Channabasavaiah Vs Mamatha D S

CHANNABASAVAIAH S/O MALLIKARJUNAIAH AGED ABOUT 63 YEARS R/ AT KENKERE HONNAIYANA PALYA VILLAGE, HULIYAR HOBLI, C.N HALLI TALUK, TUMKUR DISTRICT – 572 226

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…PETITIONER

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(BY SRI. VINAYA KEERTHI, FOR SMT. SHRUTHI S. P., ADVOCATES)

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AND:

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Digitally signed by CHANDANA B M Location: High Court of Karnataka

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MAMATHA D. S., W/O K. B. RAMESH AGED ABOUT 60 YEARS, R/A KENKERE VILLAGE, HULIYAR HOBLI, C.N HALLI TALUK, TUMKUR DITRICT – 572 226

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H. M. SHIVAKUMAR S/O MALLIKARJUNAIAH AGED ABOUT 62 YEARS R/A HONNAIAHNA PALYA VILLAGE KENKERE MAJURE, HULIYAR HOBLI, C.N HALLI TALUK, TUMKUR DITRICT – 572 226

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…RESPONDENTS

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THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER DT.09.12.2025 ON

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NC: 2026:KHC:603 WP No. 38735 of 2025

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HC-KAR

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IA-5 (ANNEXURE-E) PASSED BY THE LEARNED ADDL. CIVIL JUDGE AND JMFC, CHIKKANAYAKANAHALLI IN OS NO. 66/2025. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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This petition by the impleading applicant in I.A.No.5 filed in O.S.No.66/2025 on the file of the Addl. Civil Judge and JMFC, Chikkanayakanahalli (for short “the Trial Court”), is directed against the impugned order dated 09.12.2025, whereby the said application filed by the petitioner-impleading applicant to get him impleaded as additional defendant No.2 to the suit was rejected by the Trial Court.

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Heard learned counsel for the petitioner and perused the material on record.

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A perusal of the material on record will indicate that respondent No.1 instituted a suit in O.S.No.66/2025 against respondent No.2 for permanent injunction and other reliefs in relation to the suit schedule immovable property. During the pendency of the said suit, the petitioner-impleading applicant filed the instant application seeking impleadment on the ground of plaintiff’s husband executed Agreement of Sale in his favour and

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HC-KAR

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hence, the petitioner instituted O.S.No.112/2025 against respondent No.1, for specific performance of contract and the petitioner is in possession of the suit schedule property, who was entitled to come on record as additional defendant No.2 to the suit in O.S.No.66/2025. The said application having been opposed by respondent No.1 herein, before the Trial Court, the Trial Court proceeded to pass the impugned order rejecting the application by holding as under:

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“The Applicant has filed this application under Order I Rule 10(2) of CPC praying to implead him as Defendant No.2 in this suit.

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1. In the affidavit annexed to this application, the applicant has contended that he has filed a suit against the plaintiff in OS No.112/2025 for the relief of specific performance and that the plaintiff's husband has executed an agreement of sale dated 09/02/2010 in his favour and also delivered possession to him and since then the applicant is in possession of the suit property. That the plaintiff's husband dies leaving behind the plaintiff and without executing sale deed in his favour, that he has issued legal notice to the plaintiff and her children calling upon them to execute the sale deed in his favour. That he is in possession of the suit property and hence he is a necessary party to this suit and prays to allow the application.

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HC-KAR

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2. Per contra, the plaintiff has filed objections resisting the said application contending that the applicant is not a necessary party to the suit and her husband has not executed any agreement of sale as alleged and that the applicant has concocted certain documents and relying on the same and even then her husband has no authority to execute any agreement of sale as the suit property is an ancestral property. That the plaintiff is in possession of the suit property and since the applicant has already filed the suit in OS No.112/2025, he has the remedy in that suit, but he is not a necessary party in this suit and hence prays to dismiss the application.

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3. Upon hearing both sides and on perusal of materials available on record, the point that arises for the determination of this Court is whether the applicant is a necessary party to this suit?

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4. This Court answered the aforesaid point in Negative for the following:

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REASONS

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5. Admittedly this suit is filed by the plaintiff seeking relief of permanent prohibitory injunction against the defendant by alleging that although he is a stranger to the suit property, has been attempting to interfere with her possession over the suit property. However the claim of this applicant is that the husband of the plaintiff has executed an agreement of sale dated 09/02/2010 under which the possession of the suit property is also transferred to him and he has already

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filed suit for specific performance of the said agreement of sale. The P/c has placed on record a photocopy of the said agreement of sale dated 09/02/2010, on perusal of which the recitals prima facie disclose of the possession of suit property having been transferred to the applicant. However it is pertinent to notice here that the said agreement is an unregistered agreement of sale. It is a well settled proposition of law that as per Section 17(1A), any instrument purporting to be transferred for consideration for the purposes of Section 53 A of the Transfer of Property Act shall be registered and if not registered, shall have no effect for the purposes of Section 53A of the said Act. It means that if a party claims to have been put in possession of the subject property in part performance of contract under an agreement of sale and if he seeks to protect his possession under Section 53A of the Transfer of Property Act, then the said agreement of sale shall be compulsorily registrable. However in the present case, it is prima facie evident that the the agreement relied on by the applicant is unregistered. Furthermore, the applicant claims to have filed suit for specific performance against the plaintiff and her children in OS No.112/2025. When such being the case, he can very well exercise his right to the suit property in the said suit. This suit being one for permanent prohibitory injunction, the plaintiff is the dominuslitus in this case and she could bring suit against the persons who has interfered with her possession over the suit property, in this case being the original defendant. The plaintiff has no grievance against the applicant and just because the applicant has reliefs to claim

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against the plaintiff, he cannot be added in this suit and adjudicate his claims in the suit of the plaintiff at the cost of the plaintiff. Since the applicant has already preferred a suit against the plaintiff, adding him in this suit would lead to complex issues and adjudication of applicants' rights over the suit property at the cost of the plaintiffs rather than adjudicating the dispute between the plaintiff and original defendant. Therefore, this Court opines that the applicant is not a necessary party to this suit. Accordingly point for determination is answered in the Negative, and this Court proceeds to pass the following,

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ORDER

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I.A.No.5 filed by the applicants under Order I Rule 10(2) of CPC is hereby dismissed.”

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A perusal of the material on record will indicate that the Trial Court has assigned cogent and valid reasons in rejecting the impleadment application by noticing that apart from the fact that the plaintiff-respondent No.1 being dominus litus in the suit in O.S.No.66/2025, cannot be compelled to implead petitioner as additional defendant to the suit, when the suit itself was one for permanent injunction simpliciter and since the petitioner had already filed a separate suit in O.S.No.112/2025 seeking specific performance of contract. Under these circumstances, I do not find

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any illegality and infirmity nor can the same is said to have occasioned failure of justice warranting interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, as held by the Apex Court in the cases of Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal – AIR 2021 SC 3443 and Mohamed Ali Vs. V. Jaya & others – (2022) 10 SCC 477 .

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