IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.52219 OF 2017 (GM - CPC) BETWEEN:
1. Smt. Puttamma W/o. Muniraju, Aged about 50 years, R/a. Honnenahalli Village, Rajanukunte Post, Bengaluru North Taluk – 560 064.
2. Smt. Ammayamma W/o. late Krishnappa, Aged about 62 years, Near Maheshwaramma Temple, Opp. Railway Good Shed Road, Old Byappanahalli, Sevanagar Post, Bengaluru – 560 033.
3. Smt. Rathnamma W/o. late Ramaiah, Aged about 58 years, R/a. Honnenahalli Village, Rajankunte Post, Bengaluru North Taluk – 560 064.
4. Smt. Neelamma W/o. late Venkateshappa, Aged about 54 years, R/a. Pemanahalli Village, Lakkur Post, Sompura Hobli, Nelamangala Taluk, Bengaluru District – 562 111.
5. Smt. Sharadamma W/o. Anjinappa, Aged about 48 years, R/a. No.11, 6th Cross, Nagawarapalya Main Road, C.V. Raman Nagar Post, Bengaluru – 560 093.
6. Smt. Saroja W/o. Ananthram, Aged about 44 years, R/a. No.5216, 2nd Cross, Lakkasandra, Adugodi Post, Bengaluru – 560 093.
7. Smt. Komala, W/o. Nagesh, Aged about 42 years, R/a. No.3/7, GRB Building, Nagawarapalya Main Road, C.V. Raman Nagar Post, Bengaluru – 560 093.
(By Sri. K.P. Bhuvan, Advocate) AND:
1. Sri P.K. Rajagopal, S/o. late P.N. Krishnappa, Aged about 49 years, Residing at: Thindlu Village, Yelahanka Hobli, ... Petitioners Bengaluru North Taluk, Bengaluru – 560 064.
2. Sri.Ramachandra S/o late Ramaiah, Aged about 62 years, 3. Sri.Ramakrishna S/o late Ramaiah, Aged about 42 years, Respondents 2 and 3 are residing at Bagalkakunte Village, Nagasandra Post, Yeshwanthapura Hobli, Bengaluru – 560 064.
4. Sri.Rajanna S/o late Ramaiah, Aged about 58 years, 5. Sri.Ramaswamy S/o late Ramaiah, Aged about 52 years, 6. Sri.Krishnappa S/o late Kempaiah, Aged about 65 years, Defendants 4 to 6 are residing at Kondasetty Halli Village, Shivakote Post, Hesaraghatta Hobli, Bengaluru North Taluk, Bengaluru – 560 064.
7. Sri.B.Narayanappa Son of late Byarappa Aged about 71 years, Shivekote Village, Hesaraghatta Hobli, Bengaluru North Taluk, Bengaluru – 560 064. … Respondents This writ petition is filed under Article 227 of the Constitution of India praying to set aside the impugned order dated 04.09.2017 passed on the impleading application I.A.No.14 in O.S.No.1421/2006 by the learned City Civil Judge, Bengaluru as per Annexure-E and thereby to allow the application filed by the petitioner, under Order-1 Rule 10(2) read with Section 151 of CPC.
This writ petition coming on for preliminary hearing this day, the Court made the following:
ORDER Petitioners who are the impleading applicants filed the present writ petition against the impugned order dated 04.09.2017 made in O.S.No.1421/2006 rejecting the application-I.A.No.XIV filed under Order 1 Rule 10(2) read with Section 151 of the Code of Civil Procedure on the file of 1st Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru.
2. The 1st respondent who is the plaintiff before the trial Court filed suit for declaration that the judgment and decree passed in O.S.No.52/97 on the file of Civil Judge, Junior Division, Bengaluru Rural District as null and void and not binding on the plaintiff, to declare that the plaintiff is the absolute owner of suit schedule property and for pertpetual injunction. The defendants No.1 to 3 have filed written statement and denied the plaint averments and contended that the plaintiff has not come before the Court with clean hands and suppressed the material facts. Since the defendants No.3 to 5 started acting detrimental to the interest of the defendants 1 and 2 and the defendants 3 to 5 colluding with each other have gone to the extent of creating a sale deed in favour of the defendant No.6 which is dated 24.09.1988, the defendants 1 and 2 were forced to file the suit in O.S.No.52/1997 for the relief of partition, permanent injunction, declaration regarding the sale deed dated 24.09.1988 etc. The said suit came to be decreed in favour of defendants 1 and 2 on 19.11.2002. Thereafter, defendants 3 to 6 did not come forward to honour the judgement and decree etc. Therefore, defendants sought for dismissal of the suit.
3. When the matter was posted for plaintiff’s evidence, at that stage the proposed applicants-petitioners have filed application under Order 1 Rule 10(2) of the Code of Civil Procedure to implead them as defendants 8 to 15 and mainly contended that one P.K.Rajagopal has filed suit against the brother of 13th applicant in respect of joint family properties and the suit schedule property belongs to the joint family properties and defendants 1 to 7 have no absolute right, title and interest over the schedule property to alienate or mortgage or create third party interest. The plaintiff is claiming his right over the property stating to have been purchased the suit schedule property from defendants 1 to 7 under a registered sale deed, which is not binding on the impleading applicants. Therefore, they are necessary party to the proceedings.
4. The said application was resisted by plaintiff and denied the allegations made in the application for impleading and contended that suit schedule property is not joint family properties of proposed defendants. The proposed defendants have no right, title or interest over the suit schedule property and proposed defendants are not proper and necessary parties to the suit. The plaintiff being the master of his suit has the option to file the suit against the persons who deny the title. If at all, proposed defendants have any right, title and interest over the suit schedule property and if their right is affected, they are free to seek appropriate remedy before the competent court and sought for dismissal of the suit. The trial Court considering the application and objections by impugned order dated 04.09.2017 has dismissed the application-I.A.No.XIV. Hence, the present writ petition is filed.
5. I have heard Sri.K.P.Bhuvan, learned counsel for the petitioners. The learned counsel contended that the impugned order passed by the trial Court rejecting the application-I.A.No.XIV of the proposed impleading applicants under Order 1 Rule 10(2) of the Code of Civil Procedure is erroneous and contrary to material on record. He would further contend that the proposed defendants are proper and necessary parties to adjudicate the matter. Without impleading the proposed defendants, the plaintiffs and defendants will obtain the order behind the back of the proposed defendants. The trial Court ought to have allowed the application. He would further contend that the trial Court failed to notice that defendants-respondents No.1 to 7 have colluded each other with an intention to take a decree behind the back of the petitioners. The petitioners are the legitimate shareholders of the property and that the property belongs to joint family property. Therefore, he would further contend that rejection of the impleading application has resulted miscarriage of justice. Therefore, he sought to allow the writ petition.
6. Having heard the learned counsel for the petitioners, it is undisputed fact that the plaintiff has filed suit for declaration and permanent injunction and to declare that the judgment and decree in O.S.No.52/1997 is null and void and not binding on the plaintiff on the basis of registered sale deed dated 21.05.2004 and based on other documents. Defendants filed the written statement denied the plaint averments. The impleading applicants contended that the suit schedule property is joint family property and that they are necessary parties to the suit. It is a specific case of the plaintiff that the suit schedule property is purchased from defendants No.1 to 7 and the proposed defendants have no right, title and interest over the suit schedule property. If proposed defendants have any right in the property, they are free to seek appropriate remedy in accordance with law.
7. The trial Court considering the application and objections has recorded a finding that the plaintiff is claiming his title over the suit property on the basis of a sale deed executed by the father of the defendant Nos.1 to 4 and proposed defendants. If the proposed defendants have any grievance in respect of the said sale deed executed by their father, it is for them to take proper course of law to set aside the sale deed. Further, if really the suit property is the ancestral family property of the defendants 1 to 4 and proposed defendants and their father had no exclusive title over the said property to alienate the same in favour of the plaintiff, then the proper course open to the applicants/proposed defendants is to file a suit for general partition by adding the plaintiff herein as a party and disputing the alienation of suit property made by their father. But they cannot compel the plaintiff who is the master of his suit, to implead them as parties in the above suit, so as to facilitate them to get their grievance agitated in the present suit itself. Therefore, as rightly contended by the plaintiff, the applicants are neither necessary parties nor proper parties in the above suit for declaration and permanent injunction to resolve the dispute between the parties. Accordingly, the order passed by the trial Court rejecting the application-XIV for impleading the proposed defendants is just and proper.
8. In view of the aforesaid reasons, the petitioners have not made out any ground to interfere with the impugned order in exercise of power under Article 227 of Constitution of India. Accordingly, the writ petition is dismissed.
Sd/- JUDGE UN