Karnataka High Court
Ajithnath Suppliers Pvt Ltd vs Smt. Alyamma on 26 March, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2024:KHC:12445
WP No. 7355 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 7355 OF 2024 (GM-CPC)
BETWEEN:
AJITHNATH SUPPLIERS PVT LTD
HAVING ITS REGISTERED OFFICE
AT NO.135A, C R AVENUE
TH
4 FLOOR, ROOM NO.36, KOLKATA
WEST BENGAL-700 007
REPT BY ITS AUTHORIZED REPRESENTATIVE
MR SANTHOSH S
S/O SAMBASIVAN S
...PETITIONER
(BY SRI.C.M.RAJANEESH.,ADVOCATE)
AND:
1. SMT. ALYAMMA
S/O SRI A K JACOB
AGED ABOUT 79 YEARS
2. SRI A K JACOB
S/O LATE A V KOCHUMMEN
AGED ABOUT 77 YEARS
Digitally signed by
VANDANA S
BOTH ARE RESIDING AT
Location: High
Court of Karnataka BETHEL COTTAGE, FARM HOUSE
CONSTRUCTED IN SY NO. 33
MYADARAHALLI VILLAGE
BANGALORE NORTH TALUK
CHIKKABANAVAR POST
BENGALURU - 560 094.
3. SMT MUNIGURAMMA
D/O A PILLAPPA
AGED ABOUT MAJOR
4. SMT PATALAMMA
D/O A PILLAPPA
AGED ABOUT MAJOR
-2-
NC: 2024:KHC:12445
WP No. 7355 of 2024
5. SMT HANUMAKKA
D/O A PILLAPPA
AGED ABOUT MAJOR
THE RESPONDENT NO. 3 TO 5 ARE
R/A MYDARAHALLI VILLAGE
YESHWANTHPURA HOBLI
BANGALORE NORTH TALUK
BANGALORE-560 094.
...RESPONDENTS
(BY SRI. BIPIN HEGDE, ADVOCATE FOR R-1 & R-2)
THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF
INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDERS DATED 02/03/2024,
PASSED ON IA NO. 44/2024 PASSED BY THE XXV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (CCH-23) IN OS NO. 2495/1996 WHICH IS
PRODUCED AT ANNEXURE-A AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition by the impleading applicant in I.A.No.44 filed in O.S.No.2495/1996 on the file of XXV Additional City Civil and Sessions Judge, Bengaluru, is directed against the impugned order dated 02.03.2024 whereby the said application filed by the petitioner-impleading applicant under Order I Rule 10 of CPC seeking impleadment as additional defendant No.5, which was allowed by the trial court.
2. Perusal of the material on record would indicate that respondents 1 and 2 in the present petition instituted a suit for separate possession and other reliefs in relation to the suit -3- NC: 2024:KHC:12445 WP No. 7355 of 2024 schedule immovable properties. During the pendency of the suit, petitioner-impleading applicant filed the instant I.A.No.44 claiming independent right, title, interest and possession over the subject matter of the suit and putting forth various contentions in this regard. The said application having been opposed by the plaintiffs, the trial court rejected the application. Aggrieved by the same, impleading applicant is before this court by way of the present petition.
3. A perusal of the material on record and impugned order would indicate that the trial court has come to the correct conclusion that the petitioner, who is undisputedly not a party to the sale agreement sought to be enforced by respondents 1 and 2 against respondents 3 and 4, petitioner cannot be construed or treated as a proper or necessary party to the said suit for specific performance. Trial court also took note of the fact that one more suit, O.S.No.4718/2023 has already been filed by the petitioner against respondents 1 and 2.
4. Under these circumstances, I am of the view that the impugned order passed by the trial court does not suffer from any illegality or infirmity warranting interference of this Court in exercise -4- NC: 2024:KHC:12445 WP No. 7355 of 2024 of its powers under Article 227 of the Constitution of India. In fact, the trial court has assigned proper and cogent reasons in rejecting the application by holding as under:
" ORDERS ON I.A No.44 This application is filed at the stage of defendant side arguments.
2. The impleading applicant namely Ajithnath Suppliers Pvt. Ltd represented by its authorized representative has filed application under Order 1 Rule 10 of CPC to implead him as defendant No.5.
3. This application is supported by the affidavit of authorizing signatory of the impleading applicant.
4. In his affidavit he has stated that he is the absolute owner of the property of converted land bearing Sy. No.33 measuring to an extent of 30 guntas of land towards northern side out of 2 Acres 12 guntas including 9 guntas Karab which is the part of the suit schedule property. He had purchased the said property from his Vendor Mr. K.V. Naidu S/o K.C. Naidu for valuable Sale Consideration under the registered Sale Deed dated 22.07.2016. His Vendor had purchased the said property from his Vendor one Mr. L. Venkatesh through his GPA Holder Mr. K. Hari for valuable Sale Consideration under registered Sale Deed dated 03.05.2012.-5-
NC: 2024:KHC:12445 WP No. 7355 of 2024
5. He has further contended that the said Mr. L. Venkatesh had purchased the above said property from his Vendor one Mr. A. Pillappa, who is the defendant No.1 herein through his GPA Holder Smt. Sannamma for valuable sale consideration under registered Sale Deed dated 09.11.2006. The other family members of said Pillappa have also executed the confirmation deed in favour of his Vendor's Vendor namely Mr. L. Venkatesh, confirming the Sale Deed executed by the Pillappa through his GPA Holder.
6. He has further contended that his Vendor's Vendor L.Venkatesh got converted the above said land from agriculture to non-agriculture residential purpose by the Deputy Commissioner Bengaluru Urban District vide its order No.ALN(NY):SR:18/11-12 dated 06.06.2011 and BBMP had issued the Khatha Certificate in the name said of L. Venkatesh to an extent of 30492 square feet.
7. He has further contended that he is the absolute owner of the said property which is the part of the suit schedule property and he is in undisturbed peaceful possession and enjoyment of the same as absolute owner thereof from the date of purchase without any disturbance from anybody, whatsoever. One A.K. Jacob who is the GPA Holder of the plaintiffs herein was tried to interfere with his possession and also tried to trespass in to the property without having any right or authority of law. Hence, he has filed a suit for permanent injunction against the said A.K. Jacob in O.S.No.4718/2023 and the same is pending for -6- NC: 2024:KHC:12445 WP No. 7355 of 2024 consideration.
8. In the said suit A.K. Jacob has appeared and filed his written statement. In his written statement he has disclosed about the pendency of this suit and then only he came to know about the pendency of this suit. Since he is the absolute owner of the portion of the suit schedule property, his interest needs to be protect in this suit. Hence, he has filed this application to implead him as defendant. He is a proper and necessary party to decide the issues involved in this case. His presence is very much necessary to decide the issues involved in this case properly and effectively. If he is not impleaded, he will be put to irreparable injury and it may leads to multiplicity of proceedings. Hence, he prayed for allowing the said application.
9. Advocate for plaintiff No.2 has filed objections to the said application wherein he has contended that the application filed by the impleading applicant is not maintainable either in law or on facts and same has to be dismissed in limine.
10. He has been further contended that plaintiffs have filed this suit for Specific Performance of the contract of Agreement of Sale dated 27.09.1989 and 20.12.1991, pertaining to the suit schedule property, entered into between the plaintiffs and deceased defendant No.1 Pillappa. The said Pillappa died during the pendency of the suit and his LR's have been brought on record. As such, the impleading applicant is neither necessary nor -7- NC: 2024:KHC:12445 WP No. 7355 of 2024 proper party to decide the issues involved in the above suit.
11. He has further contended that this suit has been filed for Specific Performance of the Agreement of Sale dated 27.09.1989 and 20.12.1991 and the same has been filed on 08.07.1996. The impleading applicant is said to have allegedly purchased 30 guntas of land in Sy.No.33 of Medarahalli Village on 22.07.2016. As such, he is a lispendence purchaser, when he is the lispendence purchaser he is not necessary and proper party to determine the issues involved in this case. As admitted by the impleading applicant he has filed the suit in O.S.No.4718/2023 wherein he has suppressed the facts of pendency of other suits, pertaining to the land bearing Sy.No.33, 33/1 of Medarahalli Village, Yeshvanthapur Hobli, Bengaluru North Taluk i.e., O.S.No.3623/2023. The plaintiff's herein have filed a suit in O.S.No.3535/2021 against impleading applicant and one Mr. L. Venkatesh who is alleged predecessor in title of impleading applicant. The impleading applicant has to adjudicate his rights in the said suit, he denied the allegation made in the affidavit filed in support of application.
12. He has further contended that the impleading applicant Vendor's Vendor namely Mr. L. Venkatesh filed suit in O.S.No.3623/2023 against the impleading applicant and others for declaration of title and also challenge the GPA dated 10.06.2008 alleged to have been executed by him and Sale Deeds dated 03.05.2012 and Sale Deed dated 22.07.2016 alleged to have been executed by Vendor -8- NC: 2024:KHC:12445 WP No. 7355 of 2024 of the impleading applicant. The impleading applicant has filed suit bearing O.S.No.4718/2023 and in that suit he has deliberately suppressed these material facts. He denied the allegations that the impleading applicant is the owner in possession and enjoyment of the property measuring 30 guntas in Sy.No.33. The plaintiff No.2 is sole and absolute owner and in possession and enjoyment of the suit schedule property.
13. He has further contended that originally the land bearing Sy No.33 measuring 2 Acres 12 guntas including 9 guntas kharab situated at Medarahalli Village, Yeshwanthpura Hobli, Bengaluru North Taluk belonged to deceased defendant No.1 and the said land was granted to him in LRF No. 3357/3360/77-78 vide order dated 02.08.1979 by the Land Tribunal Bengaluru North Taluk. The Land Tribunal has issued Grant Certificate dated 30.08.1980. Subsequent to Grant of the said property the Revenue Records have been changed in the name of deceased defendant No.1. The deceased defendant No.1 executed General Power of Attorney dated 28.08.1989 in favour of one Jacob Pandicheril Mathai S/o Mr. P.M. Mathai in respect of land measuring 1 Acre situated in Medarahalli Village, Yeshwanthpura Hobli, Bengaluru North Taluk, delegating the powers to do all acts, deeds, things on his behalf including to alienate the said property which was registered in the office of the sub-registrar, Bengaluru North Taluk. The deceased defendant No.1 has executed a General Power of Attorney dated 20.12.1991 in favour of Jacob Pandicheril Mathai in respect of land bearing Sy.No.33 measuring East to West 220 feet, North to South 172 -9- NC: 2024:KHC:12445 WP No. 7355 of 2024 feet towards western side 25X255 feet (3guntas) delegating the powers to do all acts, deeds, things on his behalf and also to alienate the said property. The plaintiff No.2 has purchased the said property from deceased defendant No.1 for valuable Sale Consideration under Sale Deed dated 19.08.2005 through his GPA Holder. He got transferred all Revenue Records of the said property in his favour and the said property is in the name of plaintiff No.2. From the date of acquisition of the said property the plaintiff No.2 is in continuous peaceful possession and enjoyment of the said property without any sort of hindrance, interruption from anybody muchless from Mr. L. Venkatesh or any other person claiming under him. He is exercising all rights of ownership to the exclusion of others by fencing the said property with barbed wire fencing with stone pillers and also put up a small shed in order to avoid the trespassers entering into the schedule property.
14. The impleading applicant is neither necessary nor proper party to resolve the issues involved in the suit. The impleading applicant in collusion with the Lr's of the defendant No.1 has filed this false and frivolous application based on concocted and created documents with malafide intention to make wrongful gains and to harass the plaintiffs. The application filed by the impleading applicant in only after thought and to stall the proceedings of this suit. Among the above grounds he prayed for dismissal of the application.
15. I have heard the arguments of learned Counsels appearing for impleading applicant and
- 10 -
NC: 2024:KHC:12445 WP No. 7355 of 2024 plaintiffs.
16. In support of his case the proposed defendant has produced as many as 11 documents. Likewise, the plaintiffs have produced 21 documents
17. Having heard and perused the records the following points arises for my consideration:
1. Whether the application filed by the impleading applicant to implead him as defendant No.5 is deserves to be allowed ?
2. What order?
18. My findings to the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per the final order for
the following:
REASONS
19. Point No.1: It is the case of the impleading applicant that he has purchased 30 guntas of land towards Northern side of Sy.No.33 situated at Medarahalli Village, Yeshvanthapur Hobli, Bengaluru North Taluk under registered Sale Deed dated 22.07.2016, which is the part and parcel of the suit schedule property. He came to know about the pendency of this suit only through the written statement filed by the plaintiff herein in O.S.No.4718/2023 which is filed by him. Since he is the absolute owner in possession and enjoyment of the above said property which is the part and parcel of the suit schedule property, he is the proper and necessary party to adjudicate the matter in dispute, if he is not impleaded as defendant
- 11 -
NC: 2024:KHC:12445 WP No. 7355 of 2024 he will be put to irreparable injury and it may lead to multiplicity of proceedings. Without his presence, this Court cannot decide the issues involved in this case properly and effectively. On the other hand, the plaintiff has taken a contention that the proposed defendant is not proper and necessary party to decide the issues involved in this case as he is the lispendence purchaser. The proposed defendant has alleged to have been purchased the property in Sy.No.33 during the pendency of this suit from his Vendor. This suit is filed for Specific Performance of contract, on the basis of Agreement of Sale dated 27.09.1989 and 20.12.1991 executed by the deceased defendant No.1, in respect of suit schedule property. The document produced by the plaintiff i.e, copy of plaint in O.S.No.3623/2023 would indicates that impleading applicant Vendor's Vendor L. Venkatesh has filed the Comprehensive Suit against his General Power of Attorney Holder impleading applicant and his Vendor K. V. Naidu for relief of declaration declaring that the GPA executed by him in favour of defendant No.2 therein is not binding on him and also to declare that the Sale Deed executed by the GPA Holder of said L. Venkatesh in favour of Vendor of the impleading applicant and the Sale Deed executed by the Vendor of impleading applicant are not binding on him. When the impleading applicant Vendor's Vendor filed a suit for Cancellation of Sale Deeds executed by the Vendor of the impleading applicant, the impleading applicant has to adjudicate his title alleged to have been purchased by him in the said suit. When such being the case, impleading applicant
- 12 -
NC: 2024:KHC:12445 WP No. 7355 of 2024 cannot claim right, title and interest of property alleged to have been purchased by him till disposal of such comprehensive suit filed by his Vendor's Vendor. Under such circumstances I feel he is not proper and necessary party to adjudicate the matter in dispute, since this suit is between the plaintiffs and defendants on the basis of Agreement to sell executed by the deceased defendant No.1. According to impleading applicant he has purchased 30 guntas of land, out of 2 Acres 12 guntas including 9 guntas Karab, in Sy.No.33 of Medarahalli Village, Yeshwanthpur Hobli, Bengaluru North Taluk towards northern side of the said survey number. But, this suit is filed in respect of 1 Acre of land and 3 guntas of land towards eastern side of Sy.No.33 when that is so, it cannot be said that the property alleged to have been purchased by the impleading applicant is the part of the schedule property. Further impleading applicant has not produce any iota of document to show that the property purchased by him is part of the suit schedule property. Under the circumstances, I am of the opinion that impleading applicant is not proper and necessary party to adjudicate the matter in dispute. Without his presence this Court can adjudicate the matter properly and effectively as this lis between the plaintiffs and defendants. Further, admittedly impleading applicant has purchased 30 guntas of land in Sy. No. 33 fr om his Vendor on 22.07. 2016 dur ing the pendency of this suit. When that is so, he is lispendence purchaser, when he is the purchaser pendnt lite, he neither proper nor necessary party to resolve, the issues involved in this
- 13 -
NC: 2024:KHC:12445 WP No. 7355 of 2024 case. In view of the above discussion, I am of the opinion that the impleading applicant is not a proper and necessary party to decide the issues involved in this case. Admittedly, this suit is filed for Specific Performance of Contract against the deceased defendant No.1 on the basis of Sale Agreement executed by him in respect of suit schedule property. When t h at i s s o, t h e l i s i s o n l y bet w ee n t h e p l a i nt if f s a n d defendants, and plaintiffs have to prove the execution of Sale Agreement for which impleading applicant is not either proper and necessary party when the title of the impleading applicant in respect of the property alleged to have been purchased by him is challenged and questioned by his Vendor's vendor in O.S.No. 3623/2023, he cannot be impleaded in this suit as defendant. The transfer of title of impleading applicant under alleged Sale Deed dated: 22.07.2016, will be subject to the outcome of the said suit. In view of the above discussion, I answer this point in the Negative.
20. Point No. 2: In view of the findings given on the above said point and reasons thereon, I proceed to pass the following:
ORDER I.A.No.44 filed by the impleading applicant under Order 1 Rule 10 r/w Section 151 of CPC is hereby dismissed.
No order as to costs."
- 14 -
NC: 2024:KHC:12445 WP No. 7355 of 2024
5. Accordingly, I do not find any merit in the present petition and the same is hereby disposed off without interfering with the impugned order. It is however made clear that any judgment, decree, order, compromise, etc., entered into or passed in the said suit would not be binding upon the petitioner nor would affect his alleged right, title, interest or possession, if any, in the subject matter of the suit and nor would the same affect the rights and contentions of the petitioner in O.S.No.4718/2023 filed by him.
All rival contentions on all aspects of the matter in O.S.No.2495/1996 and 4733/2012 are kept open and no opinion is expressed on the same.
SD/-
JUDGE AV List No.: 1 Sl No.: 31