Karnataka High Court
Smt Pushpa vs Mysuru City Corporation on 6 March, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 19962 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.19962 OF 2023 (GM-CPC)
BETWEEN:
SMT PUSHPA
W/O H.E.GURUDEV,
AGED ABOUT 50 YEARS,
R/AT NO.452, LOKANAYAKA NAGARA,
HEBBALU, DEVARAJA MOHALLA,
MYSURU.
...PETITIONER
(BY SRI. R.S. RAVI, SENIOR COUNSEL FOR
SRI. AKARSH KUMAR GOWDA, ADVOCATE)
AND:
1. MYSURU CITY CORPORATION
REP. BY ITS COMMISSIONER,
MYSURU CITY CORPORATION,
SAYYAJJIRAO ROAD,
MYSURU.
Digitally signed by 2. ZONAL COMMISSIONER,
VANDANA S ZONE OFFICE - 5,
Location: High MYSURU CITY CORPORATION,
Court of Karnataka
NAGARIKA SEVA KENDRA,
BASAVANAGUDI CIRCLE,
HEBBAL, MYSURU.
3. SMT. LAKSHMI,
D/O S. CHELUVEGOWDA,
W/O LATE LAVISH,
AGED ABOUT 50 YEARS,
R/AT DOOR NO.275, 2ND MAIN,
3RD CROSS, CAUVERY EXTENSION,
KUMBARAKOPPALLU,
MYSURU - 560 016.
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WP No. 19962 of 2023
4. SRI. S. CHELUVEGOWDA,
S/O LATE SEETHARAMEGOWDA,
AGED ABOUT 80 YEARS,
R/AT NO.16, MARIGUDI ROAD,
KUMBARKOPPAL,
MYSURU - 560 016.
5. SRI. R. JAYARAMU,
S/O LATE RAMEGOWDA,
AGED 51 YEARS,
R/AT NO.19, KUMBARA BEEDI,
KUMBARAKOPPALU,
MYSURU - 570 016.
...RESPONDENTS
(BY SMT. GEETHA DEVI PAPANNA., ADVOCATE FOR R-1 & R-2;
SRI. T.P.VIVEKANANDA, ADVOCATE FOR R-3
SRI. B.S. NAGARAJ, ADVOCATE FOR R-4 & R-5)
THIS W.P IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS OF
EVEN DATED 28/06/2023 MADE ON IAS NO. 3 AND 7 IN MA NO.
52/2023 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE,
MYSURU, VIDE ANNEXURE-D AND E RESPECTIVELY.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition by the appellant in M.A.No.52/2023 on the file of
the Prl. District & Sessions Judge, Mysuru, is directed against the
impugned orders dated 28.06.2023 whereby I.A.Nos.3 and 7 filed
by the respondent Nos.3 to 5 seeking impleadment as additional
respondents to the appeal was allowed by the Appellate Court.
2. Heard learned counsel for the petitioner and learned
counsel for the respondents and perused the material on record.
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3. A perusal of the material on record will indicate that in
the aforesaid appeal filed by the appellant under Section 443 - A of
the Karnataka Municipal Corporation Act, 1976, challenging the
order dated 24.03.2023 passed by respondent Nos.1 and 2 -
Corporation, the respondent Nos.3 to 5 filed the instant applications
- I.A.Nos.3 and 7 seeking impleadment on the ground that liberty is
reserved in their favour by this Court in MFA No.7811/2022 to
request the Corporation to take action against the petitioner. It was
contended by respondent Nos.3 to 5 that they were co-owners
having rights over the schedule property and as such, since the
petitioner was putting-up illegal and unauthorised construction in
respect of which the Corporation passed the aforesaid order dated
24.03.2023 directing demolition, the respondents Nos.3 to 5 at
whose instance the said order was passed were both proper and
necessary parties to the appeal which challenged the said order of
demolition, which was passed, as a result of the complaint
submitted by respondent Nos.3 to 5 and the liberty granted by this
Court in MFA No.7811/2022. It was therefore contended that the
respondent Nos.3 to 5 were both proper and necessary parties to
the appeal arising out of the demolition order and were entitled to
be impleaded as additional parties to the appeal. In this context, it
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is relevant to state that while Smt. Lakshmi, the respondent No.3
herein was the impleading applicant in I.A.No.3, the respondent
Nos.4 and 5 herein were the impleading applicants in I.A.No.7, and
both the applications having been allowed by the impugned orders,
the petitioner - appellant in M.A.No.52/2023 is before this Court by
way of the present petition.
4. A perusal of the material on record will indicate that the
Appellate Court has correctly and properly considered and
appreciated the rival contentions and has recorded finding that in
the backdrop of the facts and events that had occurred prior to the
order of demolition, which was challenged by the petitioner before
the Appellate Court, the respondent Nos.3 to 5 were both proper
and necessary parties to the appeal. While allowing I.A.No.3, the
Appellate Court has held as under:
"ORDER ON IA NO.III U/O 1 RULE 10(2)
R/W SECTION 151 OF CPC
This is an application filed U/o 1 Rule 10 (2) of CPC,
R/w Sec. 151 of CPC to permit the proposed
respondent to come on record as respondent No.3.
2. The brief facts of the application
accompanied with affidavit are that, Appellant has
preferred Miscellaneous Appeal under challenge in
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challenging Preliminary Notice issued by Mysore City
Corporation, under Section 321 (3) of Karnataka Municipal
Corporations Act, 1976 dated 13.03.2023. Very appeal is
not maintainable as the same is ex-facie frivolous and
vexatious. The proposed respondent is the co-owner of
property morefully described in schedule annexed to this
Affidavit. Same happens to be her joint family property.
She was constrained as well as compelled to initiate
original suit under reference No. O.S 940/2021 in
claiming the relief of partition and separate possession.
The said original suit involves schedule property also.
The proposed respondent has definite undivided and joint
share in and upon schedule property. Appellant herein is a
stranger in relation to the incident of schedule property.
3. The proposed respondent was constrained as
well as prompted to prefer MFA under reference
No.7811/2022 on the file of The Hon'ble High Court of
Karnataka, Bengaluru in questioning property of
impugned order dated 19.09.2022 in O.S. No.940/2021 of
Learned VI ASCJ and JMFC Mys. The Hon'ble High Court
of Karnataka vide order dated 15.12.2022 was pleased to
direct Mysore City Corporation to take appropriate action
against illegal and unlawful construction weeded in
schedule property. Relevant direction and arena of order of
The Hon'ble High Court of Karnataka is reproduced
verbatim:
"Considering above submissions, consideration of I.A.
No.1/2022 is deferred till filing of objection. respondents are
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constructing suit on, If property without building Licence and
plan, same would be open for appropriate authorities to take
action against same and mere pendency of this appeal would
not come in way of Authority taking action against same".
4. The proposed respondent further stated that,
Hon'ble High Court of Karnataka directed
MCC/Respondents herein to initiate and take appropriate
action against illegal construction being put up
unlawfully in a portion of schedule property Illegal and
unlawful construction surreptitiously undertaken by
appellant is devoid and bereft of Licence and approved
Plan from MCC. Dubious construction is ex-facie illegal and
unlawful. MCC/Respondents issued primary Notice dated
31.01.2023 and final notice dated 06.02.2023 against illegal
construction and for removal of the same. Followed
by issue of preliminary/Provisional Notice dated
13.03.2023. The proposed respondent further stated
that, without her effort and insistence, MCC would not have
issued such notices as per Rule of Law. MCC may or
may not defend the appeal effectively. But she being
joint owner of schedule property will defend dubious claim
of Appellant tooth and nail in order to hail justice and Law.
Hence, proposed respondent is proper and necessary
party of the Appeal. She will provide maximum
assistance to The Hon'ble Court for effective and complere
adjudication of Appeal on Board. The proposed respondent
lodged complaint to MCC against Appellant and others and
also annexed order passed by The Hon'ble High Court of
Karnataka, Bengaluru. MCC issued Notice dated 31.01.2023
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and final notice dated 06.02.2023 directing Appellant and
others to stop illegal construction with a warning of removal
of illegal structure weeded in schedule property. Followed
by issue preliminary notice dated 13.03.2023.
5. The proposed respondent further stated
that, alleged subject matter of the suit under challenge
pertains to her joint family property. It is her yeoman
effort and endeavour that prompted
MCC/Respondents to issue notices of stoppage of illegal
construction and demolition of the same. The proposed
respondent is the de-facto complainant and
Respondents/MCC are de-jure authority that has
initiated legal action against Appellant upon on her
complaint and direction dated 15.12.2022 of The Hon'ble
High Court of Karnataka in her MFA 7811/2022. The
proposed respondent is directly affected by illegal and
unlawful construction of Appellant. Her rights are affected
and infringed. In the said back drop, she is proper and
necessary party for the adjudication of Appeal under
challenge. Without her involvement and participation in
legal proceedings, complete and effective
adjudication cannot attain with. On the said score also,
she is proper and necessary party of the appeal under
challenge. The proposed respondent stated that, in
addition to launching of original suit under reference No.
O.S. 940/2021 on the file of Learned VI ASCJ and JMFC
Mysuru, they have also initiated original suits under
reference Nos. O.S.1595/2021 to OS. 1600/2021 pending
on the file of Learned I ACJ and JMFC Mysuru. Her original
suits referred to above involve schedule property.
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6. Sri.Seetharamegowda (deceased) happens
to be Propositus of her Joint family. Schedule property
is her ancestral, joint and undivided family property. In
the absence of division and partition by and amongst us
schedule property happens to be her joint family. The
proposed respondent further stated that, Government of
Karnataka represented by Deputy Commissioner
attempted to usurp schedule property. Her father and her
senior paternal uncle had to take up legal crusade against
Government of Karnataka under legal canopy of Urban Land
(Ceiling and Regulation) Repeal Act, 1999. The original suit
under reference No. O.S 366/2002 and O.S. 367/2002 have
been allowed by The Hon'ble Court of First Additional First
Civil Judge and JMFC at Mysuru, vide Judgments and
Decrees dated 08.02.2021 respectively. The proposed
respondent stated that, except her joint family none have
any sort of right or interest over schedule property. On
19.09.2021 she observed disturbance in schedule property
created by Appellant and others. Their awful acts prompted
her to verify records of joint family properties by virtue of
which she learnt about their unscrupulous and draconian
attempts to usurp and knock off schedule property by
concocting and fabricating fraud and fraudulent
documents. She has not executed any documents
involving suit schedule property in favour of anybody to
which phrase appellant and others are no exception. The
vexatious claim of appellant and others based on
fabricated and doctored documents against an arena of
schedule property is perse void-ab-initio and void-ipso-
jure.
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7. Physical possession of schedule
property is with her possession of schedule property is
with her joint family. AS the member of joint family she is
also in physical possession of schedule property. Further,
she stated that, she did not has knowledge about dubious
and void documents till 18.10.2021 i.e., date of filing of
documents and service of the same before The
Hon'ble VI ASCJ Mysuru in O.S. No.940/2021 and
also service of documents upon her. She is not a party
to said void documents. On account of their voidness, they
never and ever had legal enforceability, legal
existence and legal vogue. Further, she stated that,
dubious suggestions of alleged conferment of physical
possession of appellant and others over alleged arena of
suit schedule property in above referred void documents
are perse sham, spurious and onerous. By any wind of
manipulation, appellant and others have no locus
standi even to suggest of having physical
possession over any arena of schedule property
based on void documents. The fraudulent and
dubious alleged documents of assessment forged with
MCC are fabricated based on void documents. Hence
unenforceable and do not convey any legitimate meaning.
8. Further she stated that, she is not a
party to above referred void documents and compromise
decree. Without conceding the case of the appellant and
others and without prejudice to her rights, it is her humble
submission that, by any wind of manipulation, unlawful a n d
illegal construction of appellant and others
c a n n o t b e misinterpreted that possession of schedule
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property is in their alleged bastion. Schedule property is in
her joint possession as it happens to be her joint family
property. Illegal construction with the help of goondas and
antisocial elements does not fit within realm of
legal/lawful possession envisaged in established
principles of Law, Rule of Law and Rule by Law. It is
further humble submission on oath that physical
possession of the property is absolutely attributable to her
and her joint family. Appellant and a few others had initiated
ludicrous and grotesque original suits in O.S. 261/2023 to
O.S. No. 266/2023 against MCC for the relief of
declaration and permanent injunction. She presented
impleading application under Order 1 Rule 10 (2) of C.P.C.
1908. They felt pinch of defeat and got above cases
dismissed.
9. Further she stated that, from the
stand point of above referred sacred facts and whole truth
nothing but truth she is entitled to come on record as a party
Respondent No.3 to defend the alleged claim of appellant
as she is a necessary and proper party. Further the
proposed respondent stated that, appeal under
challenge is not maintainable as the presentation of the
same is barred by Law in vogue. She shall make every
endeavour in drawing the kind attention of The Hon'ble
Court regarding non-maintainability of appeal and regarding
its frivolity. In the said back drop also, she is proper and
necessary party of the appeal.
10. The Hon'ble High Court of
Karnataka, in my MFA 7 81 1/20 22 w as fu rthe r
p lea sed to pas s imma c u late o rde r in axiomatically
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impleading MCC as a party respondent in her MFA. Before
this appeal frivolous original suits were filled before PCJ
and JMFC Mysuru. She had filed impleading application in
the said original suit. After realizing defeat same were
withdrawn. Likewise, MA 33 to MA 40/2023 were
preferred before this court. She filed impleading
application and filed several objection statements to
vexatious applications of appellants. She provided
maximum assistance to this court in administration of
justice which resulted in dismissal of amendment
application vide judicious and immaculate order dated
20.04.2023 rendered by The Hon'ble Court of PCJ
Mysuru. On 21.04.2023 all dubious appeals were
withdrawn. By such humble endeavour she has already
demonstrated before this court that, she is proper and
necessary party. She has also lodged Caveat before
The Hon'ble Vacation Court. Further she stated that,
she will be put to grave hardship and injury in the
event of rejection of her prayer. Appellant will not be
jeopardized, if her impleading application is allowed.
11. In view of the above facts and
circumstances, it is her earnest appeal to this court that
her impleading application may kindly be allowed in the
interest of equity and justice.
12. On the other hand the appellant has
filed objections stating that, the application filed by the
proposed respondent No 3 is not maintainable either
in law or on facts and as such the very application
deserves to be dismissed in limine. The applicant is set up
by her father and her cousin brother to file this false
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application and the very application is a collusive
application and as such the very application deserves
to be dismissed. The appellant had purchased the
site property from the grandfather, father and paternal
uncle of the proposed respondent No.3 in the year 1980.
The proposed respondent was not a coparcener as on
the year 1980. The coparcenary right to female was brought
by way of amendment to section 6 of Hindu Succession Act
in the year 2005. The proposed respondent No.3 was not
having right over the property bearing survey No. 155/1
and 159/1, in the year 1980 and the property bearing
survey No. 155/1 and 159/1 was sold to the appellant
and other various purchasers by the grandfather, father
and paternal uncle of the proposed respondent No.3 in the
year 1980 itself.
13. The proposed respondent No.3 had
not challenged the sale made by her grandfather,
father and paternal uncle of the proposed respondent
within three years from the date of sale. The proposed
respondent No.3 has been setup by her father and
cousin brother to file a suit for partition on the file of VI
Additional Senior Civil Judge, at Mysuru in OS. No.
940/2021. The proposed respondent No.3 had maintained
interim application to restrain the appellant and others
herein from interfering in the peaceful possession of the
land bearing survey No. 155/1 and 159/1 in OS. No.
940/2021 and the said application was contested by this
appellant and on merits the application filed by the
proposed respondent No.3 herein was dismissed.
14. The proposed respondent No.3 had
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preferred a miscellaneous first appeal before the
Hon'ble High Court of Karnataka in MFA No.
7811/2022 and the Hon'ble High Court of Karnataka has
observed that If respondents are constructing on suit
property without building license and plan same would be
open for appropriate authorities to take action against the
same and mere pendency of this appeal would not come in
way of authority taking action against same'. The Mysore
City Corporation is not a party to the MFA No. 7811/2022 and
as such the Hon'ble High Court of Karnataka cannot pass
order directing the Mysore City Corporation to take
necessary action who is not a party to the miscellaneous
appeal. The Hon'ble High Court of Karnataka has not
observed to demolish the houses constructed in the land
bearing survey No. 155/1 and 159/1, as matter stood thus
the proposed respondent No. 3 has sworn to a false
affidavit. The proposed respondent No 3 has not approached
this Hon'ble court with clean hands and as such the very
application under objection is liable to be dismissed in
limine.
15. The proposed respondent No. 3 or her
family members are the owners of the property bearing Sy
No. 155/1 and 159/1 as the family of the proposed
respondent No. 3 has sold the property bearing Sy No
155/1 and 159/1 in the year 1980 itself in favour of various
purchasers and as such the question of impleading in the
present appeal by the proposed respondent No. 3 does not
arise.
16. The proposed respondent No. has
no right to bring the application under objection as the
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grandfather, paternal uncle and father of the proposed
respondent No.3 had sold property bearing Sy No. 155/1
and 159/1 to various persons by farming revenue sites
and since 1980 the proposed respondent did not
challenge the sale made by the grandfather, paternal
uncle and father of the proposed respondent No.3 and as
such the very application filed by the proposed respondent
No. 3 under objection does not survive for consideration.
The only course for the proposed respondent No 3 herein
is to succeed in the partition suit filed by her on the file
of VI Additional Senior Civil Judge, at Mysuru in OS. No.
940/2021. The appellant submits that the suit in OS. No.
940/2021 filed by the proposed respondent No 3 herein is
not maintainable under law as the very suit is hit by section 6
Hindu succession Amended Act 2005. The proposed
respondent No 3 has sworn to a false affidavit and the
proposed respondent No 3 has not made out any case
against the appellant herein. Hence the application filed
by the proposed respondent No. 3 is liable to be rejected.
17. The matter in issue is between the
appellant and the respondents 1 and 2 and the
proposed respondent No.3 is not a necessary party to the
appeal as the order dated 24/3/2023 is made by the
respondents 1 and 2 against the appellant and as such the
proposed respondent No.3 is not a necessary party to the
appeal and the proposed respondent No.3 is stranger to
the appeal as matter stood thus the very application
under objection is liable to be dismissed in limine. The
appellant has not sought any relief against the proposed
respondent No.3 in the appeal and as such, the very the
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application deserves to be dismissed.
18. For the above reasons, it is prayed to dismiss
the application with cost.
19. Heard the arguments and perused the records.
20. Now the points that arise for my consideration are
that,
1) Whether the IA-III filed U/o 1 Rule 10 (2)R/w
Sec. 151 of CPC is entitled to be allowed?
2) What Order?
21. My answers to the above points are as
follows,
Point No.1. In the Affirmative
Point No. 2. As per final Order.
:: REASONS::
22. Point No. 1. This is an appeal filed by
the appellant against the Mysuru City Corporation for
setting aside the order dated 24.03.2023 passed by the
Mysuru City Corporation Commissioner. The proposed
respondent has filed this application stating that, she is
proper and necessary party as she is the Co-owner of the
property and that the appellant is a stranger to the suit
property. It is further stated that, except her joint family, no
one has any sort of right or interest over the schedule
property. The appellant without any right has filed this
appeal against the corporation without making the proposed
respondent as respondent. It is further stated that, she
had prepared MFA before Hon'ble High court of
Karnataka in MFA No. 7811/2022 and Hon'ble High Court
of Karnataka directed the Mysuru City Corporation to
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take appropriate action against illegal and unlawlful
construction in the schedule property.
23. The appellant contended that, he
had purchased the suit property from the grand father,
father and paternal Uncle of the proposed respondent
No. 3, in the year 1980 and that she was not a coparcener
as on the year 1980. The proposed respondent has no
right to bring this application and that she is not a
necessary party to the appeal. When the appellant states
that, he had purchased the suit property from the grand father
and father of the proposed respondent, the proposed
respondent has rightly filed this application in order to contest
the matter by coming on record as the respondent.
Appellant also stated that, the proposed respondent or her
family members are owners of the property bearing Sy. No.
155/1 and 159/1 as the family of the proposed respondent
had sold the property in the year 1980, in favor of
various purchasers. Since the matter is pending before
the Hon'ble High Court of Karnataka relating to the
schedule property on the basis of the appeal filed by
proposed respondent, the proposed respondent is
necessary party to the proceedings of this appeal. By
allowing this application, no harm or irreparable will be
caused to the appellant. In fact, the participation of the
proposed respondent will help in adjudicating the matter.
Hence, I am of the opinion that, the IA-III needs to be
allowed. Accordingly, I answer point No. 1 in affirmative.
24. Point No. 2: - For the foregoing
reasons, I proceed to pass the
ORDER
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IA-III filed U/o 1 Rule 10 (2) R/w Sec. 151 of CPC is
allowed.
The proposed respondent is added as
respondent No.3 in the case.
No costs."
5. So also, while allowing I.A.No.7 the Appellate Court
has held as under:
"ORDER ON IA NO.VII U/O 1 RULE 10(2)
R/W SECTION 151 OF CPC
This is an application filed U/o 1 Rule 10 (2) of
CPC, R/w Sec. 151 of CPC to permit the proposed
respondents to come on record as respondent No. 4 and
5.
2. The brief facts of the application
accompanied with affidavit are that, the Appellant had
preferred the Miscellaneous Appeal under challenge in
challenging the Preliminary order passed by the
Mysore City Corporation under Section 321 (3) of
Karnataka Municipal Corporations Act, 1976 dated
13.03.2023, and the Very appeal was not
maintainable and the same was contended by these
Applicants/proposed respondents, in the earlier
proceedings and thereafter words the Appellant herein had
withdrawn the Appeal and presented this present
Appeal questioning the order dated
2 4 . 0 3 . 2 0 2 3 , m a d e i n R e f No.My.Na.Pali.vaka-
05/C.Ajne/142/2022 -23. And the same is not
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maintainable either in law or on facts and the same is
liable to be dismissed by this court.
are the absolute owners in possession and
enjoyment of the property more fully described in the
schedule annexed to this Affidavit, But, there was a
dispute between proposed respondents us and the
Government of Karnataka I.e., the competent authority
under the urban land ceiling authority. Under date
09.05.1987, the Deputy commissioner passed the
order under the provision of section 10(1) and (3)
of the ULC Act, and the same was questioned
before the Divisional Commissioner u/s 33 of the ULC
Act, and the same was allowed and the same was
remanded back to the Deputy Commissioner.
4. It is further submitted that, during the pendency
of the ULC Proceedings, the Repeal Act, of 1999, came
into force, therefore the possession of the scheduled
property is protected by virtue of Section 3 (2) of the
Urban Land (Ceiling & Regulation) Re p e a l Act,
1 9 99 . Un de r t h e s a id s it u a t io n th e De pu t y
Commissioner, Mysuru was interfering with the possession
of the applicant and further, there is the threat of
dispossession. Therefore, the applicants herein were
forced to approach the Civil court for a declaration
that their right and possession are protected by
virtue of Section 3 (2) of Urban Land (Ceiling &
Regulation) Repeal Act, 1999, by filing O.S.No.366/2002
and O.S.No.367/2002, on the file of the I Addl. I Civil
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Judge and JMFC Mysuru.
5. It is submitted that, during the pendency of
the above suit the Appellant herein and other persons
started illegal construction on the scheduled
property. Therefore, the Ex. Corporators of Mysuru
Corporation by the name Cheluvegowda and
Srikantamurthy and other citizens of Mysuru had filed
the Public Interest litigation before the Hon'ble High
Court in W.P.No.13233/2010. Under cat 17.01.2011, it
was disposed of by making the following observations
which read as follows:-
" However, it is relevant to submit here only that the
State is in possession of the above-stated extent of land
and it is protecting the same, awaiting the decision of
Court in the above said Civil Appeals. Thus, it is clear
that the allegations of the petitioners that the
Respondent herein are not protecting the property
and that some transactions are being taken between
some persons in respect of said land, etc. is false and
baseless. At the cost of the repetition, it is submitted
that the above-stated extent of land is in the custody of
Government and the Record of Rights in respect of that
extent of land stands in the name of Government".
A perusal of the averment made at Paragraphs-
4, reveals the possession, of the land in question,
is with the Government, and that no tress-pass
over the same is being permitted.
6. Further, it is submitted that, as per the order
of the Hon'ble High Court passed in
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W.P.No.17385/2021, dated, 11 .03 .202 2, th ey
ha ve made the rep re sen tat io n da ted,
28.03.2022, addressed the Respondent No.2,
Thasildar. But, Respondent No.2 -Thasildar, even
after four months also no action is taken to change
the Katha as per the order of the Hon'ble High Court.
Therefore, the were forced to approach the H o n ' b l e
High Court by filing a contempt petition in
C.C.C.No.720/ 2022, and after service of Notice
from the contempt court. The Thasildar had issued
an endorsement dated , 0 5.12 .202 2, sta ting that
t hey hav e re jec ted the application that they have
taken possession and it is government land.
7. The proposed respondents further submitted
that, they are being aggrieved by the endorsement dated,
05.12.2022, issued by the Tahsildar, preferred the
W.P.No.25137/2022, before the Hon'ble High Court
and the Hon'ble High Court by its order dated,
15.12.2022, granted the interim order of status quo, and
the interim order is extended from time to time.
8. The proposed respondent submitted that, the
competent authorities under the Urban Land Ceilings
Act are either not protecting the land in question
or changed the Revenue records in favour of this
Proposed applicants, therefore, they have been forced
to approach the Hon'ble High Court by filing a
contempt petition in C.C.C.No.1/23, and the Hon'ble
High court, and whereas the Competent authorities
under the urban land ceiling Act, i.e., Deputy
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Commissioner and Thasildar have appeared before the
contempt court and filed their affidavit stating that they
have protected the land in question. Therefore, the
Hon'ble High Court of Karnataka passed the order
which reads as follows: -
"Admittedly, the photographs to which the learned
counsel for the complainants refers to are of February
2023 ad a statement is made in the affidavit about
now stalling the construction activity and the
photographs produced in support of their statement are
of April 2023. The counter affidavit is filed by the
learned Additional Government Advocate is
dated 12.4.2023. As such, if it is a case of the
complainants and the statement made in the affidavit is
an untrue statement, the complainants may file an
appropriate affidavit within six weeks".
9. Further it is submitted that, the Hon'ble High
Court in M.F.A.No.7811/2022, Passed the order dated,
15.12.2022, which reads as follows: -
"If respondents are constructing on suit property without
building license and Plan, the same would be open for
appropriate authorities to take action against same
and mere pendency of this Appeal would not come
in way of authority taking action against same.
10. The proposed respondents state that,
Respondent No.1, Corporation herein as per the
directions of the Hon'ble High Court had initiated and
taken appropriate action against illegal construction
being put up unlawfully in a portion of the s c h e d u le d
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p ro p e rt y . I l le g a l and u n la w f u l c o n s t ru c t io n
surreptitiously undertaken by the appellant is devoid
and bereft of Licence and approved Plan from MCC.
Dubious construction is ex-facie illegal and unlawful.
MCC/ Respondents issued a primary Notice dated
31.01.2023 and a final notice dated 06.02.2023
against illegal construction and for removal of the
same. Followed by the issue of
preliminary/Provisional order dated 13.03.2023. And,
now the corporation authorities rightly passed the order
dated,24.03.2023 by confirming the provisional order.
And, the same is questioned by the Appellant herein,
and even before this court, the appellants not even
produced any documents in respect of her title and
possession and sanctioned plan and license.
Therefore, this court has no jurisdiction to entertain
the appeal in violation of the order of the Hon'ble High
Court.
11. Further they state that, MCC issued such
notices as per the Rule of Law. MCC may or may not
defend the appeal effectively. But they are the joint
owner of the scheduled property will defend a dubious
claim of the Appellant tooth and nail in order to hall
justice and Law. Hence, they are the proper and
necessary party of the Appeal. They will provide
maximum assistance to the this Court for
effective and complete adjudication of Appeal on
the Board.
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12. Further proposed respondents state
that, the alleged subject matter of the suit under
challenge pertains to their joint family property. It is their
yeoman effort and endeavor that prompted MCC/
Respondents to issue notices of stoppage of illegal
construction and demolition of the same. Proposed
respondents are directly affected by the illegal and
unlawful construction of the Appellant. Their rights are
affected and we are necessary parties for the
adjudication of the Appeal under challenge. Without
their involvement and participation in legal proceedings,
complete and effective adjudication cannot attain with.
On the said score also, they are a proper and
necessary party of the appeal under challenge.
13. Further proposed respondents state that,
Schedule property is their ancestral, joint, and undivided
family property. In the absence of division and
partition by and amongst us scheduled property
happens to be their joint family property. Further
they state that, the Government of Karnataka
represented by the Deputy Commissioner attempted
to usurp scheduled property. The original suit under
reference No. O.S 366/2002 AND 0.5 367/2002 has
been allowed by the Hon'ble Court of First Additional
First Civil Judge and JMFC AT Mysuru vide Judgments
and Decrees dated 08.02.2021 respectively.
14. The proposed respondents state that,
physical possession of the scheduled property is with
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their joint family. As a member of a joint family, they are in
physical possession of the scheduled property.
Further they state that, appeal under challenge is
not maintainable and appellant has no concern for the
property in question is a concern as the presentation of
the same is barred by Law in vogue. Proposed
respondents shall make every endeavor in drawing the
kind attention of the Hon'ble Court regarding the non-
maintainability of the appeal and regarding its
frivolity. In the said backdrop also, we are the proper
and necessary party of the appeal.
15. The proposed respondents submitted that, if
this application is allowed no harm or injustice is caused
to the other side interalia if this application is not allowed;
They will be put to great hardship and the same cannot
be compensated in terms of money. Therefore, their
impleading application is required to be allowed.
16. In view of the above facts and
circumstances, the applicants to allow the
accompanying application and permit them to come
on record as additional Respondents No. 4 and 5, in
the interest of equity and justice.
17. On the other hand, the appellant has filed
objections stating that, The father of the proposed
respondent No.4, proposed respondent No.4 and
father of the proposed respondent No.5 in the year 1980
had sold the property belonging to them that is survey
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No. 155/1 and 159/1. The proposed respondents 4 and
5 are estopped from going contrary to their act of
selling the agricultural property bearing survey No.
155/1 and 159/1, in the year 1980 in favour of various
purchasers.
18. The proposed respondent No.4 and 5 is
not having right over the property bearing survey No.
155/1 and 159/1. The property bearing survey No. 155/1
and 159/1 was sold by the father of the proposed
respondent No.4, proposed respondent No.4 and
father of the proposed respondent No.5 to various
purchasers by the proposed respondent No.4,
proposed respondent No.4 and father of the proposed
respondent No.5 in the year 1980 itself.
19. The purchasers of the agricultural property
bearing Sy. No.155/1 and 159/1, had filed suits for
specific performance in the year 2002 against the
proposed respondent No. 4 and father of the proposed
respondents No.5 and daughters of Seetharamaiah on
the file of IV Additional I Civil Judge (Jr.Div) Mysore
against and the suit have been decreed before
Lok Adalath. The proposed respondents No.4 and
father of the proposed respondent No.5 did not
challenge the decree passed before the Lok Adalath till
date and as such the decree passed by the Lok Adalath
has attained finality.
20. The proposed respondents No.5 had also
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filed a writ petition (GM- POLICE) in WP. 26527/2009
against the state and the police and the said writ petition
was disposed on 11/1/2010 wherein the Hon'ble High
court has specifically observed that the matter between
the plaintiff and the sites owner have ended in
compromise before the Lok Aadalath and if the 2nd
plaintiff has any right it is always open for him to seek
declaration in the competent court and dismissed the
writ petition'. The proposed respondents No.5 has not
challenged the order passed by the Hon'ble High
Court of Karnataka in W.P 26527/2009 and as such
the same is attained finality. The proposed respondent
No.5 has not filed any suit for declaration till date as per
the finding of the Hon'ble High Court of Karnataka and
as such the family of Seetharamaiah has no right or
title over the agricultural land bearing Sy. No. 155/1
and 159/1.
21. The proposed respondent No.4 and
father of the proposed respondent No.5 had filed a suit
for declaration in O.S. No. 366/2002 and 367/2002
against the Government of Karnataka and in the
said suit the appellant and some of purchasers of
the agricultural land bearing Sy.No. 155/ and 159/1
have made necessary application for impleading in
O.S. No. 366/2002 and 367/2002 and the said
application was allowed and later proposed
respondent No.4 and father of the proposed
respondent No.5 have challenged the same before the
Hon'ble High Court of Karnataka in WP No. 13978/2006
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and WP No. 14328/2006 respectively. In the said
writ petitions the Hon'ble High Court of Karnataka
while disposing the said writ petitions have "observed
that the judgment and decree passed in O.S No
366/2002 will not affect the respondents and the same is
not binding on them. Further the respondents No 3 to
14 are entitled to protect their right in accordance
with law". The proposed respondent No.4 and
proposed respondent No.5 concealing the order
passed by the Hon'ble High court of Karnataka in
WP. No. 13978/2006 and WP, No. 14328/2006, have
come up with this false application. The
proposed respondent No.4 and father of the proposed
respondent No.5 are estopped going contrary to the
observation made by the Hon'ble High court.
22. The proposed respondent No.4 and 5 had set
up the daughter of the respondent No.4 herein to file a
suit for partition on the file of VI Additional Senior Civil
Judge, at Mysuru in OS. No. 940/2021. The
proposed respondent No.3 who is the daughter of
respondent No.4 had maintained interim application to
restrain the appellant and others herein from interfering in
the peaceful possession of the land bearing survey No.
155/1 and 159/1 in OS. No. 940/2021 and the said
application was contested by this appellant and on
merits the application filed by the proposed
respondent No.3 herein was dismissed. The
proposed respondents' No. 4 and 5 have not contested
the suit filed by the daughter of the respondent No.4 by
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filing objections in OS No. 940/2021 the very act of
the respondents 4 and 5 prima-facie establishes
their collusiveness in setting up the proposed
respondent No.3 to file the false suit in OS. No.
940/2021.
23. The proposed respondent No.3 had
preferred a miscellaneous first appeal before the
Hon'ble High Court of Karnataka in MFA No.
7811/2022 and the Hon'ble High Court of Karnataka has
observed that Ir respondents are constructing on suit
property without building license and plan same would
be open for appropriate authorities to take action
against the same and mere pendency of this appeal
would not come in way of authority taking action
against same'. The proposed respondents No.4 and 5
has not revealed the fact that the proposed
respondent No.4 and the father of the proposed
respondent No.5 and the father of the proposed
respondent No. 4 had sold the land bearing survey
No. 155/1 and 159/1, before the Hon'ble High Court of
Karnataka. The proposed respondents No.4 and 5 has
not approached this Hon'ble court with clean hands and
as such the very application under objection is
liable to be dismissed in limine.
24. The proposed respondent No. 4 and 5 or
proposed respondent No.3 are the owners of the
property bearing Sy No. 155/1 and 159/1, as the
family of the proposed respondent No. 4 and 5 has
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sold the property bearing Sy. No 155/1 and 159/1 in
the year 1980 itself in favour of various purchasers
and as such the question of impleading in the present
claiming to be owner of the land bearing survey No.
155/1 and 159/1 does not arise.
25. The proposed respondent No. 4 and 5 have
not lodged any complaint to the MCC till date and
as such the very application filed by the proposed
respondent No. 4 and 5 under objection does not
survive for consideration. The proposed respondent
No. 4 and 5 have sworn to a false affidavit and the
proposed respondent No. 4 and 5 have no locus standi to
file the application under objection. Hence the
application filed by the proposed respondent No. 4 and
5 is liable to be rejected.
26. For the above reasons, it is prayed to
dismiss the application with cost.
27. Heard the arguments and perused the
records.
28. Now the points that arise for my
consideration are that,
1) Whether the IA-VII filed U/o 1 Rule 10 (2)
R/w Sec. 151 of CPC is entitled to be allowed?
2) What Order?
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29. My answers to the above points are as
follows,
Point No.1. In the Affirmative
Point No.2. As per final Order.
:: REASONS::
30. Point No. 1. This is an appeal filed by the
appellant against the Mysuru City Corporation for setting
aside the order dated 24.03.2023 passed by the
Mysuru City Corporation Commissioner. The
proposed respondents have filed this application
stating that, they are proper and necessary parties as
they are the absolute owners of the property and that
the appellant is a stranger to the suit property. It is
further stated that, except their joint family, no one has
any sort of right or interest over the schedule property.
The appellant without any right has filed this appeal
against the corporation without making the proposed
respondents as respondents. It is further stated that,
they had prepared WP before Hon'ble High court of
Karnataka in WP No.13233/2010 and WP No.
25137/2022 and the Hon'ble High Court of Karnataka
in MFA No. 7811/2022 directed the Mysuru City
Corporation to take appropriate action against illegal
and unlawful construction in the schedule
property.
31. The appellant contended that, he had
purchased the suit property from the fathers of proposed
respondents No. 4 and 5 in the year 1980 and that
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they are estopped from going contrary to their act
of selling the said properties in favour of various
purchasers. The proposed respondents have no
right to bring this application and that they are not
necessary parties to the appeal. When the appellant
stated that, he had purchased the suit property from the
fathers of the proposed respondents , the proposed
respondents have rightly filed this application in order
to contest the matter by co ming on record as
the re s p o n d e n t s . A p p e l la n t a ls o s t a t e d t h a t ,
t h e p ro p o s e d respondents or their family members
are owners of the property bearing Sy. No. 155/1 and
159/1 as the family of the proposed respondents had
sold the property in the year 1980, in favor of various
purchasers. Since the matter is pending before the
Hon'ble High Court of Karnataka relating to the
schedule p r o p e r t y o n t h e b a s i s o f t h e a p p e a l
f i l e d b y p r o p o s e d respondents , the proposed
respondents are necessary parties to the proceedings
of this appeal. By allowing this application, no harm or
irreparable will be caused to the appellant. In fact, the
p a rt ic ip a t io n o f t h e p ro p o s e d re s p o n d e n t s w il l
h e lp in adjudicating the matter. Hence, I am of the
opinion that, the IA-VII needs to be allowed.
Accordingly, I answer point No. 1 in affirmative.
32. Point No. 2: - For the foregoing reasons,
I proceed to pass the following,
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ORDER
IA-VII filed U/o 1 Rule 10(2) R/w Sec. 151 of CPC
is allowed.
The proposed respondents are added as
respondent No.4 and 5 in the case.
No costs."
6. A perusal of the aforesaid impugned orders will
indicate that the same are in conformity and consonance with well
settled principles of law governing addition of parties. At any rate,
it cannot be said that any prejudice would be caused to the
petitioner if the respondent Nos.3 to 5 are permitted to be
impleaded as additional respondents to the appeal and as such,
the impugned order cannot be said to have occasioned failure of
justice warranting interference in the present petition.
7. At this stage, learned Senior Counsel for the petitioner
submitted that the respondent Nos.3 to 5 are also guilty of
committing several illegalities under the provisions contained in
Karnataka Land Revenue Act, Karnataka Land Reforms Act and
Karnataka Municipal Corporations Act and liberty may be reserved
in favour of the petitioner to take recourse to such remedies as
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available in law against respondent Nos.3 to 5 or anyone else in
this regard. The said submission is placed on record.
8. In the result, I pass the following:
ORDER
(i) Petition is hereby disposed of without
interfering with the impugned order.
(ii) Liberty is reserved in favour of the petitioner to
take recourse to such remedies as available in law against
respondent Nos.3 to 5 or anyone else under the provisions of
the Karnataka Land Revenue Act, Karnataka Land Reforms
Act and Karnataka Municipal Corporations Act.
SD/-
JUDGE
SV
