IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO. 36230 OF 2018 (GM-CPC) BETWEEN:
SUNDRAMMA, W/O BASAVARAJU, AGED ABOUT 35 YEARS, R/AT HAGANAHALLI VILLAGE, CHINAKURULI HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT.
(BY SRI. SANATH KUMARA K M, ADVOCATE) AND:
1. SMT. GOWRAMMA, W/O N R RAJAPPA, AGED ABOUT 69 YEARS, R/AT NARACHANAHALLI VILLAGE, MIRLE HOBLI, K R NAGAR TALUK, MYSORE DISTRICT.
2. SMT. NAGAMMA, W/O LATE N V V VEERAPPAJJI, AGED ABOUT 64 YEARS, 3. SMT. SHESHIKALA, AGED ABOUT 32 YEARS, … PETITIONER 4. SMT. SUDHA, AGED ABOUT 31 YEARS, 5. SMT.PRAMATHA, AGED ABOUT 28 YEARS, 6. SMT. NAGAMMA, D/O N V VEERAPPA, W/O MUDDAPPA, AGED ABOUT 42 YEARS, RESPONDENTS Nos.3 TO 6 ARE DAUGHTERS OF LATE N R RAJAPPA AND RESPONDENT NO.2 SMT NAGAMMA.
7. SHIVALINGAPPA @ MUDDAPPA, AGED ABOUT 57 YEARS, 8. THIRTHA, S/O SHIVALINGAPPA @ MUDDAPPA, AGED ABOUT 23 YEARS, RESPONDENTS Nos.2 TO 8 ARE THE RESIDENTS OF NARACHANAHALLI VILLAGE, MIRLE HOBLI, K R NAGAR TALUK, MYSORE DISTRICT -571 112.
(BY SRI. HARSHA V, ADVOCATE FOR R1; R2 TO 8 ARE SERVED) … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 04.08.2018 PASSED ON I.A.II FILED IN O.S.NO.367/2016 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC AT KRISHNARAJANAGAR ANNEXURE –F AND ETC., THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The present writ petition is filed by the petitioner whose application came to be rejected under Order 1 Rule 10(2) r/w. Sec.151 of Civil Procedure Code,1908 in a suit filed by the plaintiff for declaration and for possession of the suit scheduled property.
2. The first respondent who is the plaintiff before the trial Court filed suit for declaration to declare that the plaintiff is the absolute owner of the suit schedule property as per Sale Deed dated 28.02.2007 and to direct the defendants to hand over the possession of the suit schedule property to the plaintiff and for payment of past means profits. It is contended that the plaintiff had purchased the suit schedule property from defendants 1 to 4 for valuable consideration of Rs.88,000/- under registered sale deed dated 28.02.2007 and the entire amount was paid to the defendants in presence of witnesses. In pursuance of the registered sale deed, mutation extract and the revenue entries have been entered into the name of the plaintiff. The original sale deed dated 28.02.2007 was lost by the plaintiff on 14.07.2014, for which she gave police complaint to the jurisdictional police. The defendants 1 to 4 along with defendants 5 to 7 refused to deliver possession of the suit schedule properties to the plaintiff. Therefore the plaintiff had no option except to file suit to declare ownership and possession.
3. The defendants filed written statement denying the plaint averments and contended that they never executed sale deed and sought for dismissal of the suit.
4. After completion of evidence of the plaintiff, when the matter was posted for defendants arguments, at that stage, the petitioner herein filed an application under Order 1 Rule 10(2) r/w Sec.151 of Civil Procedure Code, 1908 to implead her as additional defendant No.8 mainly on the ground that the suit schedule property is her ancestral property and she is also having share in the said property and without her knowledge and consent the plaintiff has purchased the suit schedule property and therefore she is necessary and proper party. The said application was opposed by the plaintiff. The trial Court considering the application and objections, by the impugned order dated 04.08.2010 rejected the application. Hence the present writ petition is filed.
5. I have heard the learned counsel for the parties.
6. Sri Sanath Kumara.K.M., learned counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the application for impleadment is erroneous and contrary to law and material placed on record. He further contended that the Court below failed to consider the documentary materials produced by the petitioner in a perspective manner and the trial Court failed to notice that the property is ancestral joint family property and the petitioner is also having right and share in the suit schedule property. The original defendants 1 to4 cannot alienate the suit schedule property which is a joint ancestral property. Therefore the petitioner is necessary and proper party to adjudicate the dispute between the parties. The trial Court ought to have allowed the application in order to avoid multiplicity of proceedings. Therefore the counsel for the petitioner seeks for allowing of the writ petition.
7. Respondent 2 to 8 are served and have remained unrepresented.
8. Per contra, Sri V.Harsha, learned counsel for respondent No.1 sought to justify the impugned order and contended that the plaintiff purchased the suit schedule property by registered sale deed dated 28.02.2007 from defendants 1 to 4 for valuable consideration and the katha and R.T.C. and Mutation entries have been changed in the name of the plaintiff. Inspite of execution of sale deed since defendants 1 to 4 and defendants 5 & 7 refused to give delivery of the possession of the suit schedule property to the plaintiff, the plaintiff has filed suit for declaration and for possession of suit scheduled property from the defendants. In a suit filed for declaration by the plaintiff claiming his right, any person filing impleading application claiming to be necessary and proper party, it is for him to prove before the appropriate court. Therefore he sought for dismissal of the writ petition.
9. Having heard the learned counsel for the parties, it is a specific case of the impleading applicant that the suit schedule property is a ancestral joint family property and she is having a share, without her knowledge and consent the plaintiff purchased the said property from defendants 1 to 4 and therefore she is necessary and proper party. It is the specific case of the plaintiff that she has purchased the suit schedule property under registered sale deed dated 28.02.2007 from defendants 1 to 4 for valuable sale consideration and all the revenue records stand in the name of the plaintiff and if really the impleading applicant was a necessary party what prevented her to challenge the sale deed is not forthcoming, though the registered sale deed was executed in the year 2007 and the suit for declaration and possession was filed in the year 2016. It is for the plaintiff to prove the title for possession based on the oral and documentary evidence on record. The present petitioner claiming ancestral joint family property cannot be impleaded as a party as rightly rejected by the trial Court. If she had any right in the property she has to take recourse of law to protect her right, if any.
10. The trial Court considering the entire material on record, has recorded a finding that this is a suit for declaration and if the share of the impleading applicant in the suit schedule property is not shown, she can approach the court in accordance with law. No purpose would be served if the share of the proposed defendant cannot be determined in a suit. Apart from that the matter was posted for arguments and accordingly the application came to be rejected. The impugned order passed by the trial Court is just and proper. The petitioner has not made out any ground to interfere with the said impugned order in exercise of power under Article 227 of the Constitution of India. Accordingly the writ petition is dismissed.
However, it is always open for the petitioner to protect her right, if any, in the suit schedule property in accordance with law.
Sd/- JUDGE Snb/