Smt. Sarojamma Vs Smt. Jayamma

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1 - NC: 2025:KHC:23488 WP No. 171 of 2020

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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WRIT PETITION NO. 171 OF 2020 (GM-CPC)

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BETWEEN:

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SMT. SAROJAMMA AGED ABOUT 70 YEARS, W/O LATE GANGAPPA, R/O YERAMANCHANAHALLI VILLAGE, KASABA HOBLI, NELAMANGALA TALUK - 562 123.

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SMT. LAKSHMAMMA AGED ABOUT 50 YEARS, D/O LATE GANGAPPA, R/O KENCHANAHALLI VILLAGE, KASABA HOBLI, NELAMANGALA TALUK - 562 123.

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Digitally signed by RUPA V Location: High Court of karnataka

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SMT. GOWRAMMA AGED ABOUT 48 YEARS, D/O LATE GANGAPPA, R/O DIBBUR VILLAGE, KASABA HOBLI, TUMKUR TALUK - 572 101.

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HANUMANTHARAYAPPA AGED ABOUT 40 YEARS, S/O LATE GANGAPPA, R/O YERAMANCHANAHALLI VILLAGE, KASABA HOBLI, NELAMANGALA TALUK - 562 123.

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PETITIONERS NOS. 1 TO 4 REPRESENTED BY SPA HOLDER

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2 - NC: 2025:KHC:23488 WP No. 171 of 2020

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HC-KAR

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H. MADHU KUMARA, S/O HANUMANTHARAYAPPA, R/O BUDHIHAL VILLAGE, KASABA HOBLI, NELAMANGALA TALUK - 562 123.

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…PETITIONERS

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(BY SRI. HARSHA KUMAR GOWDA H.R, ADVOCATE)

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AND:

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SMT. JAYAMMA, AGED ABOUT 61 YEARS, W/O LATE BYREGOWDA, R/O YERAMANCHANAHALLI VILLAGE, KASABA HOBLI, NELAMANGALA TALUK - 562 123.

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SMT. PUSHPALATHA AGED ABOUT 44 YEARS, D/O LATE BYREGOWDA, R/O YERAMANCHANAHALLI VILLAGE, KASABA HOBLI, NELAMANGALA TALUK - 562 123.

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SMT. NIRMALA AGED ABOUT 38 YEARS, D/O LATE BYREGOWDA, R/O YERAMANCHANAHALLI VILLAGE, KASABA HOBLI, NELAMANGALA TALUK - 562 123.

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SURESH AGED ABOUT 34 YEARS, S/O LATE BYREGOWDA, R/O YERAMANCHANAHALLI VILLAGE, KASABA HOBLI, NELAMANGALA TALUK - 562 123.

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GIRISH, AGED ABOUT 27 YEARS, S/O LATE BYREGOWDA,

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NC: 2025:KHC:23488 WP No. 171 of 2020

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HC-KAR

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R/O YERAMANCHANAHALLI VILLAGE, KASABA HOBLI, NELAMANGALA TALUK - 562 123.

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BHAIRAV, AGED ABOUT 43 YEARS, S/O LATE GANGAPPA, R/O YERAMANCHANAHALLI VILLAGE, KASABA HOBLI, NELAMANGALA TALUK - 562 123.

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H. ARUN KUMAR, AGED ABOUT 51 YEARS, S/O LATE D. HONNAIAH, R/AT BUDIHAL VILLAGE, KASABA HOBLI, NELAMANHALA TALUK, BENGALURU RURAL DISTRICT - 562 123.

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…RESPONDENTS

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(BY SRI. HANUMAMTHE GOWDA, ADVOCATE FOR R1 TO R4; SRI. S.G. HEGDE, ADVOCATE FOR R5; VIDE ORDER DATED 16.06.2023, SERVICE OF NOTICE TO R6 IS DISPENSED WITH)

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THIS WP FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.11.2019 PASSED BY THE HONBLE ADDL. CIVIL JUDGE AND JMFC, NELAMANGALA, DISMISSING I.A.NO.23 IN O.S.NO.146/2006 AT ANNEXURE-A AND ETC.,

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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NC: 2025:KHC:23488 WP No. 171 of 2020

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HC-KAR

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ORAL ORDER

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This petition is filed seeking following reliefs :

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a) issue a writ of certiorari or any other appropriate writ or order or direction to quash the Order dated 18.11.2019, passed by the Hon'ble Addl. Civil Judge & JMFC, Nelamangala, dismissing I.A. No.23 in O.S. No. 146/2006, at Annexure-A

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b) to allow I.A. No.23 in O.S. No.146/2006; on the file of the Hon'ble Addl. Civil Judge & JMFC, Nelamangala; and

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c) issue any other appropriate writ, or order or direction as deemed fit in the circumstances of the case,

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in the interest of justice and equity.

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Heard.

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Petitioners have filed a suit for partition and separate

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possession. The said suit came to be decreed exparte on 23.6.2010. Thereafter, the petitioners executed a registered sale deed dated 7.3.2011 in favour of H.Narasimha Raju and thereafter, he has executed a registered gift deed on 11.1.2014 in favour of respondent no.7- H.Arun Kumar. It is submitted that respondents no.1 to 5 filed miscellaneous petition No.9/2011 seeking to recall the exparte judgment and decree and the said miscellaneous petition came to be allowed on 8.1.2014; and after restoring the suit, the petitioner filed an

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NC: 2025:KHC:23488 WP No. 171 of 2020

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HC-KAR

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application to implead respondent no.7, who is the present owner of the property, based on the gift deed.

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The trial Court without considering the same, rejected the application holding that the judgment and decree granted in the suit binds the subsequent purchaser, by applying the principle of lis pendence . It is submitted that the sale in question has taken place when there were no proceedings pending between the parties. Hence, he seeks to allow the petition by permitting respondent no.7 to come on record.

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Per contra, Sri S.G.Hegde, learned counsel for respondent no.5 supports the impugned order of the trial Court and submits that, the trial Court considering the settled principles of law that, the subsequent purchaser is bound by the decree for partition and, by following the decision of this Court in the case of Basavaraj alias Madhu vs. Smt. Suvarnamma and others¹ held that, he is not a necessary party. It is submitted that, even the suit is dismissed and thereafter sale has taken place and before filing the appeal, if the sale takes place, the principles of lis pendence applies, as

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1 2017 (1) AKR 513

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NC: 2025:KHC:23488 WP No. 171 of 2020

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HC-KAR

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held by the Hon'ble Supreme Court in Kirpal Kaur vs Jitender Pal Singh and Others² . It is submitted that, the suit in the case is for partition and separate possession and admittedly respondent no.7 is a subsequent purchaser during the pendency of the proceedings and the decree passed in the suit binds him. Hence, he is not a necessary and proper party to adjudicate the suit. Hence, he seeks to dismiss the writ petition.

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I have heard the arguments of the learned counsel for the petitioner, learned counsel for respondent no.5, meticulously perused the material on record and I have given my anxious consideration to the arguments advanced on both sides.

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The petitioners filed O.S.No.146/2006 seeking for partition and separate possession of the suit schedule property. The said suit came to be decreed exparte on 23.6.2010, which was later restored by allowing the miscellaneous petition no.9/2011 on 8.1.2014. The material available on record indicates that, the plaintiffs have sold the suit schedule

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2 (2015) AIR (SC) 2967

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NC: 2025:KHC:23488 WP No. 171 of 2020

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HC-KAR

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property on 7.3.2011. Admittedly, on the date of sale, miscellaneous petition was not pending and the suit filed by the petitioner was decreed exparte. Later, respondents 1 to 5 filed miscellaneous petition no.9/2011 which came to be allowed on 8.1.2014 and the suit was restored. After restoring the suit, the parties have adduced evidence and when the matter was posted for arguments, the petitioner filed an application under Order 1 Rule 10(2) CPC seeking to implead respondent no.7 as a party to the proceedings on the ground that the said proposed defendant has acquired the property by way of gift deed dated 11.1.2014 executed by one H.Narasimharaju, who is the purchaser of the property from the petitioner under the sale deed dated 7.3.2011. The trial Court considering the decision of this Court in the case of Basavaraj referred supra, held that impleadment of subsequent purchaser in a suit for partition and separate possession cannot be entertained as the property is purchased during the pendency of the proceedings and the purchaser is bound by the decree and if the vendor succeeds, he is entitled for the property and rejected the application.

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NC: 2025:KHC:23488 WP No. 171 of 2020

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HC-KAR

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In my considered view, the trial Court has committed a grave error in rejecting the application. In the case on hand, the sale has taken place on 7.3.2011. On the said date, the plaintiffs' suit was decreed and later, it was restored on 8.1.2014. Miscellaneous Petition for restoration was filed in the year 2011. Be that as it may, the issue with regard to lis pendence can also be gone into in the pending suit. If respondent no.7 is impleaded, it would be useful for the trial Court to adjudicate the dispute between the parties completely and it would avoid multiplicity of proceedings.

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The judgment relied by the learned counsel for respondent no.5, referred supra, cannot be gone into at this stage. The issue with regard to lis pendence and the effect of the same is required to be gone into by the trial Court in the pending suit. It is not in dispute that the application for impleadment is filed when the matter is posted for arguments. Hence, the application is required to be allowed on terms.

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At this stage, learned counsel for respondent no.5 submits that, the suit is of the year 2006 and direction may be issued to dispose of the suit in a time bound manner. Such a

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NC: 2025:KHC:23488 WP No. 171 of 2020

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HC-KAR

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direction cannot be issued to the trial Court. However, liberty is granted to the defendants to make a request to the trial

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Court for early disposal of the suit.

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For the aforementioned reasons, I proceed to pass the following order :

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ORDER

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i) Writ petition is allowed;

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ii) The impugned order dated 18.11.2019, passed by the Hon'ble Additional Civil Judge and JMFC, Nelamangala, on I.A.No.23, filed by the petitioner under Order 1 Rule 10(2) CPC, is set aside;

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iii) Consequently, the said I.A.23 is allowed, subject to the petitioner paying cost of Rs.10,000/- to defendants no.1 and 2;

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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List No.: 1 Sl No.: 14

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rs

Smt. Sarojamma v. Smt. Jayamma

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Smt. Sarojamma v. Smt. Jayamma

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