Karnataka High Court

Siddappa S/O Shankrappa Marlappanavar vs Thippeshappa S/O Mariyappa ... on 7 August, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                               NC: 2024:KHC-D:11205
                                                            MSA No. 100105 of 2023




                          IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 7TH DAY OF AUGUST 2024                  R
                                               BEFORE

                      THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

                          MISCELLANEOUS SECOND APPEAL NO. 100105 OF 2023
                     BETWEEN:

                     SIDDAPPA S/O. SHANKRAPPA MARLAPPANAVAR,
                     AGE: 69 YEARS, OCC: AGRICULTURE,
                     R/O: KUPPELUR, TQ. RANEBENNUR,
                     DIST: HAVERI -581115.

                                                                       ...PETITIONER
                     (BY SRI. N. P. VIVEKMEHTA, ADVOCATE)

                     AND:

                     1.   THIPPESHAPPA S/O. MARIYAPPA BEERANNAVAR,
                          AGE: 69 YEARS, OCC: AGRICUTLURE,
                          R/O: KUPPELUR, TQ: RANEBENNUR,
                          DIST: HAVERI - 581115.

                     2.   SMT. LAKSHMIDEVI W/O. THIPPESHAPPA
                          BEERANNANAVAR,
                          AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
                          R/O: KUPPELUR, TQ: RANEBENNUR,
         Location:
BHARATHI HIGH
HM       COURT OF
         KARNATAKA
                          DIST: HAVERI - 581115.

                     3.   PRADEEP S/O. THIPPESHAPPA BEERANNANAVAR,
                          AGE: 34 YEARS, OCC: EMPLOYEE,
                          R/O: KUPPELUR, TQ: RANEBENNUR,
                          DIST: HAVERI - 581115.
                          NOW AT PLOT NO. 401, KRISHNAPRIYA
                          CONVENTIONAL HALL, UTTARAHALLI,
                          MAIN ROAD, BENGALURU.
                                                                 ...RESPONDENTS
                     (R1-SERVED;
                     BY SRI. DINESH M. KULKARNI, ADVOCATE FOR R2 AND R3)
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                                            NC: 2024:KHC-D:11205
                                        MSA No. 100105 of 2023




      THIS MSA FILED U/OR. 43 RULE (U) OF CPC., PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE OF III ADDITIONAL SENIOR
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
RANEBENNUR DATED 05.06.2023 PASSED IN R.A. NO.16/2020 BY
ALLOWING APPEAL AND RESTORE THE JUDGMENT AND DECREE OF
THE COURT OF THE PRINCIPAL CIVIL JUDGE AND IST ADDITIONAL
JUDICIAL MAGISTRATE FIRST CLASS, RANEBENNUR, DATED
02.07.2019 PASSED IN O.S.NO.220/2017, BY ALLOWING THIS
APPEAL.
     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

CORAM:     THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

                        ORAL JUDGMENT

This appeal is filed by the appellant -plaintiff praying

to set aside the judgment and decree dated 05.06.2023

passed in RA No.16/20 by the III Additional Senior Civil

Judge and JMFC, Ranebenur to restore the judgment and

decree passed in O.S.No.220/2017 by the Principal Civil

Judge and I Additional JMFC, Ranebennur dated

02.07.2019.

2. The appellant was plaintiff and respondent No.1

was defendant in O.S.No.220/2017 filed for relief of

specific performance of agreement of sale dated

25.03.2015. Respondent Nos.2 and 3 are wife and son of

respondent No.1 who made an application before the

NC: 2024:KHC-D:11205

Appellate Court seeking their impleadment as defendant

Nos.2 and 3. The appellant filed O.S.No.220/2017 praying

for relief of specific performance registered agreement of

sale dated 25.03.2015 against respondent No.1 -

defendant. The respondent No.1 -defendant contested

the said suit. The trial Court after recording evidence on

both sides and appreciating evidence on record has

decreed the suit of the plaintiff with cost. The said decree

passed in O.S.No.220/2017 has been challenged by

respondent No.1 -defendant in RA No.16/2020 before the

III Additional Senior Civil Judge and JMFC, Ranebennur.

In the said appeal respondent Nos.2 and 3 made an

application under Order 1 Rule 10(2) read with Section

151 of CPC praying to implead them as parties to the suit.

They also made an application under Order 41, Rule 27

read with Section 151 of CPC seeking production of

documents. The Appellate Court after hearing appellant,

respondent No.1, impleading applicants i.e. respondent

NC: 2024:KHC-D:11205

Nos.2 and 3 has formulated the following points for

consideration

Point No.1: Whether the applicants are necessary parties to the suit?

Point No.2: Whether the appellants have shown sufficient cause for production of documents?

Point No.3: Whether the trial court wrongly appreciated evidence and wrongly decreed the suit for specific performance?

Point No.4: Whether the interference of this Court is warrant?

Point No.5: What order or decree?

3. The Appellate Court considering the decree

passed in O.S.No.90/2017 that respondent Nos.2 and 3

are having share in the suit property allowed their

applications and answered points Nos.1, 2 and 4 in the

affirmative and set aside the decree passed in

O.S.No.220/2017 and remanded the matter to the trial

Court with directions to implead respondent Nos.2 and 3

as defendant Nos.2 and 3 and directed to provide

opportunity to file written statement, framing issues

NC: 2024:KHC-D:11205

thereof and giving opportunity to parties to lead evidence

afresh and to decide the matter in accordance with law.

The said order of remand has been challenged by the

appellant -plaintiff in this appeal.

4. Heard learned counsel for the appellant -

plaintiff, learned counsel for respondent Nos.2 and 3 and

inspite of service of notice, respondent No.1 remained

absent and unrepresented.

5. Learned counsel for the appellant -plaintiff

would contend that respondent Nos.2 and 3 are not

necessary parties in the suit filed by the appellant -

plaintiff seeking relief of specific performance as they are

not parties to the sale agreement. The suit filed by

respondent Nos.2 and 3 in O.S.No.90/2017 seeking

partition is collusive suit between respondent Nos.1 to 3 to

deprive the rights of the appellant. The said suit has been

filed only in respect of said suit property even though

there are other two properties belonging to the joint

NC: 2024:KHC-D:11205

family, the RTC of which is at Ex.P5 and Demand Register

extract is at Ex.P6. The defendant No.1 -respondent No.1

has contested the suit and he has taken up his defence as

property belongs to joint family property. On considering

all those aspects the trial Court has decreed the suit.

Even, the decree passed in O.S. No.90/2017 has been

produced at Ex.D1. Respondent Nos. 2 and 3 are not

necessary parties, even in their absence effective decree

can be passed as sought by the appellant -plaintiff. He

placed reliance on the decision of the Hon'ble Apex Court

in the case of Gurumith Singh Bhatia V. Kiran Kant

Robinson and Ors1. He further contended that even

though if property is considered to be joint family property

respondent No.1 -defendant being kartha of the family

has right to alienate the property of the joint family for

legal necessity. On that point he placed reliance on the

following decisions

AIR2019 SC 3577

NC: 2024:KHC-D:11205

1) Luhar Amritlal Nagaji V/s Doshi Jayantilal2

2)Bechan Pande and Others Vs Dulhin Janaki Devi and others 3

3) Shubodh Kumar and others Vs Bhagavanth Namdeorao Mehetri and Others4

6. He contends that remedy of respondent Nos.2

and 3 is elsewhere they cannot seek their impleadment in

the suit for specific performance to enlarges scope of suit

for a title. On these grounds he prayed that setting aside

the impugned order of remand passed by the Appellate

Court and prays to remand the matter to the Appellate

Court for considering appeal on merits.

would contend that issue No.1 framed in the suit is

whether the defendant is absolute owner of the suit

scheduled property, and therefore, respondent Nos.2 and

3 being members of joint family of respondent No.1 -

defendant are necessary parties to the suit. Respondent

AIR 1960 SC 964

(1976) 2 SCC 286

(2007) 10 SCC 571

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Nos. 2 and 3 have filed a suit in O.S.No.90/2017 seeking

partition in the suit property and same came to be

decreed. There is decree in respect of suit scheduled

property, whereunder respondent Nos.2 and 3 have been

granted share and they are necessary parties to suit for

specific performance as they have interest/share in the

suit property. Respondent Nos.2 and 3 are declared as

sharers in the suit schedule property in the partition suit.

Considering the said aspect the first Appellate Court has

rightly allowed the application filed by respondent Nos.2

and 3 seeking their impleadment and production of

documents and rightly remanded the matter to the trial

Court for giving opportunity to them to file written

statement and to lead evidence. With this, he prays for

dismissal of the appeal.

8. Having heard learned counsels, this Court has

perused the impugned order and material placed on

records.

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9. The only question that arise for consideration is:

"Whether respondent Nos.2 and 3 are necessary parties in the suit filed by the appellant -plaintiff seeking relief of specific performance of agreement of sale executed by respondent No.1 -defendant infavour of the appellant -plaintiff?"

The answer to the above point is in the negative for

the following reasons.

The suit filed by the appellant -plaintiff in

O.S.No,.220/2017 on the file of the Principal Civil Judge

and I Additional JMFC, Ranebennur is for the relief of

specific performance of registered agreement of sale dated

25.03.2015 executed by respondent No.1 -defendant

infavour of the appellant -plaintiff. The defendant has

stated to have executed registered sale agreement

infavour of the appellant -plaintiff. Respondent Nos.2 and

3 are not parties to the said sale agreement. The said sale

agreement is executed in respect of property bearing

Sy.No.129/3 measuring 04 acres situated at Kuppeluru

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NC: 2024:KHC-D:11205

village, Ranebennuru Taluk and Haveri District. The said

property is standing in the name of respondent No.1 -

defendant and RTC of the said property is at Ex.P2. In

legal notice -Ex.P3 it is stated that respondent No.1 -

defendant is the owner and in possession of the said

property bearing Sy No.129/3 measuring 04 acres. In the

plaint it is averred that respondent No.1 -defendant in

order to meet his family necessity and to purchase another

property agree to sell the said property to the appellant -

plaintiff and executed the sale agreement dated

25.03.2015.

10. The said suit has been contested by respondent

No.1 -defendant by filing written statement wherein he

has taken several defences including defence that the suit

property is ancestral property. Respondent No.1 -

defendant has produced certified copy of decree passed in

O.S.No.90/2017 at Ex.D.1. Respondent No.1 -defendant

who was defendant No.1 in the said suit in

O.S.No.90/2017, has remained exparte and has not

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contested suit. Inspite of that he has produced the decree

passed in O.S.No.90/2017 which is marked at Ex.D.1. The

said suit has been filed only in respect of suit scheduled

property bearing Sy.No.129/3 measuring 04 acres.

Respondent No.1 -defendant who has been examined as

D.W.1 has admitted in his cross examination that there

are other two properties belonging to the joint family and

they are SY No.24/1/1A/B measuring 05 acres and house

property bearing VPC No.177 and documents pertaining to

them are produced at Ex.P5 and Ex.P6. Considering the

said aspects even though there are other properties of the

joint family, the suit has been filed by respondent Nos.2

and 3 only in respect of suit property bearing Sy No.129/3

measuring 04 acres.

11. Ordinarily a plaintiff to a suit is dominus litis. It

is for him to decide the Forum where the suit is to be

instituted and the persons, who have to be impleaded as a

party. His choice as to the place of institution of the suit or

the parties to it can only be altered or interfered with by

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NC: 2024:KHC-D:11205

the Court under powers given to it by the statute. A party

to a suit cannot be thrust on an unwilling plaintiff, unless

otherwise provided by law.

12. In a suit for specific performance, the parties to

the contract are the only necessary parties to the suit. To

this general rule, an exception has been engrafted and

that is to the effect that if a person is in possession of a

property in respect of which a suit for specific performance

is filed, he should also be impleaded as a party thereto if

he claims a title adverse to the vendor. This exception is

based on the principle that the plaintiff of the suit will

ultimately obtain possession against the person who is in

actual possession of the property and claims a title

adverse to the vendors. If such person is also brought on

record and given a chance to contest the suit, there is no

likelihood of inconvenience to the purchaser and

multiplicity of legal proceedings is also avoided.

13. The interveners-applicants namely respondent

Nos.2 and 3 claim to be members of a joint Hindu Family

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NC: 2024:KHC-D:11205

along with original defendant. Their case was that the

property in respect of which the plaintiff had filed the suit

for specific performance is joint family property. In case,

the intervener-applicants prayer for impleadment had

been allowed, the result would have been to convert the

lis as a dispute between the defendants inter se. At all

events the controversy in the suit would have been

unnecessarily enlarged by the introduction of facts with

which the plaintiff would have no direct concern.

14. The test of preventing multiplicity of suits will,

therefore, result in the obnoxious consequence of

converting a suit for specific performance into a roving

inquiry into diverse claims against the defendant to the

suit. True it is that the Courts have pointed out that the

policy of law is to avoid multiplicity of legal proceedings.

The dictum, however, is not a rule of universal application

and has to be applied within the four corners of the statute

governing jurisdiction and procedure.

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15. In a suit for specific performance of contract of

sale of joint property, the presence of strangers including

the co-owners or coparceners is not necessary inasmuch

as, they are not concerned with the relief sought or the

defences raised. The most important thing that protects

right of such strangers is that the judgment in such cases

is not binding on them. In such suit the Court is called

upon to address itself to the relevant issues like the

execution of the agreement to sell and its violation. Since

such an agreement is executed between the two parties,

they are the only necessary parties and any dispute will be

found existing only between them. Hence adjudication of

such issues will be binding on the parties involved in the

suit and not others including the co-owners. Hence even if

such parties are excluded from being impleaded in the

suit, no prejudice is caused.

16. What a plaintiff would get if he succeeds in

getting a decree for specific performance is a sale-deed

which will bind only the executants of the sale, namely,

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defendant and would not affect the position of the sons or

their rights if any to these properties. The rights of the

wife and son to these properties are not a question

involved in the suit and it is therefore, not necessary that

they should be made parties.

17. The plaintiff-appellant is willing to take such

title as the vendors, that is, defendant could pass in his

favour. The Appellate Court states to avoid multiplicity of

suits the addition of parties might be allowed. In an

application under Order 1 Rule 10 CPC, the Court should

consider mainly whether the presence of the proposed

parties would be necessary for adjudicating upon the

questions that are involved in the suit and an order for

addition of parties should not be made merely with a view

to avoid multiplicity of suits if otherwise their presence is

not necessary for determining the real questions involved

in the suit. In a simple suit for specific performance like

the present one filed against the vendor, the wife and son

of the vendor are not necessary parties.

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18. In Gurumith Singh Bhatia V. Kiran

Kant(Supra) relied upon by the learned counsel for the

appellant -plaintiff, the Hon'ble Apex Court has observed

that

"In view of the principle that the plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsion of the rule of law."

19. In the Full Bench decision of the Madhya

Pradesh High Court in the case of Panne Khushali vs

Jeewan Lal Matho5 interveners sought to be joined as

parties in a suit for specific performance on the ground

that they were members of a joint Hindu family and were

interested in subject matter of the suit. The Full Bench of

the Madhya Pradesh High Court, after careful examination

of the various decisions of different Courts, came to the

conclusion that interveners were neither necessary parties

nor proper parties. They could not be given benefit of

AIR 1976 MP 148 (FB)

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