Research › Search › Judgment

Karnataka High Court · body

2025 DIGILAW 1726 (KAR)

A. R. Shivaram v. Anirudh V.

2025-12-09

PRADEEP SINGH YERUR

body2025
ORDER : Pradeep Singh Yerur, J. Heard learned counsel for petitioners and learned counsel for respondents. 2. Parties are referred to as per their status before the trial Court. 3. This petition is filed by the petitioners, who are proposed defendant Nos.8, 9 and 10 before the trial Court seeking to implead themselves as defendants in a suit for partition filed by respondent Nos.1 and 2, who are the plaintiffs before the trial Court. 4. It is stated that the impleading applicants have filed an application under Order I Rule 10 of CPC to implead themselves as defendant Nos.8 to 10 in O.S.1990/2018. The affidavit was also annexed to the said application, wherein at para-6, it is stated as under: "6. I submit that we have joined all sites together measuring 7200 sq ft and we have put construction in 26000 sq.ft with ground plus 3 floors and a temporary structure for canteen in 4 th floor by taking necessary permissions from competent authorities and the joint khata is accepted and taxes are accessed to the building and Applicants are in peaceful possession and enjoyment of the property. The Copy of photos are produced herewith for the kind perusal of this Hon'ble court." 5. Accordingly, the impleading applicants sought to implead themselves, as they have a right over the portion of 7200 square feet of the properties in the schedule mentioned in the partition suit. They also contended that in the event of any decree that would be passed in favour of the plaintiffs or the defendants, their rights would be affected and in order to safeguard their right over the properties to an extent of 7200 square feet, they filed an application to implead themselves as defendant Nos.8, 9 and 10 in the suit. 6. The plaintiffs have filed a memo to the said application, which reads as under : "The plaintiffs submit that, they were given to understand an area of 4800 Square feet has been sold by the first defendant who was exercising all the acts of ownership in respect of plaint schedule item No.6 property, despite the property being purchased in the name of the fourth defendant in the above case. Since the impelading applicants are claiming title to an extent of 7200 Square feet they may be proper parties to the above suit and their participation may ensure fair and complete adjudication of the matter in dispute. Wherefore the plaintiffs submit that they have no objection to allow I.A.No.54. This Hon'ble court may be pleased to record the same in the interest of justice and equity." 7. In effect, the plaintiffs do not have any objection to the application filed by the impleading applicants being allowed. The other defendants in the original suit have also filed their objections to the said application, stating that the impleading applicants are not proper and necessary parties to the suit for partition, as they have their own independent right to agitate upon the right of the vendor of the applicants. Therefore, they sought dismissal of the said application. 8. After hearing the learned counsels for parties, the trial Court has come to the conclusion that the impleading applicants are strangers and they are not proper and necessary parties to the suit. It has also come to the conclusion that the plaintiffs were not aware of the actual extent of the properties sold in favour of the impleading applicants i.e., 7200 square feet and that is why they mentioned in the plaint the exclusion of 4800 square feet of a complex, namely Balaji Complex and they came to know only when the applicants filed the impleading application along with the registered Sale Deed that the properties that was sold by defendant No.4 to the impleading applicants measuring to an extent of 7200 square feet. 9. It is stated that an opportunity was given to the plaintiffs to carry-out the amendment in the plaint in respect of item No.6 of the suit schedule properties and even if the plaintiffs fail to carry-out the amendment, the trial Court can restrict the claim of the parties while giving judgment based on the oral and documentary evidence. It is stated that learned counsel for plaintiffs have filed a memo stating that they have no objection to allow I.A.No.54, which indicates that according to them, the actual extent of the measurement of the complex is 7200 square feet. It is also stated that the defendants in their objection not disputed regarding measurement of the properties sold by defendant No.4 in favour of the proposed defendants. It is also stated that the defendants in their objection not disputed regarding measurement of the properties sold by defendant No.4 in favour of the proposed defendants. On this basis, the trial Court has come to the conclusion that this aspect could be decided later on and there was no necessity for the applicants to be made parties in the suit for partition, as the stage of the suit now is for arguments, which would further delay the proceedings. 10. It is the vehement contention of learned counsel for impleading applicants that the impugned order passed by the trial Court is perverse, arbitrary and illegal, as the plaintiffs have not left out the entire extent of 7200 square feet in the schedule to the plaint, whereas they only excluded a complex measuring 4800 square feet, namely Balaji Complex in item No.6 of the schedule to the plaint. Therefore, there is some ambiguity with regard to the measurement of the complex, which is excluded in item No.6 and is now claimed by the impleading applicants to be 7200 square feet, having purchased the same by virtue of a registered Sale Deed from defendant No.4. 11. It is further contended by learned counsel for impleading applicants that they would be proper and necessary parties in view of the fact that 2,400 square feet of the properties in item No.6 has been deliberately left out and even if that Balaji complex as stated in item No.6 is excluded from the decree, that would be passed by the trial Court, the impleading applicants will be deprived of an extent of 2,400 square feet, which is legitimately their right over the properties, having purchased it by way of a registered Sale Deed from defendant No.4. Therefore, they would be proper and necessary parties to the suit proceedings. Hence, they contended that the impugned order is liable to be set aside and the applicants be permitted to be brought on record. 12. Learned counsel for petitioners-proposed defendant Nos.8 to 10 has relied upon the judgment of the Hon'ble Apex Court in the case of Yogesh Goyanka v/s Govind and Others reported in (2024) 7 Supreme Court Cases 524 , wherein at paras-20 and 21, it is held as under: "20. In the particular facts and circumstances of this case, Mr Sundaram has been able to satisfy this Court on the possibility of collusion between the respondents. In the particular facts and circumstances of this case, Mr Sundaram has been able to satisfy this Court on the possibility of collusion between the respondents. It is a fact that the plaintiffs and defendants are relatives. More importantly, plaintiffs approached the court in the underlying suit after a substantial delay of 11 years whereas admittedly, the revenue records were mutated to reflect the name of Respondent 21 since 2007. It is also curious that the claim of non-payment of consideration by the appellant was made for the first time before this Court. 21. On the other hand, the appellant has a registered sale deed in his favour and has therefore seemingly acquired an interest in the subject land. Whether or not the consideration was paid, is a disputed question of fact that shall be determined by the trial court. Therefore, in the considered opinion of this Court, considering the totality of the circumstances in this case, including the fact that the trial has not progressed significantly, the appellant herein, in the interest of justice, is entitled to impleadment in the underlying suit in order to protect his interests, if any, in the subject land." 13. Per contra, learned counsel for plaintiffs contended that they agreed to allow the application filed by the impleading applicants, but they are not willing to amend the suit schedule in respect of item No.6 at the time of filing the plaint, an extent of 4800 square feet was sold by defendant No.4 to the applicants and they were kept in the dark with regard to the remaining extent of 2,400 square feet. Therefore, the plaintiffs would not be making any amendment to the plaint, as they are the masters of their case and they are dominus litus. They reiterate that they would not have any objection to the applicants coming on record. 14. Learned counsel for defendant No.4 vehemently contended that the application has been filed at the belated stage deliberately with an intention to protract the proceedings and that the applicants have colluded with the plaintiffs in order to drag on the proceedings with mala fide intention and have filed this application at the fag end of the trial, i.e., during the stage of cross-examination of the plaintiffs. Therefore, he contends that, in a suit for partition, there may not be a requirement for the strangers or others to be made as parties, as any right that would vest or be drawn by way of a decree would accrue to the benefit of the subsequent purchaser from one of the family members, if he is so entitled. Therefore, he seeks dismissal of this application and sustains the impugned order. 15. Learned counsel for defendant No.4 has relied upon the judgment of the Hon'ble Apex Court in the case of Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd. & Ors. reported in AIR 2010 SUPREME COURT 3109 and the judgment of the Co-ordinate Bench of this Court in the case of Sri. Bomman Vijaykumar and Others v/s Vijayalaxmi @ Kamala and Others in W.P.Nos.82637-82650/2012 in support of his case. 16. Learned counsel for defendant No.5 sustains the impugned order passed by the trial Court and he is in agreement with the contentions put forth by defendant No.4 and contended that this application was filed with a deliberate intention to prolong and protract the proceedings in collusion with the plaintiffs and that the same was filed at the fag end of the trial and the applicants, who are claiming to be purchasers of 7200 square feet, would not be proper or necessary parties. In case, any share is given to any of the defendants, that same share would benefit the purchasers from defendant No. 4, as they would get the share of their vendor and they would not have any independent right. Therefore, he seeks dismissal of this petition, as the impleading applicants are strangers and they are not proper and necessary parties in a suit for partition. 17. I have heard the learned counsel for the impleading applicants, learned counsel for plaintiffs, learned counsels for defendants. 18. It is not in dispute that the suit is filed for partition by the plaintiffs against the defendants. It is also not in dispute that there are 37 items of properties in the schedule to the partition. 19. Item No.6 of the schedule in plaint reads as under: "6. 18. It is not in dispute that the suit is filed for partition by the plaintiffs against the defendants. It is also not in dispute that there are 37 items of properties in the schedule to the partition. 19. Item No.6 of the schedule in plaint reads as under: "6. All the piece and parcel of the property situate at Bommanahalli, Converted land with Industrial sheds, Bangalore measuring to an extent of 1 acre 20 guntas excluding 1 Complex situated in an area measuring about 4800 square feet (wherein a private person has built a complex by name 'Balaji Complex' after purchasing the said extent from the joint family) and bound on the Direction Description East Private property West Road leading to Grave yard North Grave yard South Private property 20. It is apparently clear that as per the item No.6 of the schedule, the plaintiffs have excluded one complex measuring to an extent of 4800 square feet, wherein a private person has built a complex by name 'Balaji Complex' after purchasing the said extent from the joint family. This extent of 4800 square feet out of 1 acre 20 guntas is excluded in the schedule. 21. But the fact remains that the impleading applicants are claiming to have purchased to an extent of 7200 square feet and have built the complex, namely Balaji Complex and the said properties purchased from defendant No.4 quite prior to the filing of the suit. It is apparently seen that defendant No.4 while filing his written statement has not mentioned anything about the sale of the properties to an extent of 7200 square feet. Obviously, no issues are framed with regard to 7200 square feet, as that was not the subject matter and nobody revealed the same before the trial Court, which is now brought to the notice of this Court by the impleading applicants, having purchased the same from defendant No.4. 22. Therefore, generally, in a suit for partition, the third party-subsequent purchaser would get a share of his vendor, who would be a family member in the suit for partition. But in the present suit, it is seen that the plaintiffs have mentioned the measurement to an extent of 4800 square feet, which excluded in item No.6 of the suit schedule properties. But in the present suit, it is seen that the plaintiffs have mentioned the measurement to an extent of 4800 square feet, which excluded in item No.6 of the suit schedule properties. The impleading applicants have filed an application along with the registered Sale Deed to bring to the notice of the Court that they have purchased 7200 square feet and they have constructed a complex, namely Balaji Complex, out of 1 acre and 20 guntas in item No.6. Therefore, they will be entitled to an extent of 7200 square feet, as they are absolute owners of the said extent of properties. 23. I am in agreement with learned counsel for the impleading applicants that when the rights of the applicants are involved and any decree that would be passed by the trial Court would affect the rights of parties who are not impleaded in the suit and whose properties are the subject matter of the proceedings, they would be proper parties to the suit proceedings. 24. In the present case, if the plaintiffs had agreed that they would leave out 7200 square feet from item No.6 instead of 4800 square feet, then that amount of land purchased by the impleading applicants could have been excluded and the suit could have proceeded further. The plaintiffs are not agreeing to that, except defendant No.4, who has not come before the Court revealing the fact of the sale of 7200 square feet of land to the impleading applicants. Therefore, it would be in the interest of justice and also to protect the rights of the impleading applicants to an extent of 7200 square feet that they are impleaded as defendant Nos.8 to 10 in the suit, merely because the suit is at the stage of cross-examination of PW-1, pursuant to evidence of the defendants, would not absolve or exclude the right vested with the impleading applicants to come on record and defend their properties to an extent of 7200 square feet. However, the trial Court could be directed to do is to expedite the matter by providing an opportunity to the applicants. 25. Therefore, the judgments of the Hon'ble Apex Court and the Co-ordinate Bench of this Court relied upon by the learned counsel for defendant No.4 may not be of much relevance. However, the trial Court could be directed to do is to expedite the matter by providing an opportunity to the applicants. 25. Therefore, the judgments of the Hon'ble Apex Court and the Co-ordinate Bench of this Court relied upon by the learned counsel for defendant No.4 may not be of much relevance. In view of the judgment of the Hon'ble Apex Court in the case of Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd. & Ors. stated supra, it is also a fundamental rule that when an application is filed under Order I Rule 10 of CPC, the two basic essential requirements is that - who are the necessary parties and proper parties to be impleaded in the suit proceedings and even if a person is not a necessary party, if it is shown that he is a proper party, he shall be made as a party to the suit proceedings so that his rights are adjudicated in accordance with law. 26. Accordingly, I pass the following: ORDER i. This petition is allowed ii. The impugned order dated 16.09.2025 passed on I.A.No.54 in O.S.No.1990/2018 by LV Additional City Civil and Sessions Judge, Bengaluru, is hereby set-aside. Consequently, I.A.No.54 is allowed; iii. The impleading applicants, namely the petitioners herein, are permitted to be brought on record as defendant Nos.8 to 10; iv. The trial Court shall fix a timeline for defendant Nos.8 to 10 to file their statement, if any and also fix a timeline for framing of issues and leading evidence, and proceed further in the matter in an expeditious manner. Ordered accordingly.