IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO.9710/2017 (GM-CPC) BETWEEN:
1. SRI HARISH S/O LATE NARASAMMA, AGED ABOUT 42 YEARS 2. SMT. KAMALAMMA D/O LATE NARSAMMA, AGED ABOUT 46 YEARS 3. SMT. VEENAMMA D/O LATE NARASAMMA AGED ABOUT 44 YEARS 4. SMT. NAGARATHNA D/O LATE NARASAMMA AGED ABOUT 44 YEARS ALL ARE RESIDING AT BALE BEEDHI, NEAR CHAMUNDESHWARI TEMPLE, BUDIGERE VILLAGE, CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK, CHIKKABALLAPUR DIST.
... PETITIONERS (BY SRI. ASWATHAPPA D, ADV.) AND:
1. VENKATAPATHI AGED ABOUT 53 YEARS S/O LATE VENKATARAMANAPPA R/A. NO.43, 4TH CROSS, RANGADASAPPA LAYOUT, BANNERUGHATTA ROAD, LAKKASANDRA, BENGALURU 560 029.
2. SMT. THULSAMMA AGED ABOUT 63 YEARS, W/O LATE VENKATESHAPPA, R/A. BUDIGERE VILLAGE, CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK, CHIKKABALLAPUR DIST.
3. SMT GOWRAMMA W/O LATE RAVI AGED ABOUT 40 YEARS R/A F-136 KITHAGANUR COLONY K R PURAM POST BIDARAHALLI HOBLI BENGALURU EAST TALUK BENGALURU DIST 4. SRI JAYARAM S/O LATE VENAKTESHAPPA AGED ABOUT 37 YEARS R/A BUDIGERE VILLAGE CHANNARAYAPATNA HOBLI DEVANAHALLI TALUK CHIKKABALLAPUR DIST 5. SMT RADHA W/O MUNISWAMY AGED ABOUT 36 YEARS R/A F-136, KITHAGANUR COLONY K R PURAM POST BIDARAHALLI HOBLI BENGALURU EAST TALUK BENGALURU DIST 6. SRI DODDAVENKATARAMANAPPA S/O LATE DODDA NARASAPPA AGED ABOUT 84 YEARS R/A BUDIGERE VILLAGE CHANNARAYAPATNA HOBLI DEVANAHALLI TALUK CHIKKABALLAPUR DIST 7. SMT VENKATALAKSHMAMMA D/O LATE NARAYANAPPA AGED ABOUT 55 YEARS R/A NAGANAYAKANAHALLI VILLAGE CHANNARAYAPATNA HOBLI DEVANAHALI TALUK CHIKKABALLAPUR DIST 8. SMT JAYAMMA D/O LATE DODDANARASAPPA AGED ABOUT 77 YEARS R/O BUDIGERE VILLAGE CHANNARAYAPATNA HOBLI DEVANAHALLI TALUK CHIKKABALLAPUR DIST ... RESPONDENTS (BY SRI.J ISAAC FOR C/R1 - ABSENT) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23.02.2017 PASSED BY THE LEARNED ADDL. CIVIL JUDGE AND JMFC, DEVANAHALLI, IN REJECTING THE APPLICATION FILED BY THE PETITIONERS / LRS' OF DEFENDANT NO.7 I.E., I.A.FILED UNDER ORDER XIV RULE 5(1) R/W SEC. 151 CPC IN O.S.578/2007 VIDE ANNEX-J;
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners who are LR’s of 7th defendant have asserted their rights and have made a claim over suit property which is subject matter of O.S.No.578/2007 and they sought for recasting of the issues by filing an interlocutory application on 18.02.2016 – Annexure-G. Same has been rejected by the trial Court by impugned order dated 23.02.2017 and same is called in question.
2. Plaintiff / first respondent herein has instituted a suit O.S.No.578/2007 against defendant Nos.1 to 7 to enforce the purported agreement of sale dated 08.06.2006, contending interalia that they have executed an agreement to sell the suit property on 08.06.2006 and on account of their refusal to execute the sale deed, suit in question is filed seeking relief of specific performance against them.
3. Petitioners are the LR’s of 7th defendant - Smt.Narasamma, who came to be impleaded subsequently. It is the grievance of the writ petitioners that they have a right or share in the suit properties and defendants 1 to 4 could not have entered into agreement of sale with the plaintiffs agreeing to sell the suit property.
4. Perusal of application filed by the petitioners for recasting of issues would disclose that scope of the suit relates to specific performance of agreement of sale dated 08.06.2006 and same is being expanded as a suit for title, that too for resolution of a dispute interse between the defendants, which is impermissible in a suit for specific performance. It is also fairly admitted by learned counsel for the petitioners that defendant No.7 has already filed a suit for partition and separate possession in O.S.Nos.469/2011 and likewise 8th defendant has also filed O.S.No.752/2014. If it were to be so, it is for the parties to establish their respective rights in the said suit.
5. Suit in question being a suit for specific performance, as to whether defendants 1 to 4 could have agreed to sell the property or whether the defendants 7 and 8 also have right in the suit property, would not be subject matter for consideration or adjudication in the suit in question i.e., O.S.No.578/2007. As such, trial court has rightly rejected the application filed by petitioners for recasting of issues by seeking framing of issues relating to marketable title of defendants 1 to 4 to sell suit schedule property in favour of plaintiff as also the right of 7th defendant’s LR’s to suit schedule property and the like.
I find no good ground to entertain this writ petition, as such same stands dismissed as devoid of merits.
SD/- JUDGE DR