, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.
THIS RFA COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
Appeal is by the defendant against the judgment and decree
in O.S.No.33/1994 dated 09.07.2003 on the file of I Additional
Civil Judge, Bangalore Rural District, Bangalore.
2. Parties will be referred to as per their ranking in the trial
court.
3. Suit is one for a direction to the defendant to execute the
Sale Deed in favour of the plaintiff or his assignees in pursuance of
the agreement of sale dated 03.02.1992 and Supplemental
Agreement dated 17.06.1992. In case the defendant fails to execute
the sale deed in favour of the plaintiff, the Hon’ble Court be
pleased to execute the same in favour of the plaintiff.
4. Plaintiff's case was that, on 03.02.1992, the defendant
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entered into an agreement to sell the suit schedule property bearing
Sy.No.146 measuring 2 acres 8 guntas and Sy.No.147 measuring 2
acres 6 guntas, both situated at Bellikere Village, Anugondahalli
Hobli, Hosakote Taluk, Bangalore District, in all to the extent of 4
acres 14 guntas for consideration of Rs.2,08,800/-.
5. On the date of agreement, plaintiff paid an amount of
Rs.1,00,000/- in advance, subsequently, plaintiff paid Rs.65,000/-,
on the date of supplemental agreement, the balance amount was
paid. In all, plaintiff has paid Rs.2,08,800/-. The supplemental
agreement dated 17.06.1992 is registered, and the defendant has
confirmed the execution of the agreement of sale dated 03.02.1992
and delivery of possession of the suit schedule property in part
performance of the agreement of sale. In pursuance of the
agreement of sale, defendant also executed registered General
Power of Attorney in favour of the plaintiff, authorising the
plaintiff to enter into an agreement with the others for transfer /
sale of the suit schedule property either in one lot or in several
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portions or undivided shares. Since then, the plaintiff has been in
peaceful possession and enjoyment of the suit schedule property
without any interference whatsoever from anybody else including
the defendant. The suit schedule property consists of Eucalyptus
plantation and has been managed and maintained by the plaintiff
since the date of his possession.
6. On 24.01.1994, when the plaintiff went to the Sub-
Registrar's office at Hoskote along with perspective purchaser of
the suit schedule property, he was informed by the Sub-Registrar
that the General Power of Attorney dated 17.06.1992 executed by
the defendant in favour of the plaintiff has been revoked. The said
revocation of the General Power of Attorney unilaterally was
illegal and had been done with intention of depriving the plaintiff
of his right over the suit schedule property.
7. Plaintiff has paid the entire sale consideration amount in
respect of the suit schedule property under the agreement dated
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03.02.1992 and supplemental agreement dated 17.06.1992. There
was no reason for the defendant to revoke the General Power of
Attorney.
8. Plaintiff was always ready and willing to get the sale deed
executed in his name. Defendant was trying to depart from the said
agreement, thus, it became necessary for the plaintiff to insist for a
specific performance of the agreement. The cause of action
accrued to the plaintiff on 17.06.1992 and from the date of which
the defendant denied. Accordingly, the plaintiff filed a suit for
specific performance of the agreement of sale.
9. Defendant entered the appearance and filed the written
statement interalia denying the execution of the agreement itself.
He also denied the receipt of Rs.1,00,000/- and Rs.65,000/- and
other payments. According to the defendant, he had engaged the
plaintiff for cutting and selling the Eucalyptus trees and in this
regard, plaintiff wanted the necessary documents authorizing him
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to cut and remove the Eucalyptus trees. Accordingly, the defendant
was asked to execute the documents in favour of the plaintiff.
Defendant was not aware of the contents of the document dated
03.12.1992, as he was unable to read and write Kannada or
English. He knows only to affix the signature. That being the
position, no credence could be attached to the agreement of sale
dated 03.12.1992. He also alleged that, the contention of the
plaintiff that, supplemental agreement was entered into between the
plaintiff and the defendant on 17.06.1992 and in the said document,
plaintiff had paid Rs.43,800/- to the defendant etc., are all false.
The supplemental agreement was not executed by the defendant
agreeing to sell the property in favour of the plaintiff. The plaintiff
under the guise of fulfilling his agreement to cut and sell the
Eucalyptus trees belonging to the defendant induced the defendant
to affix his signature on the blank stamp paper. Defendant does not
know either to read or write Kannada or English. He also denied
the delivery of possession, however, admitted that, plaintiff in
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furtherance of agreement to cut, remove and sell the eucalyptus
treed belonging to the defendant, had paid sum of Rs.20,000/- and
Rs.7,500/- by means of two cheques, being a part of value of the
eucalyptus trees. He also alleged that, the execution of the
agreement in favour of the plaintiff is false, when the defendant
came to know that the General Power of Attorney has been taken
by the plaintiff, he went to the Sub-Registrar's office and got the
General Power of Attorney cancelled on 04.01.1994. The plaintiff
represented to the defendant at the time of execution of Power of
Attorney that he required the original title deed in respect of the
suit schedule property to convince the ownership of the eucalyptus
trees of the defendant to the prospective buyers of the same.
Plaintiff also made the defendant to believe that he would return
the title deeds to the defendant after the completion of the sale of
the eucalyptus trees standing on the schedule land. Under these
circumstances, the documents of title of the suit schedule
properties came to be in possession of the plaintiff and not in
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furtherance of the alleged agreement of sale. He alleged that,
except receipt of Rs.27,500/-, defendant has not received any
amount from the plaintiff. Further, defendant does not own any
other land except the suit schedule property. Moreover, he is
depending upon the income derived out of the cultivation of the
suit schedule property. Accordingly, he contested the suit.
10. The trial court on the basis of the pleadings, framed the
following issues:
(1) Whether the plaintiff proves that defendant by the agreement to sell dated 03.02.1992 and supplemental agreement dated 17.06.1992 had entered into an agreement with plaintiff, agreeing to sell suit schedule properties to plaintiff for Rs.2,08,000/-?
(2) Whether the plaintiff proves that in furtherance of the alleged agreement, the defendant had received advance amount of Rs.1,08,000/-?
(3) Whether the plaintiff proves that in furtherance of part performance of the alleged agreement to sell, the defendant had put the plaintiff in possession of the plaint schedule property?
(4) Whether defendant proves that Rs.27,500/- is one received by him from plaintiff is part of value of
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eucalyptus tree to be cut and sold as referred in para 5 of the written statement?
(5) Whether the plaintiff proves that he is entitled for relief of specific performance of agreement to sell?
(6) Whether the defendant proves that by granting the relief of specific performance, undue hardship will be caused to him?
(7) Whether the plaintiff proves that he is entitled for alternative relief of refund of amount?
(8) If so,(a) For what amount he is entitled?(b) With what interest he is entitled for?
(9) To what relief parties are entitled?
(10) What order?
11. Before the trial court, plaintiff got himself examined
as PW-1, two attesting witnesses, Muniraju and Govindachari were
examined as PW-2 and PW-3. Exs.P1 to P3 i.e., sale agreement,
supplemental agreement and General Power of Attorney were
marked in the evidence of plaintiff. The defendant got himself
examined as DW-1 and examined one Kodandaramaiah as DW-2
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and produced Exs.D1 to D23.
12. Trial court on the basis of these evidence, held that the
plaintiff has proved the agreement and supplemental agreement, he
has also proved that the defendant has received the sale
consideration. Plaintiff has further proved that in part performance
of the agreement, he was put in possession. Defendant has failed
to prove that he had received Rs.27,500/- from the plaintiff as a
part of the value of the eucalyptus trees to be cut and sold as
referred to in para-5 of the written statement. Defendant has also
failed to prove that, grant of decree for specific performance would
cause undue hardship to the defendant. Accordingly, decreed the
suit of the plaintiff.
13. It is against the said judgment and decree, defendant is
before this Court.
14. I heard Sri.S.V.Shastry, learned Counsel appearing for
the defendant and Sri.G.L.Vishwanath, learned Counsel for the
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plaintiff.
15. The main contention of the learned Counsel for the
defendant is that, defendant specifically contended in his written
statement that, the plaintiff contacted the defendant to cut, remove
and sell the Eucalyptus trees standing on the suit schedule property.
In this regard, defendant had agreed to sell the same for
consideration of Rs.35,000/-, as a part of sale consideration,
defendant had received Rs.20,000/- and Rs.7,500/- by way of two
cheques, which is also evident from Ex.D1. Except this amount,
defendant has not received any other amount. In the evidence,
DW-1 has specifically denied the execution of the agreement,
though the defendant has stated that, he went to the Sub-Registrar's
office and signed some blank stamp papers, but the said documents
were in furtherance with the agreement to cut, remove and sell the
eucalyptus trees. PW-1 – plaintiff in his evidence has also admitted
that, eucalyptus trees were standing on the suit schedule property
and he had cut the eucalyptus trees. Thus, from the evidence of
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defendant and the plaintiff, it is clear that, on the suit schedule
property, eucalyptus trees were standing and the case of the
defendant being that it was in connection with removal of the
eucalyptus trees, plaintiff had entered into an agreement. The
defendant does not know reading and writing in Kannada or
English, both in his written statement as well as in the evidence, he
has stated that, he does not know the contents of Exs.P1, P2 and
P3. As such, no importance to be attached to Exs.P1 to P3. He
also pointed out that, in the agreement Ex.P1, it is stated that,
Rs.80,000/- was paid in cash and Rs.20,000/- was paid by cheque,
whereas, PW-1 in his evidence at para-8 has stated that,
Rs.1,00,000/- was paid in cash, in turn, PW-2 has stated that,
Rs.80,000/- was paid in cash and Rs.20,000/- was paid in cheque.
There is a discrepancy in the evidence of the plaintiff himself.
Plaintiff in the cross-examination though admits that, he has got a
pass book for having paid the amount in cheque, however, he has
not produced the same. He does not remember as to when the said
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amount was paid. Except Ex.P2, he does not have any document to
show that he was put in possession, as such, the evidence of the
plaintiff being not inspiring, the trial court should not have held
that the agreement is proved. He also contended that, even
assuming that the defendant had gone to the Sub-Registrar's office,
but that does not absolve the plaintiff from proving the contents of
Exs.P1 and P2 more so when it was seriously disputed.
16. On the question of hardship, he submitted that, defendant
in his written statement has contended that, the suit schedule
property is the only property for the family and out of the income
derived from the suit schedule property, defendant maintains his
family, as such, under Section 20 of the Specific Relief Act ('Act'
for short), the trial court should have exercised the judicial
discretion by denying the specific performance of the contract, in
turn, it would have ordered for refund of earnest money along with
interest.
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17. To support his contention, he relied on the judgment
reported in 2001 AIR – Kant.H.C.R 2886 in the matter of A.C.
Arulappan vs. Smt. Ahalya Naik and submitted that, granting of
specific performance is an equitable relief, though the same is now
governed by the statutory provisions of the Specific Relief Act,
1963. These equitable principles are nicely incorporated in Section
20 of the Act. The trial court, which had the added advantage of
recording the evidence and seeing the demeanour of the witnesses,
should consider the relevant facts and circumstances to come to the
conclusion whether the granting of decree is just and proper. He
also relied on the another judgment of the Apex Court reported in
2008 SAR (Civil) 507 in the matter of Hardeo Rai vs. Shakuntala
Devi and others to submit that, court should have exercised
discretion judiciously.
18. Sri.Vishwanath, learned Counsel appearing for the
plaintiff submitted that, Exs.P1 and P2 are the agreement and
supplemental agreement. Ex.P2 is the supplementary registered
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agreement. Ex.P3 is the general power of attorney executed by the
defendant, which is also a registered document. Defendant in his
written statement has admitted that, he got the general power of
attorney cancelled on 04.01.1994, which proves that the general
power of attorney was executed by the defendant.
19. As far affixture of signature at para-3 of the written
statement, defendant has admitted that, the plaintiff under the guise
of fulfilling his agreement to cut, remove and sell the eucalyptus
trees belonging to this defendant, induced the defendant to affix his
signature on the blank stamp paper. Defendant has admitted the
signature on Exs.P1, P2 and P3, which also proves the execution
of Exhibits P1, P2 and P3.
20. Insofar as denial of the agreement is concerned, defence
of the defendant is that, he had entered into an agreement to sell the
eucalyptus trees and in this regard, for the purpose of securing the
permission from the Forest Department, he had signed the
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document and towards this, he had agreed to receive Rs.35,000/-
and has received Rs.27,500/-. In the examination-in-chief,
defendant has not only denied his signature on Exs.P1, P2 and P3,
but he has also denied his signature on his own document seeking
cancellation of agreement. It only shows that, the defendant
deliberately in an attempt to deny his signature, he has denied his
signature on his own application for cancellation of the General
Power of Attorney. Further, to prove that there was any transaction
to cut, remove and sell the eucalyptus trees, not a single document
has been proved. In turn, in the cross examination, the defendant
admits that, he himself had cut the eucalyptus trees and thereafter,
as on the date of his cross-examination, eucalyptus trees were all of
6 to 7 years. If 6 to 7 years comes to 1993 and they are preserved
by the plaintiff for the purpose of his daughter's marriage, this
falsifies the case of sale of eucalyptus trees. There is no evidence
to show that, the defendant had entered into any other contract or
agreement either to cut, remove and sell the eucalyptus trees or
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otherwise.
21. When document is registered, signature is admitted, it
proves the execution. Once the execution is admitted, the burden
is on the defendant to disprove the same. However, defendant
except the oral testimony alleging the sale of eucalyptus trees,
nothing on record to show that, any such transaction was there
between the plaintiff and the defendant, in turn, the receipt of
Rs.27,500/- by way of cheque is not in dispute i.e., for Rs.20,000/-
and Rs.7,500/- are dated 03.2.1992 and 17.06.1992, i.e., the date of
Ex.P1 and Ex.P2. The original documents of the properties are in
the custody of the plaintiff, it is also admitted by the defendant.
Ex.P1 shows that, possession was delivered in part performance of
the contract. Having regard to this evidence, the trial court rightly
has given a finding that the agreement is proved and further, the
entire sale consideration has been paid in two documents. Once
the entire sale consideration is paid, question of proving the ready
and willingness assumes no importance.
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22. As far as hardship is concerned, he submitted that,
Section 20 sub-section (2) clause (b) contemplates that, the Court
may properly exercise the discretion not to decree the specific
performance where the performance of the contract would involve
some hardship on the defendant, which he did not foresee, whereas
its non-performance would involve no such hardship on the
plaintiffs. There is no material on record to show that, as to what is
the nature of hardship, which he had not anticipated, that he had
children when the agreement entered into. He having knew that
the property is under sale and he had entered into sale deed as per
market price and accordingly, he has received the amount. If that is
so, the question of exercising the discretion under Section 20 also
does not arise. The trial court on proper appreciation of the
evidence has found that, the defendant has not made out any case
for invoking Section 20 of the Act and when the defendant has
disputed the execution of the agreement itself, he has not entitled to
raise the question of hardship.
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23. In the light of the rival contentions, the points that arise
for consideration are:
(i) Whether the judgment and decree of the trial
court calls for interference?
(ii) Whether the defendant has made out any case to
disprove Exs.P1, P2 and P3 and also has made out any
case of hardship?
24. Ex.P1 is the agreement of sale dated 03.02.1992, under
the said agreement, defendant had agreed to sell the suit schedule
property for consideration of Rs.2,08,800/-. The clause under the
agreement shows that, the sale deed to be executed within three
months before the Sub-Registrar. PW-1 in his evidence has stated
that, he had entered into an agreement as far as Ex.P1. A
discrepancy sought to be made out by the learned counsel for the
defendant in the evidence of PW-1 was that, Ex.P1 refers to cash
payment of Rs.80,000/- and Rs.20,000/- by cheque as advance
amount of Rs.1,00,000/- as part of sale consideration, whereas in
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the evidence, PW-1 states that, he has paid Rs.1,00,000/- cash. In
my opinion, assuming that the plaintiff mentioned Rs.1,00,000/-,
the fact remains that Rs.1,00,000/- consideration paid under the
agreement does not get vitiated by mentioning that it is in cash,
however, PW-2 in his evidence has categorically stated that, he is a
witness to the agreement and has stated that, amount of
Rs.80,000/- was paid in cash and Rs.20,000/- was paid by way of
cheque. Ex.P2 is the registered supplemental agreement. In the
supplemental agreement, the agreement dated 03.02.1992 is
admitted, payment of Rs.1,00,000/- and Rs.65,000/- is also stated
on the date of supplemental agreement and on the date of
supplemental agreement, the defendant paid Rs.43,800/-, which
completes the total payment of sale consideration of Rs.2,08,800/-.
It is not in dispute that, on the said date also, out of Rs.43,800/-,
Rs.7,500/- was paid by cheque. The passbook Ex.D1 produced by
the defendant himself evidences receipt of two cheques, one for
Rs.20,000/- dated 03.02.1992 and second for Rs.7,500/- dated
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17.06.1992. In Ex.P2, supplemental agreement, para-2 clause-8
states that, the plaintiff was put in possession of the suit schedule
property in furtherance of the agreement as a part performance of
the agreement. It is also mentioned that, the defendant has
executed the general power of attorney as per Ex.P3.
25. Ex.P3 cannot be disputed, as Ex.P3 is got cancelled by
the defendant himself as per Ex.D2 dated 04.01.1994. In Ex.D2,
defendant admits that, he has executed the general power of
attorney and was registered before the Sub-Registrar. The contents
of the General power of attorney proves the execution of
agreement, as the same is also referred to.
26. On one hand, defendant admits the execution of general
power of attorney. He also admits the handing over of the original
records of the suit schedule property to the plaintiff. He also
admits that, he had put the signature on the blank stamp paper. On
the other hand, he denies the signature not only on Ex.P1 – sale
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agreement, Ex.P2 - supplemental agreement and Ex.P3 – General
Power of Attorney, but also denies his own signature on Ex.D2.
However, Ex.P2 and P3 being a registered document, defendant
admits having gone to the Sub-Registrar's office and has signed,
there is no evidence to the contrary to prove that, these signatures
were obtained by the plaintiff for the purpose of cut, removal and
sell the eucalyptus tree nor it is the evidence of the defendant that
the eucalyptus trees were cut by the plaintiff. In turn, his own
evidence in the cross-examination shows that, he has preserved the
eucalyptus tress for his daughter's marriage and they are of the age
of 6 to 7 years as on the date of cross-examination. This evidence
falsifies the case of the defendant that, he had signed some
documents for the purpose of cut, remove and sell the eucalyptus
trees. It also falsifies that, he has only received Rs.27,500/- by
cheque, as his signature on the document having been admitted
and correspondingly, the cheques are also given towards part
payment. Defendant admits some part and denies the other part.
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Further, Ex.D2 proves that he executed the general power of
attorney. Both EX.P2 and Ex.P3 show that the plaintiff was put in
possession in part performance of the agreement. This evidence
clearly proves and establishes that the defendant had entered into
an agreement with the plaintiff.
27. If Ex.P1 and Ex.P2 are proved, the complete sale
consideration of Rs.2,08,800/- was paid as on the date of
17.06.1992 i.e., supplemental agreement, when the plaintiff was
put in possession, as such, the question of plaintiff proving his
ready and willingness to perform his part of contract also does not
arise except taking the sale deed.
28. As far as hardship is concerned, even according to the
defendant, the suit properties are purchased by him in 1988. To
prove that, it is purchased out of joint family income, there is
nothing on record, there is no pleading that, the suit schedule
property was an ancestral property, there is no pleading that it was
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purchased out of joint family income. Defendant had purchased
the suit schedule property in 1988 and entered into an agreement in
1992. Hence, there is nothing to show that any hardship that he
had not foreseen. Section 20 sub-section (2) clause (b) of the Act
arises only when the agreement is admitted and the defendant had
not foreseen the hardship that he would suffer at the time of
execution of the sale deed. The Court has to exercise the discretion
judiciously to deny the specific performance of the contract. In
this case, the defendant having disputed the agreement, defendant
having purchased the same in 1988 and there is no changed
circumstance between 1988 and 1992 or from 1992, till the decree
is passed, if that is so, except alleging that, he will be put to
hardship, there is nothing on record to show that defendant would
be put to great hardship in terms of Section 20(2)(b) of the Act to
deny the specific performance of the contract.
29. Further the provisions of Section 20(2)(b) of the Act
would not be invoked when the agreement itself is denied, further,
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when the entire sale consideration is received.
30. The judgments relied on by the learned Counsel for the
appellant have no application to the facts and circumstances of the
case.
31. The trial court on proper appreciation of the evidence has
rightly held that the agreement is proved. Further, has held that no
hardship would be caused to the defendant, accordingly, decreed
the suit. On re-appreciation of the same, I do not find there is any
justifiable reason to interfere with the judgment and decree of the
trial court.
32. An application for impleading is filed by the children of
the defendant on the ground that, partition suit is filed. I do not
find there is any reason to implead the children of the defendant in
the appeal, as the defendant alone has entered into an agreement.
Hence, the applicants are neither necessary nor proper parties in
this appeal.