Karnataka High Court
Smt Rachana Doshi vs Smt Tahirabi Since Dead By Lrs Smt ... on 17 November, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.6675 OF 2022(GM-CPC)
BETWEEN:
1. SMT RACHANA DOSHI
D/O MAHENDRA KUMAR DOSHI
AGED ABOUT 35 YEARS
REP BY GPA HOLDER SRI ANKUSH DOSHI
S/O MAHENDRA KUMAR DOSHI
AGED ABOUT 22 YEARS
R/AT NO 488, 3RD STAGE 4TH BLOCK
8TH MAIN ROAD, 1ST F CROSS
BASAVESHWARANAGAR, BANGALORE - 560079
2. SMT VIJAYA RAMAKRISHNA
W/O LATE SRI S RAMAKRISHNA
AGED ABOUT 60 YEARS
R/AT NO 99, SBM COLONY, ANAND NAGAR
BANGALORE - 560024
3. SARVESH K B
S/O KOTRESHAPPA
AGED ABOUT 42 YEARS
R/AT NO 197, 16TH CROSS, TELECOM LAYOUT
SRIRAMPURA, JAKKUR POST
BANGALORE NORTH, BANGALORE - 560064
4. B C CHANDRASHEKAR
S/O B B CHENNAPPA
AGED ABOUT 64 YEARS
R/AT NO 81, 1ST CROSS,
2
MUNISWARA BLOCK, RAJAMAHAL GUTTAHALLI
BANGALORE - 560003
5. SRI M R SRINIVASA RAO
S/O LATE M RAMARAO
AGED ABOUT 83 YEARS
R/AT NO 1240, GROUND FLOOR
E BLOCK, 2ND STAGE
VANI SCHOOL ROAD, RAJAJINAGAR
BANGALORE - 560010
6. SRI SYED ABDUL AZEEZ
S/O LATE HAJI ABDUL SUBAN
AGED ABOUT 58 YEARS
R/AT NO 51/7, SRK GARDEN
NEAR STROKE MOTORS, 3RD CROSS
T BLOCK, JAYANAGAR, BANGALORE - 560041
7. SRI D SRINIVASAN
S/O LATE M P DESIKAN
AGED ABOUT 74 YEARS
8. SMT GEETHA SRINIVASAN
W/O D SRINIVASAN
AGED ABOUT 69 YEARS
BOTH PETITIONER NO.7 & 8 ARE
R/AT NO 814, 5TH CROSS, 4TH BLOCK
KORAMANGALA, BENGALURU - 560034
9. SRI V VENKATARAMU
S/O SRI VENKATESH
AGED ABOUT 42 YEARS
R/AT NO U16, 1ST CROSS, MARUTHI EXTENSION
GUTTAHALLI, BANGALORE - 560003
10. SRI B R RAMAKRISHNA
S/O SRI BIMALINGAPPA
3
AGED ABOUT 39 YEARS
R/AT NO 20, 2ND MAIN
CHAMUNDESHWARI LAYOUT, VIDYARANYAPURA
BANGALORE - 560097
11. SMT I PREMA
W/O T K INDIRAKUMAR
AGED ABOUT 78 YEARS
R/AT NO 272, KEB LAYOUT
RMV II STAGE, BANGALORE - 560094
REP BY GPA HOLDER
SRI RAVINDRAN G
S/O LATE S GOVINDARAJALU
AGED ABOUT 51 YEARS
R/AT NO 278/A, 6TH MAIN
HAL 3RD STAGE, BANGALORE - 560075
12. SMT KANDRA TRILOCHANA
W/O KANDRA VENKATARAMANA
AGED ABOUT 69 YEARS
R/AT B M 367, STREET NO 5
BALARAMNAGAR, SAFILGUDA
SECUNDERABAD,
TELANGANA - 500067
REP BY HER GPA HOLER
SRI RAVINDRAN G
S/O LATE S GOVINDARAJALU
AGED ABOUT 51 YEARS
R/AT NO 278/A, 6TH MAIN,
HAL 3RD STAGE,
BANGALORE - 560075
13 . SMT T D SHANTHA
W/O LATE DAMODARAN,
AGED ABOUT 57 YEARS
R/AT NO 278/A 6TH MAIN,
HAL 3RD STAGE BANGALORE- 560075
4
REP BY HER GPA HOLER
SRI RAVINDRAN G
S/O LATE S GOVINDARAJALU
AGED ABOUT 51 YEARS
R/AT NO 278/A 6TH MAIN,
HAL 3RD STAGE,
BANGALORE - 560075
14 . SRI RAVINDRAN G
S/O LATE S GOVINDARAJALU
AGED ABOUT 51 YEARS,
R/AT NO 278/A 6TH MAIN,
HAL 3RD STAGE,
BANGALORE - 560075
15 . SMT HEMA BHASKAR
W/O BHASKAR GOVINDARAJALU
AGED ABOUT 47 YEARS,
R/AT NO 278 / ACRES 6TH MAIN,
HAL 3RD STAGE,
BANGALORE - 560075
REP BY HER GPA HOLER
SRI RAVINDRAN G
S/O LATE S GOVINDARAJALU
AGED ABOUT 51 YEARS,
R/AT NO 278/A 6TH MAIN,,
HAL 3RD STAGE
BANGALORE - 560075
16 . SRI BHASKAR GOVINDARAJALU
S/O LATE S GOVINDRAJALU
AGED ABOUT 52 YEARS
R/AT NO 278/ACRES 6TH MAIN
HAL 3RD STAGE
BANGALORE - 560075
REP BY HER GPA HOLER
SRI RAVINDRAN G
5
S/O LATE S GOVINDARAJALU
AGED ABOUT 51 YEARS
R/AT NO 278/A 6TH MAIN
HAL 3RD STAGE
BANGALORE - 560075
17. SRI PUPPALA GIRISH PRABHU
S/O PUPPALA MANIKYA PRABHU
AGED ABOUT 51 YEARS
R/AT NO 87, VICTORIA LAYOUT
2ND CROSS, NEAR VIJAYA BANK
BANGALORE - 560047
REP BY HER GPA HOLER
SRI RAVINDRAN G
S/O LATE S GOVINDARAJALU
AGED ABOUT 51 YEARS
R/AT NO 278/A 6TH MAIN
HAL 3RD STAGE
BANGALORE - 560075
18. SRI J FAIROZ KHAN
S/O S JAMAL MOHAMMED
AGED ABOUT 50 YEARS
R/AT NO 59, 8TH CROSS OLD PENSION MOHALLA
MYSORE ROAD, BANGALORE - 560018
...PETITIONERS
(BY SMT.B.V.VIDYULATHA, ADVOCATE FOR P5;
SRI.SHEETAL SONI, ADVOCATE FOR P1 TO 4 & P6 TO 18)
AND:
SMT TAHIRABI
SINCE DEAD BY LRS
6
1. SMT SALEEMBEE
D/O LATE ABDUL MANAN SAB
W/O LATE UBEDULLA
AGED ABOUT 67 YEARS
ABDUL BOARI
S/O LATE ABDUL MANAN SAB
SINCE DECEASED BY LRS
2. SMT GULAB JAN
W/O LATE ABDUL BAARI
AGED ABOUT 69 YEARS
3. SRI ABDUL MUNAAF
S/O LATE ABDUL BAARI
AGED ABOUT 45 YEARS
4. SRI ABDUL AZIM
S/O LATE ABDUL BAARI
AGED ABOUT 43 YEARS
5. SMT SAYEDA
D/O LATE ABDUL BAARI
AGED ABOUT 41 YEARS
6. SRI FAKHRUDDIN
S/O LATE ABDUL BAARI
AGED ABOUT 40 YEARS
7. SMT FAREEDA
D/O LATE ABDUL BAARI
AGED ABOUT 38 YEARS
8. SMT ABIDA
D/O LATE ABDUL BAARI
AGED ABOUT 37 YEARS
9. SRI HUSSAIN
S/O LATE ABDUL BAARI
7
AGED ABOUT 35 YEARS
10. SMT HABEBA
D/O LATE ABDUL BAARI
AGED ABOUT 33 YEARS
11. SMT NASEEBA
D/O LATE ABDUL BAARI
AGED ABOUT 31 YEARS
SMT BAL KEES UNNISA
D/O LATE ABDUL MANAN SAB
SINCE DECEASED BY LRS
12. SMT RAHAMATH JAN
S/O LATE BAL KEES UNNISA
AGED ABOUT 44 YEARS
13. SRI SYED HYDAR ALI
S/O LATE BAL KEES UNNISA
AGED ABOUT 43 YEARS
14. SMT MAQBUL JAN
D/O LATE BAL KEES UNNISA
AGED ABOUT 42 YEARS
15. SMT AKHIL TAJ
D/O LATE BAL KEES UNNISA
AGED ABOUT 40 YEARS
16. SMT MUBEENA
D/O LATE BAL KEES UNNISA
AGED ABOUT 38 YEARS
17. SMT SAMEENA TAJ
D/O LATE BAL KEES UNNISA
AGED ABOUT 37 YEARS
8
18. SRI SYED DASTAGEER
S/O LATE BAL KEES UNNISA
AGED ABOUT 36 YEARS
19. SRI NAVAZ PASHA
S/O LATE BAL KEES UNNISA
AGED ABOUT 34 YEARS
20. SMT ASMA
D/O LATE BAL KEES UNNISA
AGED ABOUT 34 YEARS
21. SRI NIJAMUDEENS
S/O LATE BAL KEES UNNISA
AGED ABOUT 31 YEARS
22. SRI NAADEEM PASHA
S/O LATE BAL KEES UNNISA
AGED ABOUT 29 YEARS
MOHAMMED GHOUSE
S/O LATE ABDUL MANAN SAB
SINCE DECEASED BY LRS
23. SMT JABEENA
D/O LATE MOHHAMMED GHOUSE
AGED ABOUT 36 YEARS
24. SRI MOHAMMED DASTAGIR
S/O LATE MOHHAMMED GHOUSE
AGED ABOUT 36 YEARS
25. SMT ZAREENA
D/O LATE MOHHAMMED GHOUSE
AGED ABOUT 34 YEARS
26. SMT NASEEMA
D/O LATE MOHHAMMED GHOUSE
9
AGED ABOUT 33 YEARS
27. SRI MONUDDIN
S/O LATE MOHHAMMED GHOUSE
AGED ABOUT 30 YEARS
28. DRI MOULA
S/O LATE MOHHAMMED GHOUSE
AGED ABOUT 29 YEARS
29. SMT KHALIDA
D/O LATE MOHHAMMED GHOUSE
AGED ABOUT 29 YEARS
30. SMT AYISHA
D/O LATE MOHHAMMED GHOUSE
AGED ABOUT 36 YEARS
31. SMT KHUTTIJABI
D/O LATE ABDUL MANAN SAB
W/O SRI SALEEM
AGED ABOUT 58 YEARS
32. SRI ABDUL NABI
S/O LATE ABDUL MANAN SAB
AGED ABOUT 57 YEARS
33. SRI ABDUL AZIZ
S/O LATE ABDUL MANAN SAB
AGED ABOUT 56 YEARS
34. SRI MOHAMMED AYOOB
S/O LATE ABDUL MANAN SAB
AGED ABOUT 54 YEARS
35. SRI MOULLA ALI
S/O D MOHAMMED FAKRUDDIN SAHEB
AGED ABOUT 41 YEARS
10
36. SMT SALEEMA ANJUM
W/O MOULLA ALI
AGED ABOUT 36 YEARS
RESPONDENT NOS.1-36 ARE ALL
R/AT RAZAKSABPALYA BAGHALUR,
DAKHALE JALA HOBLI
BANGALORE NORTH TALUK
37. SRI B RAVI
S/O B BYREGOWDA
AGED ABOUT 40 YEARS
R/AT MALLEMACHANAHALLI
SIDDAGHATTA TALUK, KOLAR DISTRICT
38. M/S BEML (HQRS AND MKTG)
SC/ST EMPLOYEES WELFARE ASSOCIATION
BHARAT EARTH MOVES LTD
NO 36, 5TH FLOOR, UNITY BUILDING
J C ROAD, BANGALORE - 560002
REPRESENTED BY ITS PRESIDENT
SRI R SAMPATH
...RESPONDENTS
(BY SRI.A.CHANDRA CHUD, ADVOCATE FOR C/R1-34)
THIS PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DTD. 31.03.2021 PASSED BY THE LEARNED
SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI IN
O.S.NO. 939/2008 ON IA NOS. 16 TO 31 AT ANNX-L TO
THE WRIT PETITION AND DIRECTION, IMPLEADING THE
PETITIONERS AS PARTY DEFENDANTS IN
O.S.NO.939/2008 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, DEVANAHALLI.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 27.09.2022, COMING ON FOR
11
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the impleading applicants feeling aggrieved by the impugned order dated 31.3.2021 passed on I.A.Nos.16 to 31.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. Original plaintiff Smt. Tahirabi, instituted a suit seeking declaration that she is the absolute owner of the suit schedule property and also questioned the general power of attorney dated 2.1.1996 in favour of defendant No.1 executed by the children of plaintiff as not binding on her. Further declaration was also sought questioning the sale deed in favour of defendants 2 and 4. She also sought a declaration to declare all subsequent transactions as illegal and not 12 binding on her. Pending consideration of the suit, the present impleading applicants have filed separate impleading applications seeking leave of the Court to come on record. The impleading applicants claimed that the fourth defendant-association resolved to secure lands for formation of residential sites and accordingly, entered into a memorandum of association with defendants 1 and 2 and in terms of the same, defendants purchased the lands and formed the layout called as "BEML Soudha New layout". Thereafter, the said layout was handed over to the fourth defendant-association. The impleading applicants further contended that before forming a layout, the land was converted. Therefore, the impleading applicants contended that they have purchased respective sites from fourth defendant- association and their names are duly mutated to the property extracts. The impleading applicants further 13 claimed that they are paying tax and are in exclusive possession of the respective sites purchased under the sale deeds. The said application was contested by the plaintiffs by filing detailed objections by denying the transactions between fourth defendant and the impleading applicants. Plaintiff contended that the impleading applicants are neither necessary party nor proper party and therefore, prayed for rejection of the application.
4. The Trial Court having examined the rival contentions was not inclined to entertain the impleading applications. The learned Judge was of the view that there are around 1,500 sites and around 248 persons have purchased sites from fourth defendant. Therefore, the learned Judge was of the view that the impleading applicants cannot be permitted to come on record. The learned Judge was of the view that fourth defendant has contested the 14 proceedings by filing the written statement and relevant issues are already framed casting burden on fourth defendant to prove due execution of the registered power of attorney. It is in this background, the learned Judge was of the view that the proposed defendants i.e. the impleading applicants are claiming title through fourth defendant and therefore, they are not at all necessary for effective adjudication. The learned Judge was of the view that if the rights of fourth defendant association is adjudicated, the consequence would follow and on this ground, proceeded to reject the application.
5. I have heard the learned counsel appearing for the petitioners-impleading applicants and the learned counsel appearing for plaintiffs.
6. Several documents were produced along with the memos by the respective parties. I have 15 examined the averments made in the affidavits filed in support of the impleading applications. I have also examined the objections.
7. It is not generally the province of the Court to force the plaintiff in a case to implead a particular person as a party. At the same time, it is equally a trite law that theory of dominus litus should not be over stretched in the matter of impleading the parties, because it is the duty of the Court to ensure that for deciding the real matter in dispute, a person who is a necessary party can be impleaded.
8. In the present case on hand, though the dispute is between the original plaintiff and fourth defendant, but any order that would be passed on adjudication would directly affect the rights of impleading applicants herein who have acquired right and title pursuant to the registered sale deed 16 executed by fourth defendant. The original plaintiff died during the pendency of the suit. The original plaintiff who is the mother of the present plaintiffs who are brought on record as the legal representatives has questioned the GPA executed by her sons. The original plaintiff is no more while the President of fourth defendant-Association is also no more. It is an admitted fact that as of now, there is no body to represent the fourth defendant- Association. Learned counsel appearing for plaintiff has made a submission to this Court that inspite of best efforts, his clients are unable to ascertain the particulars of authorised person to defend the fourth defendant-Association.
9. While learned counsel appearing for impleading applicants has also made a submission that all the impleading applicants have made all possible efforts to get in touch with the fourth 17 defendant- Association, but all their efforts have gone in vain.
10. It is in this factual matrix, this Court has to examine as to whether the impleading applicants are entitled to defend the case on behalf of fourth defendant-Association. Therefore, this Court feels it necessary to cull out the prayer sought in the plaint, which reads as under:
"a. To declare that the plaintiff is the absolute owner of the suit schedule property in peaceful possession and enjoyment of the same.
b. To declare that the General Power of Attorney dated: 02.01.1996, registered as documentNo.967/95-96 in favour of the Defendant No.1 by the children of the plaintiff as not binding."
11. The prayer (f) in the plaint would directly affect the impleading applicants rights. If there is nobody to defend the fourth defendant-Association, then I am of the view that the impleading applicants 18 are entitled to come on record and defend the suit. This Court is prima-facie satisfied about the bonafides of the impleading applicants, the plausibility of their claim and also genuineness of their interest in the litigation. The petitioners' interest will be directly affected by the suit and its eventual result. The object of the Rules is to bring before the Court, at the same time, all the persons who are parties to dispute relating to one subject matter so that the disputes may all be determined at the same time without delay, inconvenience and expense of separate actions and trials.
12. The apprehension of plaintiffs that it would widen the scope of enquiry if all the impleading applicants are permitted to come on record appears to be reasonable. The impleading applicants by coming on record cannot seek adjudication of their individual rights. Having regard to the facts of the case, it would 19 be open for all the impleading applicants to lead common evidence and establish the right and title of fourth defendant-Association. If impleading applicants are directed not to lead evidence individually, then no prejudice would be caused to the plaintiff. The entire controversy revolves around the authorisation by way of general power of attorney dated 2.1.1996 given to defendant No.1 by the children of original plaintiff and the validity of consequent sale deeds. Therefore, if impleading applicants are permitted to defend fourth defendant-Association without seeking redressal of their individual rights over the plots purchased under their respective sale deeds, even if impleading applicants are permitted to come on record, it would not widen the scope of enquiry and therefore, no serious prejudice would be caused to the plaintiff.
13. The Court of law cannot adopt a mechanical process but apply its mind and completely 20 satisfy itself that presence of new party is not necessary. The trial Court has not examined and taken congnizance of several significant details and has mechanically rejected impleading application on the ground that fourth defendant-Association will protect the interest of purchasers. President of fourth defendant is no more and there is nobody to defend the association. When such incumbent duty is mechanically examined, the impugned order is not sustainable.
14. For the foregoing reasons, I pass the following:
ORDER
(i) The writ petition is allowed.
(ii) The impugned order dated 31.3.2021 passed on I.A.Nos.16 to 31 in O.S.No.939/2008 is set aside.
(iii) The petitioners-impleading applicants are permitted to come on record.21
(iv) It is made clear that the impleading applicants should confine and defend the suit through fourth defendant-Association by examining any one of the interested parties.
(v) It is open for the impleading applicants to examine any one of the witness on behalf of 4th defendant and adduce rebuttal evidence, if they choose to do so.
(vi) It is made clear that the impleading applicants shall establish the title of fourth defendant-
Association, that necessarily presupposes that every purchaser cannot drag on the proceedings by leading independent evidence.
All contentions are kept open.
Sd/-
JUDGE *alb/-