IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.41560/2015(GM-CPC) BETWEEN:
SRI RAMANNA, S/O LATE GINI PALAIAH AGED ABOUT 56 YEARS R/O BHOGANAHALLI VILLAGE THALAK HOBLI, CHALLAKERE TALUK-577522. CHITRAUDRGA DISTRICT.
... PETITIONER (BY SRI V. B. SIDDARAMAIAH, ADVOCATE) AND:
1. SRI ESHWARAPPA S/O LATE GOLLARAHATTI PALAIAH AGED ABOUT 66 YEARS R/O BHOGANAHALLI VILLAGE, THALAKU HOBLI, CHALLAKERE TALUK-577522. CHITRADURGA DISTRICT.
2. SMT. PALAMMA.
W/O GOLLARAHATTI PALAIAH AGED ABOUT 81 YEARS R/O BHOGANAHALLI VILLAGE THALAKU HOBLI CHALLAKERE TALUK CHITRADURGA DISTRICT 3. SANNA PALAIAH S/O GOLLARAHATTI PALAIAH AGED ABOUT 61 YEARS 4. MALLAIAH S/O GOLLARAHATTI PALAIAH AGED ABOUT 57 YEARS 5. RANGANNA S/O GOLLARAHATTI PALAIAH AGED ABOUT 55 YEARS 6. SURAIAH S/O GOLLARAHATTI PALAIAH AGED ABOUT 57 YEARS 7. GADRI PALAIAH S/O GOLLARAHATTI PALAIAH AGED ABOUT 49 YEARS RESPONDENTS No.1 TO 7 ARE THE R/O BHOGANAHALLI VILLAGE, THALAKU HOBLI, CHALLAKERE TALUK CHITRADURGA DISTRICT-577522 8. SMT. MALLAMMA D/O BHOS MALLAIAH W/O BORAIAH AGED ABOUT 71 YEARS R/O BIDRIKERE JAGALUR TALUK-577528 CHITRADURGA DIST 9. SMT. OBAMMA D/O BHOS MALLAIAH W/O CHITRANAYAKA AGED ABOUT 69 YEARS R/O CHITRANAYAKANAHALLI-577501. CHITRADURGA TALUK AND DISTRICT.
10. SMT PALAMMA D/O BHOS MALLAIAH W/O PALAIAH AGED ABOUT 59 YEARS R/O PILLEKARANAHALLI-577501 CHITRADURGA TALUK AND DISTRICT.
11. DIVAKARAPPA S/O LATE HANUMANTHARAYAPPA AGED ABOUT 46 YEARS R/O GOWARASAMUDRA KAVALU-577522 CHALLAKERE TALUK CHITRADURGA DISTRICT 12. RAJANNA S/O HANUMANTHARAYAPPA AGED ABOUT 44 YEARS R/O GOWARASAMUDRA KAVALU-577522 CHELLAKERE TALUK CHITRADURGA DISTRICT.
13. SANNA PALAIAH S/O LATE HANUMANTHARAYAPPA AGED ABOUT 39 YEARS R/O GOWARASAMUDRA KAVALU-577522 CHELLAKERE TALUK CHITRADURGA DISTRICT.
14. SMT GOORAMMA W/O GILIPALAIAH AGED ABOUT 81 YEARS 15. BORAIAH S/O KOSHA MALLAIAH AGED ABOUT 66 YEARS 16. PALAIAH S/O MEKE MALLAIAH AGED ABOUT 59 YEARS 17. MALLAIAH S/O LATE MEKE MALLAIAH AGED ABOUT 47 YEARS 18. SMT LAKSHMIDEVI D/O MEKE MALLAIAH W/O PALAIAH AGED ABOUT 41 YEARS RESPONDENTS No.14 TO 18 ARE R/O BHOGANAHALLI, CHELLAKERE TALUK-577522 CHITRADURGA DISTRICT.
19. BORAIAH S/O LATE PALAIAH AGED ABOUT 37 YEARS 20. SANNA PALAIAH S/O LATE PALAIAH AGED ABOUT 35 YEARS 21. SMT BHEEMAKKA W/O LATE MALLAIAH AGED ABOUT 51 YEARS 22. G POLAREDDY S/O SANNA THIPPAREDDY AGED ABOUT 81 YEARS 23. G CHENNAMALLAMMA W/O LATE RAMAREDDY AGED ABOUT 64 YEARS 24. G YELLAPPA REDDY S/O LATE G RUDRAPPA AGED ABOUT 59 YEARS RESPONDENTS No.19 TO 24 ARE R/O CHERVUDODLDY GOLLAPALLI, RAYADURGA TALUK-515865 ANANTHAPURA DISTRICT SEEMANDRA STATE.
25. NATARAJ S/O KRISHNAPPA AGED ABOUT 52 YEARS R/O J P NAGAR, SIRA TOWN TUMKUR DIST-572137.
26. M/S ASURE POWER INDIA PVT. LTD, NO.8, ESC, MADANGIR, PUSHP VIHAR NEW DELHI-110062.
REPRESENTED BY ITS AUTHORIZED SIGNATORY SRI MAHESH SHETTY, S/O N BHASKARA SHETTY AGED ABOUT 33 YEARS.
... RESPONDENTS (VIDE ORDER DATED 4.7.2016 NOTICE TO R25 IS HELD SUFFICIENT; R26 IS SERVED BUT UNREPRESENTED) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 19.8.2015 ON I.A. NO. II FILED UNDER ORDER 1 RULE 10[2] R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE IN O.S. NO. 56/2014 BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, CHELLAKERE AND CONSEQUENTLY ALLOW THE I.A.II.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner – plaintiff filed the present writ petition against the order dated 19.8.2015 on I.A. No.2 made in O.S. No.56/2014, on the file of the Senior Civil Judge and JMFC, Challakere, dismissing the application filed by the plaintiff under Order 1 Rule 10(2) r/w Section 151 of the Code of Civil Procedure.
2. The plaintiff filed the suit for partition and separate possession in respect of the suit schedule properties. During the pendency of the suit, the plaintiff filed an application under Order 1 Rule 10(2) r/w Section 151 of the Code of Civil Procedure for impleading the proposed defendant Nos.25 and 26. In the affidavit filed in support of the application, it is stated that defendant Nos.22 to 24 and others have executed registered sale agreement dated 30.8.2014 in favour of the proposed defendant No.25 and in turn the proposed defendant No.25 executed the registered sale agreement dated 7.11.2014 in favour of the proposed defendant No.26. Thus, the proposed defendant Nos.25 and 26 are the purchasers of the properties under the registered sale agreements dated 30.8.2014 and 7.11.2014 and hence they are necessary and proper parties to the suit. Therefore, the plaintiff sought to allow the application. The defendants have not filed objections to the application for impleading. The trial Court considering the application, by the impugned order dated 19.8.2015 dismissed the application. Hence the present writ petition is filed.
3. I have heard the learned counsel for the petitioner.
4. Sri V.B. Siddaramaiah, learned counsel for the petitioner - plaintiff contended that the impugned order passed by the trial Court dismissing the application filed by the petitioner – plaintiff to implead the registered agreement holders, is erroneous and contrary to the material on record. He further contended that in order to avoid multiplicity of proceedings, the trial Court ought to have allowed the application. Therefore he sought to quash the impugned order by allowing the writ petition.
5. Having heard the learned counsel for the petitioner, it is an undisputed fact that the plaintiff filed the suit for partition and separate possession in respect of the suit schedule properties contending that the suit schedule properties are the joint family properties of the plaintiff and defendant Nos.1 to 21 and he is entitled to one-third share. During the pendency of the suit, the plaintiff filed an application under Order 1 Rule 10(2) r/w Section 151 of the Code of Civil Procedure for impleading the proposed defendant Nos.25 and 26. In the affidavit filed in support of the application, it is stated that defendant Nos.22 to 24 and others have executed registered sale agreement dated 30.8.2014 in favour of the proposed defendant No.25 and in turn the proposed defendant No.25 executed the registered sale agreement dated 7.11.2014 in favour of the proposed defendant No.26. Therefore the proposed defendant Nos.25 and 26 are necessary and proper parties to the suit. The defendants have not filed objections to the application for impleading.
6. The trial Court considering the application and the objections by the impugned order, has recorded a finding that the suit is for partition and separate possession and to decide whether the suit property is the joint family property of the plaintiff and defendant Nos.1 to 21 and whether the plaintiff has got legitimate share in the suit property, the presence of the proposed defendant Nos.25 and 26 is neither necessary nor proper. In their absence, the question of controversy between the plaintiff and defendant Nos.1 to 21 can be adjudicated. Though defendant Nos.22, 23 and 24 have executed agreement of sale in favour of the proposed defendant No.25 and in turn the proposed defendant No.25 executed the registered agreement of sale in favour of the proposed defendant No.26, no loss or injustice would be caused to the plaintiff in view of Section 52 of the Transfer of Property Act. In the absence of a proposed defendant No.25 and 26, the dispute between the plaintiff and defendant Nos.1 to 21 can be adjudicated effectively and therefore the presence of proposed defendant Nos.25 and 26 is neither necessary nor proper. Accordingly, dismissed the application.
7. The reasons assigned and the conclusion arrived at by the trial Court are just and proper. Further, the defendants have not filed any application for impleading and it is only the plaintiff who has filed application for impleading on the basis of the two alleged registered agreements of sale. In the circumstances, the trial Court rightly dismissed the application for impleading by the impugned order. The petitioner has not made out any ground to interfere with the impugned order in exercise of power under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE Gss/-