Karnataka High Court
Balakrishna S/O Gurunath Shambhuche vs Parasharam Yallappa Shambhuche on 25 June, 2019
Author: S G Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25 T H DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR.JUSTICE S.G. PANDIT
WRIT PETI TION NO.105717/2019 (GM-CPC)
BETWEEN:
1. BALAKRISHNA S/O GURUNATH SHAMBHUCHE
AGE: 42 YEARS, OCC: BUSINESS,
R/O: KANGRALI GALLI, BELAGAVI-590001.
2. SOMANATH S/O GURUNATH SHAMBHUCHE
AGE: 40 YEARS, OCC: BUSINESS,
R/O: KANGRALI GALLI, BELAGAVI-590001,
REPRESENT BY GPA HOLDER PETITIONER NO.1.
... PETITIONERS
(BY SRI. VITTHAL S.TELI, ADVOCATE)
AND
1. PARASHARAM YALLAPPA SHAMBHUCHE
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: KANGRALI GALLI,
BELAGAVI-590001.
2. MAHADEVI MEENAJI SHAMBHUCHE
AGE: ABOUT 45 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KANGRALI GALLI,
BELAGAVI-590001.
3. UMABAI BABURAO SHAMBREKAR
AGE: ABOUT 42 YEARS,
OCC: HOUSEHOLD WORK,
2
R/O: KANGRALI GALLI,
BELAGAVI-590001.
4. GUNAWATH BALKRISHNA AMBOLKAR
AGE: ABOUT 41 YEARS,
OCC: HOUSEHOLD WORK,
R/O: RAIBAD COLONY,
KOLHAPUR-MAHARASHTRA-416008.
5. RENUKA SHAMRAO KANDEKAR
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
R/O: HANUMAN NAGAR, BELAGAVI-590019.
6. SHARADA SANJAY BAADAGE
AGE: ABOUT 37 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GANCHARI GALLI,
BELAGAVI-590001.
7. NASIR-AHAMMED S/O MOHAMMADSAB SOUDAGAR
AGE: 49 YEARS, OCC: AGRICULTURAL & COOLIE,
R/O: 4817/52, 2ND CROSS,
SUBHASH NAGAR, BELAGAVI-590016.
8. SHRI SHIVAPUTRAPPA MALLAPPA BHOJ
AGE: 75 YEARS, OCC: AGRICULTURE,
R/O: B-1/14, RAKAHALEKHA SOCIETY,
DATTAWADI, PUNE.
9. SHRI VINAYAK SHIVAPUTRAPPA BHOJ
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: B-1/14, RAKAHALEKHA SOCIETY,
DATTAWADI, PUNE. ... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITU TION OF INDIA PRAYING
TO QUASH THE ORDER DATED 20.08.2018 PASSED IN
O.S.NO.292/2011 BY THE V ADDL. CIVIL JUDGE AND
J.M.F .C., BELAGAVI VIDE ANNEXURE-H AND ETC.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEA RING THIS DAY, THE COURT MADE
THE FOLLOWING:
3
ORDER
The petitioners are before this Court praying to set aside the order dated 20.08.2018 in O.S.No.292/2011 on the file of V Addl.Civil Judge and J.M.F.C., Belagavi.
2. The petitioners are plaintiffs and respondents are defendants in O.S.No.292/2011 filed for declaration and injunction. It is the case of the petitioners-plaintiffs that during the pendency of the suit, defendant No.1 sold portion of the suit schedule property to defendant No.7. Defendant No.7 was impleaded by order dated 30.10.2015. Subsequently, defendant No.7 sold the property to proposed defendant Nos.8 and 9. The plaintiffs filed an application I.A.No.5 under Order I Rule 10 read with Section 151 of C.P.C. to implead proposed defendant Nos.8 and 9, who are said to be 4 subsequent purchasers from defendant No.7. In the affidavit, the plaintiffs stated that the proposed defendant Nos.8 and 9 are necessary parties since they have purchased suit property from defendant No.7 during the pendency of the suit for proper adjudication of the issue involved in the suit. It is stated that the proposed defendant Nos.8 and 9 are very much necessary to the suit. The proposed defendant Nos.8 and 9 objected for impleading application. The Trial Court by impugned order rejected I.A.5 filed under Order I Rule 10(2) of C.P.C. Aggrieved by the same, the petitioners are before this Court.
3. Heard the learned counsel for the petitioners and perused the writ petition papers.
4. The learned counsel for the petitioners would submit that the presence of proposed defendant Nos.8 and 9 are necessary for proper 5 adjudication of the dispute involved in the suit. They are necessary and proper parties since they are subsequent purchasers of suit schedule property. It is stated that defendant No.1 during the pendency of the suit, sold a portion of the suit property. Subsequently, defendant No.7 sold the said property purchased from defendant No.1 to proposed defendant Nos.8 and 9. He further submits that the Trial Court while deciding the application has made certain observations at Para 12 and 13 which would have a bearing on final disposal of the suit. Hence, he prays for setting aside the order.
5. Having heard the learned counsel for the petitioners and on perusal of the writ petition papers, I am of the view that the order passed by the Trial Court is neither perverse nor erroneous so as to interfere with the order. It is 6 the case of the petitioners that the suit is for declaration and injunction. During the pendency of the suit, defendant No.1 sold portion of the suit property to defendant No.7. In turn, defendant No.7 sold the property to proposed defendant Nos.8 and 9. It is to be noted that all the transactions i.e. sale in respect of defendant No.7 and subsequent sale from defendant No.7 to proposed defendant Nos.8 and 9 have taken place during the pendency of the suit. Since the transactions have taken place during the pendency of the suit, any decree to be passed in the suit would be binding on the purchasers. This Court in a case reported in 2017(1) AKR 513 Basavaraj alias Madhu v/s Smt.Suvarnamma and others has held as follows:
14. Admittedly, in the present case, the impleading applicant or the 7 defendants have not obtained the order or authority of the Court before alienation is made in respect of item No.1 in favour of the proposed impleading applicant. Therefore, the alienation obviously would be hit by the doctrine of lis pendence by operation of Section 52 of the Transfer of Property Act, 1882.
15. The Hon'ble Supreme Court while considering the provisions of Section 52 of the Transfer of Property Act, in the case of Sanjay Verma v.
Manik Roy and others reported in AIR 2007 SC 1332, held as under:
"Section 52 postulates a condition that the alienation will in no manner affect the right of any party under any decree which may be passed in the suit, unless the property was alienated with the permission of the Court. Therefore, the alienation obviously will be hit by the doctrine of lis pendence."8
16. x x x x x x
17. The Appellate Court considering the provisions of Order I, Rule 10(2) of the Code of Civil Procedure and Section 52 of the Transfer of Property Act, held that any alienation made by the defendant during pendency of the appeal would be hit by the doctrine of lis pendence and therefore the proposed impleading applicant is not a necessary and property party, in order to enable the appellate Court to adjudicate all the questions effectively. Same is in accordance with law.
6. By following the above principle, I am of the view that the presence of proposed defendant Nos.8 and 9 are not necessary for adjudication of the dispute involved in the suit. The Trial Court during the course of its order at Para 12 and 13, has made observation on merit 9 of the case. Hence, it is made clear that any observation made during the course of the order at Para 12 and 13 shall not influence or shall not be looked into while disposing of the suit.
With the above, the writ petition is disposed off.
Sd/-
JUDGE CL K