Karnataka High Court

Sri Marina Pinto vs Smt Jayamma on 4 March, 2024

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                                                       NC: 2024:KHC:9047
                                                    WP No. 55213 of 2018




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 4TH DAY OF MARCH, 2024

                                           BEFORE
                          THE HON'BLE MR JUSTICE R. NATARAJ
                      WRIT PETITION NO. 55213 OF 2018 (GM-CPC)
               BETWEEN:
               SRI. MARINA PINTO
               D/O LATE KAMIL PINTO,
               R/AT 298, "ASHIRWAD",
               10TH MAIN, III CROSS, III STAGE,
               MANJUNATHANAGAR,
               BENGALURU-560 010
                                                             ...PETITIONER
               (BY SRI. K. DIWAKAR, ADVOCATE)

               AND:
               1.    SMT. JAYAMMA
                     W/O LATE RAMAKRISHNAPPA,
                     AGED ABOUT 70 YEARS,

               2.    SMT. HONNAMMA
                     D/O LATE RAMAKRISHNAPPA,
                     AGED ABOUT 54 YEARS,
Digitally
signed by BS   3.    SMT. MANGALAMMA
RAVIKUMAR            D/O LATE RAMAKRISHNAPPA,
Location:            AGED ABOUT 52 YEARS,
HIGH
COURT OF
KARNATAKA      4.    SRI. NAGARAJU
                     S/O LATE RAMAKRISHNAPPA,
                     AGED ABOUT 50 YEARS,

               5.    SRI. KUMAR
                     S/O LATE RAMAKRISHNAPPA,
                     AGED ABOUT 45 YEARS,

                     THE RESPONDENT NOS.1 TO 5
                     ARE RESIDING AT NO.21,
                     KOTE KENGERI, BANGALORE-60
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                                    WP No. 55213 of 2018




6.   SMT. FATHIMA
     W/O LATE ABDUL JABBAR,
     AGED ABOUT 80 YEARS,

7.   SMT. KHURSEED
     W/O LATE CHANDPASHA,
     AGED ABOUT 45 YEARS,

8.   SRI. IMRAN
     S/O LATE CHANDPASHA,
     AGED 23 YEARS,

9.   SMT. RESHMA
     D/O LATE CHANDPASHA,
     AGED 21 YEARS,

10. FOUZIA
    D/O LATE CHANDPASHA,
    AGED 19 YEARS,

     RESPONDENT NOS.6 TO 10
     ARE RESIDING AT NO.101,
     5TH CROSS, SHAMANNA GARDEN,
     BANGALORE-560 026.

11. SRI. SHATAJ
    S/O LATE ABDUL JABBAR,
    AGED 40 YEARS,

12. SRI ASLAM
    S/O LATE ABDUL JABBAR,
    AGED 37 YEARS,

13. SRI BAKASH
    S/O LATE ABDUL JABBAR,
    AGED 32 YEARS,

14. SRI AFZAL
    S/O LATE ABDUL JABBAR,
    AGED 28 YEARS

     RESPONDENT NOS.11 TO 14
     ARE RESIDING AT NO.75,
     6TH CROSS, PADARAYANAPURA,
     BANGALORE-26
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                                   WP No. 55213 of 2018




15. SMT. AZEERA BEE
    W/O LATE ABDUL GAFFAR,
    AGED 45 YEARS,

16. SRI BABU
    S/O LATE ABDUL GAFFAR,
    AGED 26 YEARS,

17. SMT. PRAVEEN
    D/O LATE ABDUL GAFFAR,
    AGED 28 YEARS,

18. SMT. FARIDA
    D/O LATE ABDUL GAFFAR,
    AGED 24 YEARS

19. SMT. ABIDA
    D/O LATE ABDUL GAFFAR,
    AGED 22 YEARS

    RESPONDENT NOS.15 TO 19
    ARE RESIDING AT LAYARAPALYA,
    NAYANDAHALLI,
    BANGALORE-39.

20. SMT. SHAKEERA BEE
    W/O LATE ABDUL AZEEZ,
    AGED 50 YEARS

21. SRI. SYED SALEEM
    S/O LATE ABDUL AZEEZ,
    AGED 34 YEARS,

22. SRI. SYED SHIRAJ
    S/O LATE ABDUL AZEEZ,
    AGED 20 YEARS

23. SMT. SHABANA
    D/O LATE ABDUL AZEEZ,
    AGED 27 YEARS

24. SMT. MUBINA
    D/O LATE ABDUL AZEEZ,
    AGED 25 YEARS
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                                     WP No. 55213 of 2018




25. SMT. MAAJAN BEE
    W/O LATE SYED ZALEEL,
    D/O LATE NABI SAB,
    AGED 62 YEARS

26. SRI. SYED ANSAR
    S/O LATE SYED ZALEEL,
    AGED 32 YEARS,

27. SRI. SYED AFSAR
    S/O LATE SYED ZALEEL,
    AGED 30 YEARS,

28. SRI. SYED AFZAL
    S/O LATE SYED ZALEEL,
    AGED 24 YEARS,

29. SMT. KAUSAR
    D/O LATE SYED ZALEEL,
    AGED ABOUT 22 YEARS,

    THE PETITIONER NOS.20 TO 29
    ARE RESIDING AT NO.26,
    B MAIN ROAD, 9TH BLOCK,
    JAYANAGAR, BANGALORE-69

                                               ...RESPONDENTS
(BY SRI. V.B. SHIVA KUMAR, ADVOCATE FOR RESPONDENT NOS.1
TO 5;
VIDE ORDER DATED 16.08.2022 SERVICE OF            NOTICE     TO
RESPONDENT NOS.6 TO 29 IS DISPENSED WITH)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
24.08.2018 ONE PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE,
BANGALORE   RURAL   DISTRICT,   BANGALORE    ON   I.A.NO.7   IN
O.S.NO.1742/2006 FOUND AT ANNEXURE-F TO THE WRIT PETITION.

     THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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                                                    WP No. 55213 of 2018




                                   ORDER

This writ petition is filed challenging an order dated

24.08.2018 passed by Principal Senior Civil Judge, Bengaluru

Rural District, Bengaluru (henceforth referred to as 'Trial

Court') in O.S.No.1742/2006, by which an application

(I.A.No.7) filed under Order XXII Rule 10 of CPC was

dismissed.

2. The suit in O.S.No.1742/2006 was filed for the

following reliefs:-

(i) To pass a judgment and decree declaring that the Plaintiffs are the joint and absolute owners of the suit schedule property having inherited the same from Sri. Nabi Sab;

(ii) To grant an order of permanent injunction restraining the Defendant from interfering with the Plaintiffs' peaceful possession and enjoyment of the suit schedule property; and

(iii) To grant such other order or orders as this Hon'ble Court deems just and necessary in the circumstances of the case and to award cost of the suit.

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3. The suit was contested by the defendants. When

the suit was listed for recording the evidence of the parties, an

application was filed under Order XXII Rule 10 of CPC by the

petitioner herein contending that he had purchased the suit

schedule property from the plaintiffs on 03.11.2014. He

therefore, contended that he was an assignee of the interest of

the plaintiffs in the suit schedule property and therefore, was

entitled to pursue the suit. He therefore, prayed that he be

impleaded in the proceedings as additional plaintiff.

4. This application was objected by the defendants,

who claimed that the petitioner was a pendete lite purchaser,

who had purchased the suit schedule property so as to deprive

the right of the defendants in the suit schedule property. They

contended that the plaintiffs have no absolute right to sell the

suit schedule property and therefore, the sale deed executed in

favour of the petitioner was not binding upon them.

5. The Trial Court held that the petitioner had

purchased the suit schedule property during the pendency of

the suit and that Section 52 of the Transfer of Property Act,

1882 prohibited alienation of the property during the pendency

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of the proceedings. Therefore, it held that the purchase of the

suit schedule property by the petitioner was hit by law of lis

pendens and therefore, dismissed the application filed by the

petitioner herein under Order XXII Rule 10 of CPC.

6. Being aggrieved by the said order, the petitioner

has filed this writ petition.

7. The learned counsel for the petitioner submits that

the petitioner is an assignee of the interest of the plaintiffs in

the suit schedule property and therefore, he is entitled to come

on record and pursue the suit and claim the reliefs, to which

the plaintiffs were entitled to. He submits that even if the

petitioner was pendente lite purchaser, that does not deprive

him from pursuing the suit, as what will be claimed by him is

only the interest of the plaintiffs in the suit schedule property

and nothing else. He submitted that the petitioner is entitled to

come on record as he was an assignee of the interest of the

plaintiffs. In this regard, he relied upon the judgment of the

Hon'ble Apex Court in the case of Thomson Press (India)

Limited vs. Nanak Builders and Investors Private Limited

and others [(2013) 5 SCC 397] and contended that when

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the petitioner had purchased the suit property under the

registered instrument, he is entitled to come on record as an

assignee.

8. The learned counsel for the respondent Nos.1 to

5/defendants did not dispute the fact that the petitioner was a

pendente lite purchaser of the suit schedule property.

9. If that be so, the petitioner is an assignee of the

interest of the plaintiffs in the suit schedule property in view of

under Order XXII Rule 10 of CPC, which reads as follows:-

"10. Procedure in case of assignment before final order in suit.--(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)."

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10. As rightly contended by the learned counsel for the

petitioner, he is entitled to pursue the suit to claim reliefs that

the plaintiffs were entitled to and nothing beyond. Therefore,

the impugned order passed by the Trial Court rejecting the

application filed by the petitioner on the premise that the

purchase was made during the pendency of the suit, is not

justified and deserves to be interfered with. The Trial Court

seems to have lost sight of the fact that Section 52 of the

Transfer of Property Act, 1882 does not prohibit the alienation

but makes such alienation subservient to the decree that may

be passed.