Rajanna Vs Gowramma

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 17.7.2018 PASSED BY THE LEARNED III ADDITIONAL CIVIL JUDGE, TUMAKURU IN O.S.NO.72/2014 IN IA DECLINING TO ALLOW THE APPLICATION FILED BY THE PETITIONER FOR IMPLEADMENT PRODUCED AS PER ANNEXURE-F TO THE W.P. AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Petitioners being the proposed impleading applicant

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Nos.1 to 4, who sought to implead themselves as defendants in the suit in O.S.No.72/2014 on the file of Senior Civil Judge and JMFC, Tumkur, by filing an application under Order I Rule 10(2) of CPC, which application is rejected by the Trial Court vide impugned order dated 17.07.2018, are before this Court.

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Heard learned counsel for the petitioners appearing through video conference and learned counsel appearing for respondent No.1/plaintiff, in person.

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NC: 2025:KHC:9413 WP No. 33790 of 2018

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The above suit in O.S.No.72/2014 is filed by respondent No.1/plaintiff against respondent Nos.2 to 5, who are defendant Nos.1 to 4 before the Trial Court for relief of partition and separate possession in respect of 19 items of the suit properties. When the suit is set down for recording of evidence of the parties, present petitioners filed the above application seeking to come on record as party/defendants, primarily contending that the suit schedule properties are the joint family properties and in joint possession of the plaintiffs, defendants and the proposed applicants, as there has been no partition taken place. It is urged by the proposed applicants that one Nanjundaiah/propositus had three sons by name Gangaiah, Lakkanna and Basavaraju; that the petitioners/proposed applicants are the children of Gangaiah and Basavaraju. The plaintiff and defendants are the children of Lakanna. The plaintiff and defendants without making petitioners, who are the children of Gangaiah and Basavaraju, as parties had filed suit in

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NC: 2025:KHC:9413 WP No. 33790 of 2018

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respect of the family properties in which the petitioners/ applicants also have right, share, title and interest.

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Application is resisted by the respondent/plaintiff on

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the count that the petitioners/proposed applicants are strangers to the family of the plaintiff and defendants and that they have no share, right, title and interest in the suit properties.

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Trial Court by the impugned order rejected the application on the premise that the petitioners/proposed applicants did not produce any document either to show their relationship between the plaintiffs and the defendants or to show that they are in joint possession of the suit

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properties. The Trial Court further held if at all, the petitioners/proposed applicants have got any right in the suit properties, they have to establish their right by approaching the competent authority and accordingly dismissed the application.

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Learned counsel for the petitioners submits that the defendants 1 and 3 in the written statement have

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7 - NC: 2025:KHC:9413 WP No. 33790 of 2018

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furnished the geneology of the plaintiffs and defendants 1 and 3, in which details of the petitioners herein have been provided. It is submitted that such material being available on record, the Trial Court erred in not taking the same into consideration and has erroneously come to the conclusion that the petitioners/applicants are strangers to the family and that they did not produce any documents. He submits since a specific averment is made by the petitioners/proposed applicants that suit properties are the joint family property and that there is no partition having taken place, the Trial Court ought to have allowed the application.

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On a specific query to the learned counsel for the plaintiff/respondent No.1 herein regarding the relationship, he fairly submits that the petitioners/proposed applicants are the children of said Gangaiah and Basavaraju, who are the other two sons of propositus Nanjundaiah along with plaintiff and defendants, being children of Lakkanna.

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Thus the relationship between the parties stands admitted and established. The next question that may have to be

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NC: 2025:KHC:9413 WP No. 33790 of 2018

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looked into is whether there has been a partition amongst the said three branches of Nanjundaiah.

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Though learned counsel for the respondent

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No.1/plaintiff submits that a partition had taken place in the year 1981 and the revenue records are effected to that

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extent, he submits that there is no deed or document evidencing such partition.

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Be that as it may. Suit is one for partition of joint family properties. Once relationship between the parties is admitted and the source of the suit schedule properties are traced to the common propositus Nanjundaiah, and when a specific contention is urged by the petitioners/

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proposed applicants denying any partition having taken place, it is necessary that they ought to have been allowed to come on record as defendents and only thereafter, matter should have been proceeded with. The impugned order of the Trial Court fails on all these counts.

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Accordingly, the writ petition is allowed. The impugned order dated 17.07.2018 passed by the learned

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NC: 2025:KHC:9413 WP No. 33790 of 2018

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III Additional Civil Judge, Tumakuru in O.S.No.72/2014 is quashed, application filed under Order I Rule 10 of CPC is allowed. Petitioners/applicants are permitted to come on record as defendants in the suit. The Trial Court shall provide an opportunity for the petitioners to file written statement and thereafter, proceed in accordance with law.

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All contentions are kept open to be urged and adjudicated before the Trial Court. The Trial Court shall dispose of the matter as expeditiously as possible within an outer limit of one year from the date of receipt of certified copy of this order.

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Sd/(M.G.S. KAMAL) JUDGE

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NG

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List No.: 1 Sl No.: 24 CT:SNN

Rajanna v. Gowramma

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Rajanna v. Gowramma

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