Sri G Prem Kumar Vs Smt Kamalamma

This writ petition under Article 227 of the Constitution of India is filed with a prayer to set-aside the order dated 15.03.2023 passed on IA No.46 in OS No.325/2014 by the Court of Civil Judge (Sr. Dn.) and JMFC, Magadi.

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Heard the learned counsel for the parties.

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OS No.37/2011 was filed by respondent No.1 herein

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before the Civil Judge (Jr. Dn.) Ramanagara and the same was subsequently, renumbered as OS No.325/2014 on being transferred to the Court of Civil Judge (Sr.Dn.), at Magadi, seeking the relief of declaration and permanent injunction. In the said suit, the contesting defendants have filed written statement opposing the suit claim. IA No.46 was filed by the petitioner herein in OS No.325/2014 to implead him as party defendant to the suit. The said application was opposed by the plaintiff by filing objections. The Trial Court vide the order

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impugned has rejected the said application and therefore, the petitioner is before the Court.

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Learned counsel for the petitioner having reiterated the

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grounds urged in the petition submits that Item No.2 suit schedule property belongs to the family of Narasimhe Gowda. In the plaint, it is wrongly claimed that Eramma, wife of Sanjeeva Gowda, who is the son of Narasimhe Gowda, was the absolute owner of the said property and plaintiff is claiming right over the said property through a Will said to have been executed by aforesaid Eramma. He submits that the legal heirs of Narasimhe Gowda, who have been disputing the title of the plaintiff over the property in dispute have been arrayed as defendant Nos.5 to 13 in the suit. Defendants, who have filed their written statement have also specifically raised a contention that the property in question originally belonged to Narasimhe Gowda and not to Naganna, who is the father of Eramma. He submits that Sanjeeva Gowda and his brother Narasappa have executed two documents in favour of the mother of the petitioner, creating right over the property in

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question. Mother of the petitioner is no more. Therefore, the petitioner becomes a necessary party to the suit.

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Per contra, learned counsel for respondent No.1 has opposed the prayer made in the petition. He submits that petitioner is claiming an independent right over the property in question and therefore, it is for him to initiate appropriate proceedings before the appropriate Court seeking appropriate relief. In the present suit, he cannot be said to be a necessary party as he is claiming as a legal heir of Narasimhe Gowda. The property belongs to Eramma, who is the daughter-in-law of Narasimhe Gowda. He submits that the suit is at the stage of arguments and the application is filed belatedly and therefore, the Trial Court was fully justified in rejecting the application.

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Respondent No.1 has filed OS No.325/2014 (Old No.37/2011) before the jurisdictional Civil Court at Magadi, seeking the relief of declaration and permanent injunction. In the plaint, it is averred that the defendant No.1 is the grandson of Narasimhe Gowda. Narasimhe Gowda had two wives and father of defendant No.1 Narase Gowda, namely Lakshmana Gowda, was the son born to Narasimhe Gowda through his

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second wife Lakshmi Narasamma. Defendant Nos.2 and 3 are the sons of defendant No.1. Defendant No.4 is the purchaser of Item No.1 in the suit schedule property. Defendant Nos.5 to 13 are the other legal heirs of Narasimhe Gowda who have been disputing the right of the plaintiff over the suit schedule property and therefore, defendant Nos.5 to 13 have been arrayed as party defendants in the suit. From the aforesaid, it is apparent that the defendants in the suit are all legal representatives of late Sri Narasimhe Gowda under whom even the petitioner is claiming. According to the petitioner, Sanjeeve Gowda and Narasappa, sons of Narasimhe Gowda, born to his first wife - Nagamma, have executed certain documents in favour of his mother, creating right over the suit schedule properties and therefore, he is a necessary party.

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It is relevant to note here that the defendants who have filed written statement in the suit have specifically contended that the suit schedule property belongs to Narasimhe Gowda and Eramma, under whom the plaintiff claims right and title over the suit schedule property. Undisputedly, the other legal heirs of Narasimhe Gowda are arrayed as defendants in the

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suit. So far as the petitioner is concerned, he is not only a legal

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heir of late Narasimhe Gowda but he also claims right over the property in question under certain documents said to have been executed by late Narasappa and late Sanjeeve Gowda, sons born to Narasimhe Gowda through his first wife - Nagamma. Eramma under whom the plaintiff claims right is the wife of Sanjeeve Gowda.

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The Trial Court has rejected the application with an observation that petitioner has already filed a suit and he can exhaust his remedy in the said suit. Learned counsel for the petitioner has submitted that petitioner has not filed any other suit and the submission made by learned counsel for the petitioner is not seriously disputed by the learned counsel for the respondents. Under the circumstances, I am of the opinion that the Trial Court was not justified in rejecting IA No.46 filed by the petitioner under Order I Rule 10 of CPC. The presence of the petitioner in the suit becomes necessary for the purpose of proper adjudication of the dispute involved in the suit, since the plaintiff has sought the relief of declaration of title in respect of the suit schedule property based on the Will said to have been

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executed by Eramma. The said Eramma is the wife of Sanjeeve Gowda, under whom the petitioner claims right through his mother over the suit schedule property. Therefore, I am of the opinion that the order impugned cannot be sustained. Accordingly, the following order:-

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The writ petition is allowed. The order dated 15.03.2023 passed on IA No.46 in OS No.325/2014 by the Court of Civil Judge (Sr. Dn.), Magadi, is set-aside and consequently, the prayer made in IA No.46 stands allowed.

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It is needless to state that since the suit is of the year 2011, the Trial Court shall make endeavours to expedite the trial and dispose off the suit on merits as expeditiously as possible.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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DN

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List No.: 1 Sl No.: 11

Sri G Prem Kumar v. Smt Kamalamma

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Sri G Prem Kumar v. Smt Kamalamma

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