IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 11827 OF 2017 (GM-CPC) BETWEEN:
SRI NAGARAJU S/O LATE PUTTAPPA @ PUTTAIAH, AGED ABOUT 33 YEARS, NO.311, SIDDARTHA NAGARA, MADIVALA, VINAYAKA TEMPLE STREET, HOSUR ROAD, BANGALORE-560068 … PETITIONER (BY SRI. E THIRTHAPPA, ADVOCATE) AND:
1. SRI KEMPARANGAIAH S/O PUTTABASAVAIAH, AGED ABOUT 75 YEARS, SENIOR CITIZEN NOT CLAIMED, 2. SRI. SIDDABASAVAIAH S/O PUTTABASAVAIAH, AGED ABOUT 73 YEARS, SENIOR CITIZEN NOT CLAIMED, 3. SRI. KEMPAGANGAIAH S/O PUTTABASAVAIAH, AGED ABOUT 70 YEARS, SENIOR CITIZEN NOT CLAIMED, 4. SRI. BASAVARAJU P S/O PUTTABASAVAIAH, AGED ABOUT 65 YEARS, SENIOR CITIZEN NOT CLAIMED, 5. SRI. KEMPAIAH P S/O PUTTABASAVAIAH, AGED ABOUT 60 YEARS, SENIOR CITIZEN NOT CLAIMED, 6. SMT. RANGAMMA SINCE DEAD BY LRS, 6A. SRI. MUNIRAJU S/OLATE SIDDAGANGAIAH, AGED ABOUT 65 YEARS, R/O KEGALA VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK BENGALURU RURAL DISTRICT SENIOR CITIZEN NOT CLAIMED 6B. SMT. KEMPAMMA W/O LATE KEMPAIAH AGED ABOUT 63 YEARS, R/O NARESAPURA, MATTAHALLI POST, BANGALORE NORTH TALUK BENGALURU RURAL DISTRICT SENIOR CITIZEN NOT CLAIMED 6C. SRI. KEMPARAMAIAH S/O SIDDAGANGAIAH AGED ABOUT 61 YEARS, R/O RAJIVAGANDHI NAGARA, NEAR GANESH TEMPLE, MALEKOTE POST, TUMKUR DISTRICT SENIOR CITIZEN NOT CLAIMED 6D. SMT. BASAMMA W/O VENKATAPPA AGED ABOUT 60 YEARS, R/O GALAHANUMANTHANAPALYA, SHETTYIGE HALLI, BEGUR HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT SENIOR CITIZEN NOT CLAIMED 7. SRI. CHANNAPPA DEAD BY HIS LRS, 7A. SRI. GANGAIAH, AGED ABOUT 63 YEARS, SENIOR CITIZEN NOT CLAIMED, 7B. SRI. HUCHAIAH AGED ABOUT 55 YEARS, RESPONDENTS NO.1 TO 5 & 7(A)(B) ARE RESIDING AT KENGAL VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT.
8. SRI.P.GANGADHARAIAH S/O LATE PUTTAPPA, AGED ABOUT 36 YEARS, C/O DAKSHAYANAMMA, ARCHAK OF BASAVESHWARA TEMPLE, MAIN ROAD, BANGALORE – 560 025.
9. SRI. SHANKARAPPA S/O LATE SIDDAIAH, AGED ABOUT 60 YEARS, SENIOR CITIZEN NOT CLAIMED, 10. SRI. RAJANNA S/O LATE SIDDAIAH, AGED ABOUT 58 YEARS, 11. SRI. SHIVANNA S/O LATE SIDDAIAH, AGED ABOUT 56 YEARS, 12. SRI. BASAVARAJU S/O LATE SIDDAIAH, AGED ABOUT 54 YEARS, RESPONDENTS NO.9 TO 12 ARE R/O KENGAL VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT – 562 123.
(BY SMT. SREEVIDYA, ADVOCATE FOR … RESPONDENTS SRI. T N VISWANATHA, ADVOCATE FOR R1 TO R5; R6(A), R7(A) & (B), & R9 TO R12, R6(B)(C)(D) & R8 ARE SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 08.02.2017 PASSED BY THE LEARNED CIVIL JUDGE NELAMANGALA (SR.DN) ON I.A.NO.10 IN O.S.NO.504/2009 VIDE ANNEXURE-E AND ALLOW THE SAID APPLICATION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the plaintiff in a declaration & possession suit in O.S.No.504/2009 is invoking the writ jurisdiction of this Court for assailing the order dated 08.02.2017 a copy whereof is at Annexure-E, whereby the learned senior Civil Judge, Nelamangala, having rejected his application in IA No.10 filed under order I Rule 10 of CPC, 1908, refused to implead the proposed respondents as defendants to the said suit. After service of notice, the respondents having entered appearance through their counsel, resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the writ petition papers, this court is of a considered opinion that no case is made out for granting indulgence in the matter inasmuch as, subject alienation which is sought to be set at naught by the suit is of 26.05.1965 and admittedly, the petitioner being the plaintiff is not in the possession of the property; it is a settled principle of Hindu Mithakshara that a Hindu holds the ancestral property in his hands as his separate property till after he begets children and therefore, the proposed respondents admittedly having taken birth long after the subject alienation they cannot be said to be neither necessary nor proper parties to the adjudication of the suit.
In the above circumstances, regardless of the reasoning of the learned trial judge, the writ petition is dismissed.
No costs.
Sd/- JUDGE Bsv