Sri.A. Subbarayappa vs Smt. S.Sujathamma
2022 Latest Caselaw 8669 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF JUNE, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        WRIT PETITION NO.6834 OF 2022 (GM-CPC)

BETWEEN:

SRI.A.SUBBARAYAPPA
S/O LATE CHIKKA AVULA KONDAPPA
AGED ABOUT 61 YEARS
R/AT KASSHAPURA VILLAGE
KASABA HOBLI
BAGEPALLI - 561207

                                        ...PETITIONER

(BY SRI.MANJUNATHA S.V., ADVOCATE)

AND

1.     SMT.S.SUJATHAMMA
       W/O S.M.KRISHNAPPA
       D/O LATE CHIKKA AVULAKONDAPPA
       AGED ABOUT 46 YEARS
       R/AT SOMESHWARA VILLAGE
       SOMENAHALLI HOBLI
       GUDIBANDE TALUK
       CHIKKABALLAPURA DISTRICT - 561209

2.     SRI.BALAKRISHNA
       S/O LATE CHIKKA AVULAKONDAPPA
       AGED ABOUT 56 YEARS
       R/AT KASHAPURA VILLAGE
       KASABA HOBLI
                               2



     BAGEPALLI TALUK
     DODDABALLAPURA DISTRICT - 561207

3.   SRI.A.ASHOK KUMAR
     S/O LATE CHIKKA AVULAKONDAPPA
     AGED ABOUT 51 YEARS
     R/AT KASHAPURA VILLAGE
     KASABA HOBLI
     BAGEPALLI TALUK
     DODDABALLAPURA DISTRICT - 561207

4.   SRI.M.V.VENKATARAYA REDDY
     S/O LATE DODDAVENKATARAYA REDDY
     AGED ABOUT 75 YEARS
     R/AT MUTUKADAHALLI VILLAGE
     MANDIKAL HOBLI
     CHIKKABALLAPUR TALUK AND DISTRICT - 562101

                                             .....RESPONDENTS

      THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASHING THE IMPUGNED ORDER VIDE ANNEXURE-E
DATED 11TH DAY OF FEBRUARY 2022 PASSED BY THE III
ADDL.     DISTRICT   AND   SESSION   JUDGE    AT
CHIKKABALLAPURA IN R.A.NO.88/2017 DISMISSING THE
I.A.NO.4 AND ETC.,

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:


                       ORDER

The captioned writ petition is filed feeling

aggrieved by the order passed by the Appellate Court

in RA No.88/2017. The Appellate Court has proceeded

to reject the application filed in I.A.No.4 under Order

1 Rule 10 read with Section 151 of CPC.,

2. The plaintiff - respondent No.1 has instituted

a suit in O.S.No.150/2010 claiming her legitimate

share in the suit schedule property. The present

petitioner and other defendants have contested the

suit denying the claim made by respondent No.1. The

Trial Court by judgment and decree dated 27.06.2017

has decreed the suit granting 1/18th share in item

Nos.1 to 5 and 7 and 1/4th share in item No.6. The

proposed respondent No.6 is now sought to be

impleaded on the premises that he is asserting right

and title over the suit item No.6 on the basis of the

registered Gift Deed dated 31.08.2020.

3. Heard learned counsel appearing for the

petitioner and perused the order under challenge.

4. It is trite law that in a partition suit, the

Court is required to examine the nature of the suit

schedule properties and consequently, the entitlement

of share in the suit schedule properties. The suit is

decreed by the Trial Court and the present petitioner

feeling aggrieved by the judgment and decree has

preferred an appeal, which is pending consideration in

R.A.No.88/2017. It appears that there are some

transactions in respect of item No.6. The Regular

Appeal is filed by defendant No.1. Therefore,

defendant No.1 cannot be permitted to expand the

scope of enquiry by seeking impleadment of parties,

who is alleged to have acquired right in pending

proceedings. The learned Judge has rightly rejected

the impleading application. When the preliminary

decree is questioned in an appeal under Section 96 of

CPC., any transfer made will be subject to result of

the appeal. Therefore, the proposed respondent No.5

is not at all necessary party to the present suit on

hand. Learned Judge has rightly rejected the

application. I do not find any error committed by the

Appellate Court while rejecting the application. There

is a lot of ambiguity in the averments made in the

affidavit filed in support of the application under Order

1 Rule 10 of CPC., The averments made in the

affidavit did not indicate as to how the proposed

respondent No.5 is a necessary party. Hence, for the

foregoing reasons, I pass the following;

ORDER

The writ petition is devoid of merits, accordingly, stands dismissed.

Sd/-

JUDGE

NBM