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2017 DIGILAW 577 (KAR)

Muniyamma v. Krishnappa N.

2017-03-10

B.VEERAPPA

body2017
ORDER : B. Veerappa, J. The decree-holder filed the present writ petition against the order dated 11.09.2013 allowing I.A. No.10 filed by the third respondent/proposed impleading applicant under Order I, Rule 10(2) r/w Section 151 of the Code of Civil Procedure. 2. It is the case of the petitioner that she filed a suit in O.S. No.946/1990 for partition and separate possession of suit schedule property contending that plaintiff herself and defendants are the members of joint family and the properties are joint family properties. After contest, suit was decreed on 31.01.2003. Aggrieved by the said judgment and decree, respondents 1 and 2 filed R.A.No.84/2003 before the Civil Judge, Senior Division, Bengaluru, which came to be dismissed on 21.07.2006. The respondents 1 and 2 also filed RSA No.2531/2006 before this Court. After hearing with the parties, the Regular Second Appeal came to be dismissed on 09.08.2007 confirming the judgment and decree passed by the Courts below. Thereafter, the petitioner/decree-holder filed FDP No.3/2007 to implement the decree made in O.S. No.946/1990. During pendency of the said final decree proceedings, the third respondent/proposed impleading applicant filed an application under Order I, Rule 10(2) of the Code of Civil Procedure to implead him as third respondent contending that he has purchased 1 acre 11 guntas of land from the first respondent/Krishnappa, son of Gundamma under registered sale deed dated 29.12.1986. The plaintiff/petitioner, suppressing the fact of alienation made by his vendor, has filed the suit in the year 1990 and obtained decree behind his back without arraying him as a party to the said suit. He came to know about the decree only when the petitioner filed R.A.(S) 232/2007-08 before the Assistant Commissioner which was dismissed and further contended that the plaintiff tried to interfere with his possession and enjoyment of the property and, therefore, he was constrained to file O.S. No.1205/2012 which is pending adjudication before the Prl. Judge, Junior Division, Bengaluru Rural District, Bengaluru. It was further contended that the plaintiff, based on the appointment of Commissioner is trying to mark impleading applicant's property by fixing the boundaries without having any kind of preliminary decree over his property and also not making him as a party to the proceedings. Therefore, he is a proper and necessary party to the proceeding since he is in possession and enjoyment of the property bearing Sy. Therefore, he is a proper and necessary party to the proceeding since he is in possession and enjoyment of the property bearing Sy. No. 66, situated at K. Choodhalli village, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru, measuring 1 acre 11 guntas. Therefore, he sought to allow the application. 3. The decree holder filed objection to the application contending that the proposed impleading applicant is not a necessary and proper party to the final decree proceedings. 4. After hearing with the parties, the Trial Court by the impugned order dated 11.09.2013 allowed the application filed by the impleading applicant. Hence the present writ petition is filed. 5. I have heard the learned counsel for the parties to the lis. 6. Sri. M. Prakash, learned counsel appearing on behalf of N. R. Naik and Associates, for the petitioner contended that the impleading application filed by the third respondent is not maintainable and same is liable to be dismissed. The Trial Court has failed to notice that the third respondent was a party to the proceeding before the revenue authorities and he was having knowledge about the proceedings pending before this Court and has not made any application to participate in the original suit and, therefore, he is not necessary and proper party to the final decree proceedings. He further contended that the impleading application filed by the third respondent at this stage is only to drag the proceedings. Since he already filed suit, it is for him to establish his right in a separate suit. Therefore, the application is not maintainable. 7. The learned counsel for the respondents sought to justify the impugned order. 8. It is undisputed fact that the proposed impleading applicant filed an application for impleading mainly on the ground that he has purchased agricultural land measuring 1 acre 11 guntas bearing Sy. No. 66, situated at K. Choodhalli, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru, from Krishnappa, son of Gundamma, under a registered sale deed dated 29.12.1986 and he has been put in possession and enjoyment of the same. The petitioner, suppressing the fact of alienation made by his vendor who is also member of joint family, filed suit for partition in O.S. No.946/1990 and obtained a decree without arraigning the third respondent herein as a party. The petitioner, suppressing the fact of alienation made by his vendor who is also member of joint family, filed suit for partition in O.S. No.946/1990 and obtained a decree without arraigning the third respondent herein as a party. He came to know about the suit only in the year 2012 and immediately he filed a suit in O.S. No.1205/2012 for permanent injunction. He further submits that in the final decree proceedings, based on appointment of Commissioner the petitioner is trying to mark the property fixing the boundaries without having any kind of preliminary decree over his property. Though the said application was resisted by filing objection, the final decree Court allowed the said application and recorded a finding that the plaintiff was aware of the fact that the alienation made by the respondent to the proposed impleading applicant and any decree passed is binding on the impleading applicant in respect of the property purchased under registered document. 9. The Trial Court was of the opinion that since he is claiming right under registered sale deed dated 29.12.1986 over property measuring 1 acre 11 guntas bearing Sy. No. 66, situated at K. Choodhalli village, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru, the proposed applicant is necessary and proper party in final decree proceeding. If an opportunity is given to proposed applicant to contest the petition, no hardship will be caused to the petitioner. To avoid multiplicity of proceeding between the parties, third respondent is necessary and property party. Therefore, the application was allowed. 10. The material on record clearly indicates that the proposed impleading applicant has purchased the property measuring 1 acre 11 guntas in Sy. No. 66 from the first respondent. If any proceeding initiated in his absence would definitely affect his rights in respect of immovable property purchased under registered sale deed. Therefore, he is a necessary party. No prejudice will be caused to the decree-holder to implement the decree and ultimately in final decree proceeding, the purchaser is entitled to share of his vendor. 11. The petitioner has not made out any ground as to how the petitioner would be prejudiced if the proposed impleading applicant who purchased the property from the first respondent who is also member of joint family, comes on record in the final decree proceedings. In the absence of the same, the Trial Court is justified in passing the impugned order. The petitioner has not made out any ground as to how the petitioner would be prejudiced if the proposed impleading applicant who purchased the property from the first respondent who is also member of joint family, comes on record in the final decree proceedings. In the absence of the same, the Trial Court is justified in passing 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, writ petition is dismissed.