IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4 T H DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA
WRIT PETITION NO.148873/2020 (GM-CPC)
Between:
1. Sarala W/o. Sakharama Rege,
Age 80 years, Occ: Nil,
R/o.: Rege's Bungalow, Saraswathpur,
Dharwad-580 002.
2. Janaki W/o. Jagadish Rege,
Age 63 yaers, Occ: Housewife,
R/o.: Rege's Bungalow,
Behind Hubli Tollnaka
Saraswathpur, Dharwad-580 002.
3. Amit S/o. Jagdish Rege,
Age 39 years, Occ: Private Service,
R/o.: Rege's Bungalow,
Behind Hubli Tollnaka
Saraswathpur, Dharwad-580 002.
4. Sanjay S/o. Narayan Rege,
Age 33 years, Occ: Nil,
R/o.: Rege's Bungalow,
Behind Hubli Tollnaka
Saraswathpur, Dharwad-580 002.
5. Sanjay S/o.Narayan Rege,
Age 42 years, Occ: Nil,
R/o.: Rege's Bungalow,
Saraswathpur, Dharwad-580 002.
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6. Prasad S/o. Shantaram Rege,
Age 36 years, Occ: Nil,
R/o.: Rege's Bungalow,
Saraswathpur, Dharwad-580 002.
... Petitioners
(By Shri Abhikhek L.Kalled, Advocate)
And:
1. Venkatesh S/o.Vinayak Joglekar,
Age 42 years, Occ: Business,
R/o.: Godbole Wada, Shivaji Road,
Dharwad-580 001.
2. Vasudha W/o. Late Vasudev Rege,
Age major, Occ: Household,
R/o.: Rege Building, Near Toll Naka,
Saraswathpur, Behind L.I.C. Quarters,
Kalaghatagi Road, Dharwad-580 002.
..... Respondents
This writ p etition is filed und er Articles 226 and
227 of the Constitution of India praying to issue a writ
or order or direction in the nature of certiorari to set
aside the annexure-A i.e., impugned order p assed on
I.A.No.3 in O.S.No.231/2018 and I.A.No.3 may kindly
be allowed on the file of II-Add l. Senior Civil Judg e and
JMFC, Dharwad .
This petition coming on for orders, this day, the court
made the following:
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ORDER
1. Since, the matter is taken up for final disposal, the office objections are ig nored .
2. By the impug ned order an application to implead the present petitioners as defend ants has been rejected.
3. Shri Venkatesh, the first respondent herein filed a suit seeking for sp ecific performance of an ag reement of sale that he claimed to have obtained on 20.11.2014 from Vasudev Reg e, the husb and of second respondent.
4. In the said suit, the present petitioners sought to come on record contending that the property which was the subject matter of the ag reement of sale was in fact their ancestral p rop erty and Vasudev Rege could not have executed the ag reement of sale.
5. The trial Court noticed that the prop erty which was the subject matter of the ag reement of sale was in fact one of the items of the properties in resp ect :4: of which a partition had been sought for in O.S. No.274/2006 and the petitioners being defend ants in the said suit could very well agitate their rights in the said suit and they could not seek for impleadment merely because they claimed that it was ancestral property. The trial Court took the view that, in a suit for sp ecific performance a person who is not a p arty to the agreement cannot be considered to be either necessary or a proper p arty.
6. Learned counsel for the petitioner submitted that whatever a cop arcener claims a rig ht in respect of the prop erty which is the subject mater of a suit for specific p erformance, he ought to be made a p arty to the said suit. In support of the said contention, he relied upon the decision rend ered by a Co-ordinate Bench of this Court in A.R. Sharadamm a vs. Krishnegowda and Others rep orted in 2015(4) KCCR 3260.
7. It is not in dispute that a suit in
O.S.No.274/2006 seeking for partition in respect of
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several properties is p ending and the property, which is the subject matter of the ag reement of sale is also includ ed in the said suit. It is also not in disp ute that the p etitioners herein are d efendants in the said suit. In my view, the question as to whether the p roperty is an ancestral prop erty or not would have to be necessarily ad jud icated in O.S.No.274/2006 and the said question cannot be the subject matter of the suit filed by Venkatesh which was a suit seeking for specific performance as an agreement of sale that he claimed to have obtained from Vasud ev Rege.
8. It is needless to state that if the trial Court in O.S.No.274/2006 hold s that the prop erty which was the subject matter of the ag reement of sale was indeed an ancestral property and the defend ants are entitled to a share, obviously the said decree would enure to the benefit of the petitioners notwithstanding the ag reement of sale.
9. It is also need less to state that if Venkatesh obtains a decree in respect of the prop erty, which did :6: not b elong absolutely to his vend or Venkatesh Rege, he would not be entitled to lay an absolute rig ht over the said prop erty.
10. The trial Court was therefore perfectly justified in d ismissing the application for impleadment. The reliance placed by the learned counsel on the judgment rendered in 2015(4) KCCR 3260 can have no application, since in that case there was no partition suit pend ing in respect of the prop erty which was the subject matter of the suit for specific p erformance.
11. I am therefore of the view that there is no merit in the writ petition and the same is accordingly dismissed.
SD/-
JUDGE Vnp*