Dismissed

Sri Venugopal Swamy Enterprises v. Sri Muniyappa

Karnataka HC4 Aug 2023WP/1419/2023

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the trial Court's refusal to implead a petitioner as a necessary party in a suit for declaration of title by adverse possession. The Court held that without specific evidence establishing the lease claim overlaps with the suit property, the petitioner is not a proper party.

What did the court decide?

The writ petition seeking to implead the petitioner in the suit was dismissed.

Sri Venugopal Swamy Enterprises Vs Sri Muniyappa — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:27439 WP No. 1419 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF AUGUST, 2023 BEFORE

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THE HON’BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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WRIT PETITION NO.1419 OF 2023 (GM-CPC)

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BETWEEN:

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SRI VENUGOPAL SWAMY ENTERPRISES REP. BY ITS PROPRIETOR, SRI. P.B. RAJA GOPAL, AGED ABOUT 54 YEARS, S/O LATE BYREGOWDA, R/O. KANNAMANGALAPALYA VILLAGE, KANNAMANGALA POST, BANGALORE RURAL DISTRICT. ... PETITIONER

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(BY SRI NAIK N.R., ADVOCATE)

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AND:

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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SRI MUNIYAPPA S/O. DODDAHANUMANTHAPPA, AGED ABOUT 81 YEARS, RESIDENT OF KEMPATHIMMANAHALLI VILLAGE, KASABA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT – 561 201.

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THE STATE OF KARNATAKA BY ITS REVENUE SECRETARY, VIKAS SOUDHA, BENGALURU – 560 001.

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THE DEPUTY COMMISSIONER, BENGALURU RURAL DISTRICT, BEERASANDRA VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT – 561 201.

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THE ASSISTANT COMMISSIONER DODDABALLAPURA SUB-DIVISION,

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NC: 2023:KHC:27439 WP No. 1419 of 2023

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DODDABALLAPURA TALUK OFFICE, BENGALURU RURAL DISTRICT – 560 201.

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THE TAHASILDAR DEVANAHALLI TALUK, DEVANAGALLI,

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BENGALURU RURAL DISTRICT – 561 201. ... RESPONDENTS

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(BY SRI MANJUNATH, ADVOCATE FOR SRI T. SESHAGIRI RAO, ADVOCATE FOR C/R-1; SRI SHIVANANDA D.S., AGA FOR R-2 TO R-5)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 12.12.2022 PASSED ON I.A. NO.5 FOR IMPLEADING THE PETITIONER AS A PROPER AND NECESSARY PARTY IN O.S.NO.1001/2021 BY THE HONBLE PRL.SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, BANGALORE RURAL DISTRICT, WHICH IS PRODUCED AT ANNEXURE-D.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The present writ petition is filed under Article 227 of

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the Constitution of India seeking to set-aside the order dated 12.12.2022 passed on I.A.No.V for impleading the petitioner as defendant No.5 in O.S.No.1001/2021 on the file of the Principal Senior Civil Judge and JMFC, Devanahalli, Bengaluru Rural District (for short, 'the trial Court').

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3 - NC: 2023:KHC:27439 WP No. 1419 of 2023

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Brief facts giving rise to filing of this petition are

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that the respondent No.1 has filed O.S.No.1001/2021

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praying to declare that he is in peaceful possession of the suit schedule property having perfected his title by way of adverse possession. During the pendence of the said suit, the petitioner herein has filed I.A.No.5 under Order I Rule 10(2) of the CPC seeking permission to come on record as defendant No.5. The said application came to be rejected by the trial Court vide order dated 12.12.2022. Being aggrieved by the rejection of the said application, the present petition is filed.

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Sri. Naik N.R., learned counsel for the petitioner

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submits that petitioner has filed an application under Order I Rule 10 (2) read with Section 151 of the CPC seeking permission to come on record as defendant No.5 in the suit filed by respondent No.1-plaintiff seeking prayer to declare that the plaintiff is an absolute owner in peaceful possession of the suit schedule property by way of adverse possession. The said application came to be rejected by the trial Court without considering the fact that

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on earlier occasion the petitioner was a lessee of the subject land which was leased by the respondentauthorities for a period of five years from 2004 to 2009, thereafter, he sought extension of lease, which was not considered. Hence, he filed the writ petition in W.P.No.46591/2019 before this Court and this Court directed the respondent-authorities to consider the representation for renewal of lease and the same is pending consideration. In the meanwhile, respondent No.1 herein has filed the suit seeking to declare him as an absolute owner and is in peaceful possession of the schedule property by way of adverse possession, which effects the rights of the petitioner and hence, the petitioner is a proper and necessary party to the suit proceedings. Hence, he seeks to allow the writ petition by permitting the petitioner to come on record in the said suit.

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Per contra, Sri. Manjunath, learned counsel appearing for Sri.T.Seshagiri Rao, learned counsel for respondent No.1-plaintiff supports the impugned order of

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the trial Court and submits that the trial Court has considered the averments made in the application, wherein, the petitioner was unable to place on record the initial grant of lease or any document to support his contention. It is submitted that the trial Court has recorded categorical finding that the petitioner has failed to produce any document to establish that the initial lease was granted for a period of five years from 2004 to 2009 and thereafter, the same was renewed. Hence, he is not a necessary and proper party in the suit filed by respondent No.1. He further submitted that survey Nos.9 and 10 of Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District, consists of more than 100 acres and the petitioner has failed to point out where exactly the alleged lease property falls. It is submitted that the very identification of the property is in dispute, hence, he cannot be proper and necessary party in the said suit. Hence, he seeks to dismiss the petition.

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Sri.D.S.Shivanand, learned Additional

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Government Advocate for respondent Nos.2 to 5, supports

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the impugned order passed by the trial Court and seeks to dismiss the writ petition.

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I have heard the learned counsel for the petitioner, learned counsel for respondent No.1, learned Additional Government Advocate for respondent Nos.2 to 5 and perused the material on record.

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It is not in dispute that respondent No.1 herein has filed a suit in O.S.No.1001/2021 praying to declare that the respondent No.1-plaintiff is the absolute owner in peaceful possession and enjoyment of the suit schedule property by way of adverse possession and also seeking permanent injunction to restrain the defendants from dispossession. The suit schedule property is the land bearing Sy.No.9 measuring 2 acre 20 guntas situated at Kempathimmanahalli Village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District. The contention of the petitioner is that, in the year 2004 he has been granted lease in respect of the land measuring 3 acres in Sy.Nos.9

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and 10 of Kempathimmanahalli Village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District, for quarrying

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for a period of five years. However, the authorities have not renewed the lease. Hence, he submitted a representation to the Deputy Director, Mines and Zoology on 26.09.2014. The said authority has issued an endorsement dated 07.02.2019 rejecting the request of the petitioner for renewal of lease. The said endorsement was assailed by the petitioner in W.P.No.46591/2019 before this Court. This Court, has directed the respondentauthorities to consider the representation of the petitioner for renewal of lease in accordance with law. It is also not

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in dispute that the authorities have not yet considered the representation of the petitioner, which is alleged to have been pending consideration. On perusal of the application filed by the petitioner to seek impleadment in the above suit, the petitioner is not specific as to where exactly the lease was granted. It is not forthcoming from the application where exactly the lease portion falls out of total extent of land. The petitioner is not specific whether the land claimed by the petitioner is overlapping with the suit schedule property. In the absence of any material on

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record, it would be difficult for this Court to come to the conclusion that the petitioner's claim overlaps over the suit schedule property. The trial Court has recorded the finding that the petitioner has failed to produce the alleged quarrying lease granted in his favour for a period of five years and in the absence of any such evidence, it has proceeded rejected I.A.No.5 seeking impleadment in the suit, admittedly petitioner has not produced any evidence to support his claim. The claim of the petitioner is not crystallized into rights in his favour and is only an aspirant

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of getting the lease renewed. Unless some semblance of right is established by the petitioner over the suit schedule property, the petitioner cannot be a proper and necessary

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party to the subject suit. The trial Court has recorded categorical finding that the petitioner has failed to establish that the petitioner is a necessary and proper party to the suit. I do not find any reason or error in the said finding recorded by the trial Court calling for interference in the present writ petition. It is always open

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NC: 2023:KHC:27439 WP No. 1419 of 2023

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for the petitioner to pursue any remedies, if available in

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law.

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With the above observations, this writ petition

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stands dismissed .

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Sd/JUDGE

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MBM/BSR

Sri Venugopal Swamy Enterprises v. Sri Muniyappa

Case brief

What is this about?

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Sri Venugopal Swamy Enterprises v. Sri Muniyappa

Case brief

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