Karnataka High Court

Md Samiuddin Patel And Ors vs Syed Awaise And Ors on 8 November, 2024

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                     WP No. 201135 of 2023




                             IN THE HIGH COURT OF KARNATAKA

                                    KALABURAGI BENCH

                        DATED THIS THE 8TH DAY OF NOVEMBER, 2024

                                          BEFORE

                        THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                          WRIT PETITION NO.201135/2023(GM-CPC)

                   BETWEEN:

                   1.    MD. SAMIUDDIN PATEL
                         S/O. MOINUDDIN PATEL
                         AGE ABOUT 53 YEARS
                         OCC. AGRICULTURE

                   2.    MD. BAHUDDIN PATEL
                         S/O. LATE MOINUDDIN PATEL
                         AGE 50 YEARS
                         OCC. AGRICULTURE
Digitally signed
by SUMITRA
SHERIGAR           3.    MD. ANWARUDDIN PATEL
Location: HIGH
COURT OF                 S/O. LATE MOINUDDIN PATEL
KARNATAKA                AGE 62 YEARS
                         OCC. AGRICULTURE

                   4.    MD. MOHIUDDIN
                         S/O. ANWARUDDIN PATEL
                         AGE 35 YEARS
                         OCC. AGRICULTURE
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                                  WP No. 201135 of 2023




5.   MD. SHAHABUDDIN
     S/O. MD. ANWARUDDIN PATEL
     AGE 32 YEARS
     OCC. AGRICULTURE

     ALL R/O. VILLAGE HUCHAKNALLI
     TQ & DIST. BIDAR - 585 227.
                                         ...PETITIONERS
(BY SRI RAMACHANDRA K., ADVOCATE)

AND:

1.   SYED AWAISE
     S/O. LATE SYED PASHA
     AGE 52 YEARS
     OCC. AGRICULTURE

2.   SYED PARVAZ
     S/O. LATE SYED PASHA
     AGE 46YEARS
     OCC. AGRICULTURE

3.   SYED RAYEES
     S/O. SYED PASHA
     AGE 44 YEARS
     OCC. AGRICULTURE

4.   SYED WASIF
     S/O. SYED GHOUSE
     AGE 25 YEARS
     OCC. STUDENT

5.   SYED TOUSUF
     S/O. SYED GHOUSE
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                                    WP No. 201135 of 2023




     AGE 20 YEARS
     OCC. STUDENT

     R1 TO R6 R/O. VILLAGE HUCHAKNALLI
     TQ & DIST. BIDAR - 585 227.

6.   RUHEENA BEGUM
     W/O. ABDUL JABBAR
     AGE 52 YEARS
     OCC. HOUSEHOLD
     R/O NAUBAD
     TQ. & DIST. BIDAR - 585 402.

7.   SHAHEEN BEGUM
     W/O. HASSAN MIYAN
     AGE 49 YEARS
     OCC. HOUSEHOLD
     R/O VILLAGE HUCHAKNALLI
     TQ & DIST. BIDAR - 585 227.
                                         ...RESPONDENTS
      THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE
WRIT OF CERTIORARI TO QUASH THE IMPUGNED ORDER
OF ANNEXURE-F O.S.34/2021 DATED 02.03.2023 ON THE
FILE OF II ADDITIONAL SENIOR CIVIL JUDGE & JMFC AT
BIDAR.

      THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:


CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
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                                        WP No. 201135 of 2023




                       ORAL ORDER

(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR)

This petition is by defendant Nos.1 to 8 in O.S. No.34

of 2021 on the file of the II Additional Senior Civil Judge

and JMFC, Bidar, (for short 'Trial Court'), is directed

against the impugned order dated 02.03.2023, whereby,

the application I.A. No.7 filed by respondent No.1 to 7-

plaintiffs under Order 1, Rule 10 of CPC for impleadment

of additional defendant Nos.6 and 7 to the suit, was

allowed by the Trial Court.

2. A perusal of the material on record will indicate

that the respondents-plaintiffs instituted the aforesaid suit

in O.S. No.34 of 2021 before the Trial Court against the

petitioners-defendants for partition and separate

possession of their alleged share in the suit schedule

immovable properties and for other reliefs.

3. During the pendency of the suit, the

respondents-plaintiffs filed an application I.A. No.7 seeking

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impleadment of one Maher Sultana Begum W/o. Md.

Samiuddin Patel and Veerayya S/o. Shivalingayya Sali, as

additional defendant Nos.6 and 7, on the ground that they

are purchasers of portions of the suit schedule properties.

The said application was contested only by the proposed

defendant Nos.6 and 7 and not by the present petitioners,

who are the defendant Nos.1 to 5 in the suit. After

hearing the plaintiffs and the proposed defendants, the

Trial Court proceeded to pass the impugned order allowing

the application I.A. No.7 by holding as under:

"The present I.A. No.7 filed by the Plaintiff U/O 1 Rule 10(2) of CPC to implead the Defendants No.6 and 7 who are necessary parties to the suit.

2. In support of this application, the Plaintiff has sworn an affidavit stating that, Maher Sultana Begum W/o. Md. Samiuddin Patel and Veerayya S/o. Shivalingayya Sali are the purchasers of the suit land. They are necessary party to this case, without pleading them, the suit cannot be disposed-off. If they are not impleaded it will cause multiplicity of proceedings. Therefore, prays to allow the application.

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appeared through K.H.B Advocate filed the objection to application stating that, the suit filed by the Plaintiff is false and frivolous. O.S.No.73/2015 filed by the Plaintiff against the Defendant for partition is disposed-of on 27-01-2017. Again he has filed his suit. In both the suit, Plaintiffs have made the proposed Defendants as party to the suit in the earlier stage. Now this case is posted for cross of P.W.1. now he has filed this application. Proposed Defendants have purchased Sy.No.17 measuring 3 acres on 08- 10-2012. After lapse of 10 years now the Plaintiffs come-up with this application. Same is not maintainable.

4. Further it is contended that, the application is barred by law as per the limitation act within 3 years, the application shall be filed, but it is not filed. Prays to reject the application with exemplary cost of Rs.5,000/-.

5. Heard the arguments by both the advocates.

6. On perusal of the above said facts and circumstances of the case, the following points arise for consideration:

1) Whether the Plaintiff has made out the proposed Defendants No.6 and 7 are proper necessary parties to the suit?

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2) What order?

6. My findings to the above points are as follows:

Point No.1: In the Affirmative

Point No.2: As per the final order for the following:

REASONS

7. Point No.1: The present suit filed by the Plaintiff against the Defendants for the relief of Partition and Separate Possession in respect of the suit schedule property bearing Sy.No.15,16,22/P1, 17/1, 18/2, 19, 20, 21, 74/A, 7. In this case, as per the objection of the proposed Defendant No.6 and 7 they have purchased Sy No. 17, which is suit Item No.4 of this case. The contention of the proposed Defendants that, earlier he had filed O.S.No. 73/2015, the same was dismissed. But in this regard, why it is dismissed, which is filed in order to ascertain this facts there is no Judgment and Decree of the said proceeding. Therefore, at this juncture, the said fact cannot be decided.

8. When further contention of the proposed Defendants No.6 and 7 that the application filed by the Plaintiff lapse of 10 years i.e., barred by time. Plaintiff has to file this application within 3 years from the date of purchase of the property by the proposed Defendants No.6 and 7. In this case, the proposed Defendants No.6 and 7 not at all specifically stated

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from whom they have purchased the property is not stated, therefore it cannot be ascertained whether the Plaintiff has sold the suit property or some one else. If Plaintiff has sold the property, the contention of the proposed Defendants No.6 and 7 is holds good. But in this case, no such contention by the proposed Defendants No.6 and 7. Therefore, whatever the contention raised by the Defendants No.6 and 7 are not believable and acceptable and they have not produced any iota of documents either sale deed or Judgment in O.S.No. 73/2015 etc. The contention of the proposed Defendants No.6 and 7 only for the sake of contention no holds water at all. When the proposed Defendants No.6 and 7 are purchaser of the one of the suit Item No.4 of the suit, when the Plaintiff interested over the suit property, it is necessary to hear the purchasers before disposing the suit. Otherwise it will multiplicity of proceedings, in order to curb the same, it is better to implead the proposed Defendants No.6 and 7 as Defendants No.6 and 7 in this case. The proposed Defendants No.6 and 7 are the proper and necessary parties. Therefore, the present suit without them cannot be disposed-off. Therefore, the present application deserves to be allowed. Hence, I answered this point in the Affirmative.

9. Point No.2: In the result, I proceed to

pass the following:

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ORDER

A.No.7 filed by the Plaintiff U/O 1 Rule 10(2) of CPC is allowed.

Plaintiff is permitted to implead the proposed Defendants No.6 and 7 as Defendants No.6 and 7.

Carryout the amendment and furnish the amended plaint.

Call on 07-03-2023."

4. A perusal of the material on record including

the impugned order will indicate that the Trial Court has

taken note of the fact that the plaintiffs have contended

that the proposed defendant Nos.6 and 7 are claimed to

be purchasers of portions of the suit scheduled property

and consequently, having regard to the nature of the suit

which was one for partition and separate possession, the

alleged purchasers were both proper and necessary parties

to the suit. It is pertinent to note that the said application

I.A. No.7 was not opposed by the present petitioners, who

are defendant Nos.1 to 5 in the suit, nor can the present

petitioners said to have any locus standi to oppose the