Karnataka High Court
Sri Tilok Chand vs Sri P Narayana on 16 December, 2021
Bench: K.S.Mudagal
W.P.NO.54751/2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
WRIT PETITION NO.54751 OF 2018 (GM-CPC)
BETWEEN:
1. SRI TILOK CHAND
S/O LATE BABU LAL
AGED ABOUT 59 YEARS
2. SRI. KIRAN RAJ
S/O LATE BABU LAL
AGED ABOUT 53 YEARS
3. SRI. MOOL CHAND
S/O LATE BABU LAL
AGED ABOUT 46 YEARS
4. SMT. PAVAN KUMARI
W/O LATE DEVARAJ
AGED ABOUT 46 YEARS
5. SMT. MONA D
D/O LATE DEVARAJ
AGED ABOUT 25 YEARS
6. SMT DIVYA D
D/O LATE DEVARAJ
AGED ABOUT 21 YEARS
ALL ARE R/AT NO.119, ASHOKA ROAD,
LASHKAR MOHALLA,
MYSURU - 570 001
... PETITIONERS
(BY SRI.P.D.SURANA, ADVOCATE )
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AND:
1. SRI P NARAYANA
S/O LATE PUTTAIAH,
SINCE DEAD BY LRS
1 (A) SMT. PADMA NARAYANA,
W/O LATE P NARAYAN
AGED ABOUT 80 YEARS,
R/AT NO.3, NEW NO.165
II CROSS, MANASARA ROAD,
INDIRANAGAR, MYSURU-570 010
1 (B) SMT. VINUTHA RANI
D/O LATE P NARAYAN,
AGED ABOUT 53 YEARS
R/AT NO.3, NEW NO.165,
II CROSS, MANASARA ROAD,
INDIRANAGAR, MYSURU-570010
1 (C) SMT. MAMATHA UMESH
D/O LATE P NARAYAN,
AGED ABOUT 58 YEARS
R/AT NO.1, "CHAND", 5TH MAIN,
PARAMAHAMSA ROAD, YADAVAGIRI,
MYSURU - 570 020
1 (D) SRI.GANESH BABU
S/O LATE P NARAYAN,
AGED ABOUT 63 YEARS,
R/AT NO.4/B, UPSTAIRS,
DURGADEVI TEMPLE STREET,
NAZARABAD MOHALLA,
MYSURU - 570 010
1 (E) SMT. INDUMATI
D/O LATE P NARAYAN,
AGED ABOUT 60 YEARS,
R/AT NO.CH-77, "INDUSRI"
5TH MAIN, SARASWATHIPURAM,
MYSURU - 570 009
2. THE COMMISSIONER
MYSORE URBAN DEVELOPMENT AUTHORITY,
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JHANSILAKSHMI BAI ROAD,
MYSURU - 570 005
3. SMT.ANASUYA
W/O SRI.SUBRAMANYA,
AGED ABOUT 78 YEARS
R/AT NO.1063/102, F-18, 8TH CROSS,
II MAIN, VIDYARANYAPURAM,
MYSURU - 570 008
4. SMT.KAMALAMMA
W/O SRI. NARAYANAPPA,
MAJOR,
R/AT NO.2001/1
ANESAROT BEEDHI,
DEVARAJ MOHALLA,
MYSURU-570 001
5. SMT. LEELAVATHI
W/O LATE N.C.RAME GOWDA,
MAJOR,
R/AT NELAMANE, PANDAVAPURA,
SRIRANGAPATNA TALUK
MANDYA - 571 439
SINCE DEAD BY LR'S
5 (A) SRI.SHIVADATTA
S/O LATE N.C.RAMEGOWDA
AGED ABOUT 61 YEARS
5 (B) SRI.RAVIDATTA
S/O LATE N.C.RAMEGOWDA
AGED ABOUT 51 YEARS
5 (C) SMT.BHAYALAKSHMI
D/O LATE N.C.RAMEGOWDA
AGED ABOUT 59 YEARS
5(D) SMT.DHANALAKSHMI
D/O LATE N.C.RAMEGOWDA
AGED ABOUT 54 YEARS
5(E) SMT.SUBBALAKSHMI
D/O LATE N.C.RAMEGOWDA
AGED ABOUT 51 YEARS
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5(F) SMT.ROHINI
D/O LATE N.C.RAMEGOWDA
AGED ABOUT 49 YEARS
RESPONDENT NOS.5(A) TO 5(F) ARE
RESIDENTS OF NELAMANE VILLAGE
PANDAVAPURA TALUK
MANDYA DISTRICT
6. SRI.P.SUBRAMANYA
S/O LATE PUTTAIAH,
AGED ABOUT 77 YEARS
R/AT NO.365/5
DURGADEVI TEMPLE STREET, NAZARBAD,
MYSURU-570010
... RESPONDENTS
(BY SRI.SHARATH GOWDA G.B., ADVOCATE FOR R2;
SMT.ARCHANA MURTHY P, ADVOCATE FOR R3;
SRI.VINAY N, ADVOCATE FOR
SRI.MANMOHAN P.N. ADVOCATE FOR R6;
VIDE ORDER DATED 20.02.2020 BRINGING LRS OF R4
IS DISPENSED WITH;
VIDE ORDER DATED 20.02.2020 SERVICE OF NOTICE
TO R1(B) HELD SUFFICIENT;
R1(C) AND R1(E) ARE SERVED;
VIDE ORDER DATED 09.02.2021 SERVICE OF NOTICE
TO R1 (A AND D) HELD SUFFICIENT;
VIDE ORDER DATED 15.11.2021 NOTICE TO
R5(C TO F) IS DISPENSED WITH;
R5(A) AND (B) ARE SERVED)
THIS W.P. IS FILED UNDER ARTICL 227 OF
CONSTITUION OF INDIA, PRAYING TO QUASH ORDER DTD
01.11.2018 MADE ON I.A.NO.20 AND I.A.NO.21/2018 IN FDP
NO.27/2005 ON THE FILE OF COURT OF FIRST ADDITIONAL
SENIOR CIVIL JUDGE AND C.J.M. AT MYSURU VIDE ANNX-H.
THIS WP COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
W.P.NO.54751/2018
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ORDER
"Whether the order Annexure-H rejecting the
applications of the petitioners to implead them as co-
respondents in F.D.P.No.27/2005 is arbitrary and
illegal?" is the question involved in this case.
2. Respondent No.6 filed O.S.No.243/1990
before the Principal Senior Civil Judge, Mysuru against
his brother P.Narayana and others for partition and
separate possession of his share in certain properties
shown in schedule A and B in the plaint.
3. This petition is concerned with item No.2 of
schedule-B property in the said suit. Item No.2 is the
site bearing No.294 situated at Siddartha Layout,
Mysuru measuring 40ft. X 80ft. The said suit came to
be decreed on 25.07.2000. The plaintiff and the first
defendant were awarded 7/15th share each and their
sister was awarded 1/15th share in item Nos.1 and 2 of
schedule-B properties.
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4. The plaintiff filed F.D.P.No.27/2005 seeking
final decree in pursuance of the said preliminary decree.
Pending F.D.P.No.27/2005, defendant No.1 died and his
legal representatives were brought on record.
Respondent Nos.1(a) to 1(e) are the legal
representatives of the said P.Narayana.
5. Pending those proceedings, the first
defendant P.Narayana sold property to one
S.R.Nagalakshmi under registered sale deed Annexure-
C dated 19.08.1991. The legal representatives of
S.R.Nagalakshmi in turn sold the said property to one
K.V.Radhakrishna and B.V.Manjunath. The said
K.V.Radhakrishna and B.V.Manjunath sold the property
to petitioner Nos.1 to 3 and their brother Devraj, who is
no more now, under registered sale deed Annexure-E
dated 22.08.2013.
6. It appears having sold that, both decree
holders and judgment debtors in FDP No.27/2005
sought the sale of plaint schedule-B item No.2 property
and to share the proceeds of the same. The fact that
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property was already sold was not brought to the notice
of the trial Court. The trial Court appointed a
Commissioner to auction the said property.
7. The petitioners claim that on the auction
notice published in Star Mysore Newspaper, they came
to know about the order. Therefore, they filed
applications to implead them as respondents in the final
decree proceedings and to defer the auction sale. The
applications were contested by respondent No.6.
8. The trial Court on hearing both side, by the
impugned order rejected the said applications on the
ground that the petitioners are the purchasers pending
lis. The trial Court further held that the remedy of the
petitioners is to initiate separate proceedings to recover
the share of respondent No.1.
9. The main reason for the trial Court to pass
such orders is that sale in favour of the petitioners is hit
by Section 52 of the Transfer of Property Act, 1881 ('the
TP Act' for short). It is no doubt true that since the sale
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in favour of the petitioners is hit by Section 52 of the TP
Act, plea of bonafide purchasers for value without notice
is not open to them. However, the fact remains that
neither respondent No.1 nor the decree holders brought
to the notice of the Court about the sale effected by
respondent No.1 and the subsequent sales.
10. What would be the right of the purchaser
pending lis was dealt with by the Hon'ble Supreme
Court in the following judgments:
1. Thomson Press (India) Ltd Vs Nanak
Builders & Investors P. Ltd1
2. Devendra Kumar Sarewgee Vs Purbanchal
Estates (P) Ltd.2
3. Government of Orissa Vs Ashok Transport
Agency3
11. The ratio of the aforesaid judgments is that
though the purchasers pendente lite cannot claim as of
right to come on record, the Court can exercise
discretion to implead them as parties to the proceedings
to balance the equities. The right of the assignee or
(2013) AIR SCW 1617
(2006) 9 SCC 199
(2005) 1 SCC 536
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purchaser is only confined to the defence of the
vendors. It is held that any decree passed against the
assignors will be binding on the assignee. But it is not
open to the assignee to challenge the decree or widen
the execution of the decree.
12. The petitioners contention is that the decree
holders and their vendors colluded with each other and
have brought only this property for sale to make
wrongful gain for themselves. They seek to come on
record to claim equitable partition as an assignee of
defendant No.1. The petitioners do not claim any other
defence. Therefore, the petitioners have right to come
on record by virtue of Order XXII Rule 10 of CPC and
participate in the proceedings subject to the aforesaid
limitations. The right of the petitioners is limited to that
extent only.
13. In the light of the above said facts and
circumstances and the judgments of the Hon'ble
Supreme Court, it can be said that in rejecting the
application the trial Court acted arbitrarily. The
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impugned order of the trial Court is unsustainable in
law. Therefore, the petition is allowed.
The impugned order Annexure-H dated
01.11.2018 in F.D.P.No.27/2005 is hereby set aside.
I.A.Nos.20 and 21 filed by the petitioners are allowed.
The petitioners shall be impleaded as co-
respondents in F.D.P.No.27/2005. The petitioners are
entitled to seek only equitable partition in respect of
item No.2 of Schedule-B property namely, to allot that
property to the share of their assignor. If there is any
variation in the value of the property, the same shall be
adjusted equitably.
Both submit that since matter is of the year 2005,
the trial Court may be requested to expedite the
disposal of the matter.
In view of the facts and circumstances stated
above, the trial Court is requested to dispose of the
matter as expeditiously as possible at any rate within
six months from the date of receipt of copy of this
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order. Both parties shall co-operate for the early
disposal.
Sd/-
JUDGE
pgg
