Karnataka High Court
Sarala W/O Sakharam Rege vs Venkatesh S/O Vinayak Joglekar on 4 January, 2021
Author: N.S.Sanjay Gowda
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.
:2:
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:
:3:
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
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
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
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*
