Smt Chandramma Vs K M Mahadevegowda

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC AT NANJANGUD DISMISSING THE IA FILED UNDER ORDER I RULE 10 R/W SECTION 151 OF CPC IN O.S. NO. 41/2021 DATED 27.06.2024, VIDE ANNEXURE-J.POST THIS WP FOR PRELIMINARY HEARING BEFORE SINGLE JUDGESN08.08.2024

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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This matter is taken up for final disposal with the

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consent of learned counsel for the parties appearing before this Court. The petitioners herein are the impleading

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applicants in OS.No.41/2021 filed by the

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plaintiffs/respondents for the relief of partition and separate possession and other consequential reliefs.

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Petitioners/impleading applicants filed an

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application under Order I Rule 10 read with Section 151 CPC to implead them as defendant Nos.15 to 19 in the suit for partition filed by the plaintiffs/respondents in O.S.NO.41/2021 before the Senior Civil Judge, JMFC, Nanjangud. It is the contention of learned counsel for the petitioners/impleading applicants that the suit schedule item No.2 situated in Survey No.16 of Kaggalur Village, Hullahalli, Hobli, Nanjangudu Taluk which measures totally to an extent of 5 acres 15 guntas, was originally owned by one Sri.Dasashetty. The said land to an entire extent of 5 acres 15 guntas was sold to one Sri.Karigowda S/o Giddegowda on 11.11.1932. In turn, out of the said 5 acres, 3 acres of land came to be sold in favour of one Dhyavagowda S/o Bettegowda by executing a registered sale deed on 13.12.1945, the said Dhyavagowda S/o

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Bettegowda further sold the said 3 acres to the father of petitioner No.5, Sri. Kullappa, through a registered sale deed dated 27.06.1968. Copies of the sale deeds of the year 1932, 1945 and 1968 are produced along with this petition.

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It is further contended that the petitioners are

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the lawful owners of the property to an extent of 3 acres which has been inherited from Sri.Kullappa, who had purchased the property from Sri.Karigowda S/o Giddegowda vide registered sale deed dated 27.06.1968.

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The respondents/plaintiffs have filed the suit for

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partition in item No.2 in Sy.No.16; 5 acres 15 guntas is included in the schedule, out of which 3 acres is owned by the petitioners, who are the impleading applicants who sought to implead themselves in the trial Court in the original suit. The trial Court has rejected the application on

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the ground that the petitioners/impleading applicants have not produced materials to show that they are the owners

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or any title documents or RTC records or revenue records

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to substantiate their contentions in the application for impleadment.

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It is no doubt true that item No.2 in Sy.No.16, property is shown as 5 acres 15 guntas in the said survey number. But petitioners have not mentioned or shown or produced any document of title or RTC or revenue records to substantiate their claim. To show and satisfy the Court as to how and why they are a proper and necessary party

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in the suit proceedings. Therefore, for non-production of these documents, the application came to be rejected.

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Learned counsel for the petitioners/impleading applicants contends that there is a mistake committed by the petitioners/impleading applicants before the trial Court in non-production of these documents to establish that they are the absolute owners of the property to an extent

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of 3 acres, which is shown as item No.2 out of the 5 acres

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15 guntas. Therefore, when the petitioner's/impleading

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applicant's properties are included in the suit, the petitioners/impleading applicants are proper and necessary parties to the proceedings. But fairly, he admits that these documents were not placed before the trial Court. Therefore in view of the production of these documents before this Court, he seeks impleadment of the petitioners/impleading applicants before the trial Court and being open to the respondents/plaintiffs to file the objections and contest the matter on merits and permit the petitioners herein to contest their case so far as it relates to 3 acres of item No.2 of the suit schedule property. Accordingly, he seeks to allow the petition.

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Per contra, learned counsel appearing for the

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respondents /plaintiffs contends that there is no illegality or perversity in the order passed by the trial Court in dismissing the application, as the petitioners herein did not produce a single piece of document or any records to show how they are owners and how they are entitled to be impleaded in the suit filed by the plaintiffs for partition. It

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is only before this Court that these documents are produced. Therefore, no fault can be found by the impugned order of the trial Court for not having produced the relevant documents that are now sought to be produced and seeking an order to permit him to be impleaded in the suit proceedings.

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Learned counsel for the respondents/plaintiffs further fairly submits that the petitioners/impleading applicants ought to have produced these documents before the trial court. Having not done so, the impugned order does not call for interference.

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Having heard learned counsel for the petitioners/impleading applicants and

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respondents/plaintiffs and having produced these three documents of registered sale deeds of the years 1932, 1945 and 1968, which apparently show that the petitioners/impleading applicants have succeeded to 3 acres of the land, having inherited the same from one

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Kullapa, who had purchased it from one Sri. Karigowda S/o Giddegowda having purchased the same from one Sri. Dhyavagowda/Deva Shetty.

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Under the circumstances, apparently there is some justification in the application made by the petitioners/impleading applicants and the documents which are produced today before this Court to show that the petitioners/impleading applicants may have some semblance of right so far as the property pertaining to 3 acres in Survey No.16 in item No.2 of the suit schedule property. However, the same will have to be decided in

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the trial upon the respondents objecting and contesting the same.

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Nevertheless, when an application is filed

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under Order I Rule 10 read with Section 151 of CPC, the necessary requirement is whether the person is sought to

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be impleaded as a proper and necessary party. In the present case on hand, since item No.2 of the suit schedule

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property shows 5 acres 15 guntas out of which petitioners

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claim to have purchased 3 acres in the same survey number, it would be necessary and proper for the petitioners to be impleaded and provided an opportunity to defend the case filed by the respondents/plaintiffs. At the same time, I do not find any perversity or illegality in the order passed by the trial Court. But in view of the fact that the documents are now placed before this Court, instead of referring the matter back to the trial Court for consideration, this Court deems it appropriate to allow the application and direct the trial Court to implead the petitioners as parties to the suit proceedings and permit them to contest the suit on its merits. Accordingly, I pass the following order.

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ORDER

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The petition is disposed of.

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The impugned order passed by the trial Court dated 27.06.2024 on IA filed under Order 1 Rule 10 of CPC

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is hereby allowed. The order would have to be set aside in

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view of the documents presented before this Court regarding the sale deeds of the years 1932, 1945 and 1968 which were not produced before the trial Court.

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Petitioners are permitted to be impleaded as parties to the suit proceedings.

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All contentions of the respondents are kept

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open.

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It is made clear that this Court has not

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expressed any opinion on the merits of the matter including title and ownership except for the purpose of impleading the petitioners to the suit proceedings.

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6. Ordered accordingly.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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RCK List No.: 1 Sl No.: 12

Smt Chandramma v. K M Mahadevegowda

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Smt Chandramma v. K M Mahadevegowda

Case brief

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