Karnataka High Court

Sri M P Medappa vs Sharfuddin M M on 6 January, 2025

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                                                            NC: 2025:KHC:127
                                                        WP No. 57755 of 2018




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 6TH DAY OF JANUARY, 2025

                                          BEFORE
                  THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                      WRIT PETITION NO. 57755 OF 2018 (GM-CPC)
                 BETWEEN:

                      SRI M.P.MEDAPPA
                      S/O LATE POOVAIAH
                      AGED ABOUT 61 YEARS
                      R/AT KAMADENU ESTATE,
                      MADAPURA, SOMWARPET TALUK,
                      KODAGU DISTRICT-571 201
                                                                 ...PETITIONER
                 (BY SRI. MANMOHAN P.N., ADVOCATE)

                 AND:

                 1.   SHARFUDDIN M.M.
                      S/O M.K.MOHIDDIN KITTY
                      AGED ABOUT 42 YEARS
                      R/AT KALLUBANE POST
                      VIRAJPAPETE TALUK,
Digitally signed      KODAGU DISTRICT-571 201
by MEGHA
MOHAN            2.   SMT B.S.VARADHA
Location:             W/O LATE B.S.SURESH
HIGH COURT            DOOR NO.3-87, SRINIVASA NILAYA,
OF                    (SUNDARI SRINIVASA NILAYA)
KARNATAKA             DASAVALA, MADAKERI TOWN AND POST ,
                      MADIKERI TALUK, KODAGU-571 201
                                                              ...RESPONDENTS
                 (BY SRI.SHIVACHARAN, ADVOCATE FOR R2
                     R1- SERVED)

                      THIS WP IS FILED UNDER ARTICLE 227 OF THE
                 CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
                 DATED: 08.1.2018 PASSED ON I.A.NO.3 PASSED IN O.S.NO.77/2016
                 PASSED BY THE COURT OF THE SR. CIVIL JUDGE AND CJM,
                 KODAGU- MADIKERI VIDE ANNEXURE-E AND CONSEQUENTLY
                 ALLOW I.A.NO.III.
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                                                 NC: 2025:KHC:127
                                           WP No. 57755 of 2018




      THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:    HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                          ORAL ORDER

Aggrieved by the order passed in I.A.No.III in

O.S.No.77/2016 dated 08.01.2018 by the Senior Civil Judge

and CJM, Kodagu - Madikeri, the petitioner/proposed party is

before this Court.

2. The first respondent has filed the suit seeking specific

performance of an agreement of sale executed by the second

respondent herein. The second respondent's vendor and the

petitioner herein have jointly purchased the property of an

extent of 18 cents by way of a registered sale deed dated

24.08.2007. It is the case of the petitioner that there was no

partition between the petitioner and the second respondent's

vendor, but the second respondent had executed a sale deed in

favour of second respondent dated 31.03.2013. Then he had

filed the suit in O.S.No.136/2013 seeking declaration that the

said sale deed is not binding on him. That suit came to be

partly decreed wherein the trial Court has observed that the

sale deed dated 31.03.2013 is binding on the petitioner herein

NC: 2025:KHC:127

but the schedule mentioned in the sale deed is not binding on

him. Aggrieved thereby, he has preferred RFA No.1145/2017

before this Court and the same is pending consideration. In the

meantime, the second respondent herein had executed an

agreement of sale in respect of first respondent and the first

respondent has filed the suit for specific performance against

the second respondent. In that, the petitioner herein had filed

an application to implead himself as the second defendant. That

application came to be dismissed by the trial Court.

3. While dismissing the application the trial Court had

considered the judgment of the Hon'ble Apex Court in the case

of Kasturi Vs. Iyyamperumal and Others1, wherein the

Hon'ble Apex Court had held that in a suit for specific

performance of contract for sale of a property instituted by a

purchaser against the vendor, a stranger or a third party to the

contract, claiming to have an independent title and possession

over the contracted property is not entitled to be added as

party/defendant in the said suit. Considering the said

judgment, the trial Court had observed that the petitioner has

AIR 2005 SC 2813

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already obtained the relief from the Court and he can file FDP

proceedings to get his share by metes and bounds and he

cannot attempt to creep into the suit filed by a purchaser

seeking specific performance of the contract, the rights, if any

of the proposed defendant cannot be adjudicated in the suit.

Accordingly, the trial Court had dismissed the application filed

by the petitioner.

4. Learned counsel appearing for the petitioner/

proposed party submits that the trial Court had failed to

consider the fact that in the light of the judgment and decree

whereby the Court had partly decreed the suit and also

observed that the schedule mentioned in the sale deed is not

binding on the petitioner and in the facts and circumstances,

the petitioner is a proper and necessary party to the suit. It is

submitted that the reliance placed by the trial Court in

Kasturi's case do not apply to the facts of the case. Learned

counsel has relied on the judgment of the Hon'ble Apex Court

in the case of Moreshar Yadaorao Mahajan Vs. Vyankatesh

Sitaram Bhedi (D) thr. LRs. and Others2 and he submits

2022 SCC OnLine SC 1307

NC: 2025:KHC:127

that the Court had observed that in the judgment of Kasturi's

case referred supra, the question therein was as to whether a

person who claims independent title and possession adversely

to the title of a vendor could be a necessary party or not and in

that context, the judgment is passed by the Hon'ble Apex

Court. The Court held that for determining the question

whether a particular person is a proper and necessary party,

two tests are to be satisfied. The first one is that there must be

a right to some relief against such party in respect of the

controversies involved in the proceedings, the second one is

that no effective decree can be passed in the absence of such

party. Relying on this judgment, learned counsel appearing for

the petitioner submits that the trial Court had failed to consider

these aspects and dismissed the application.

5. It is submitted by the learned counsel for the

petitioner that though notice is served on respondent No.1, no

vakalath is filed on his behalf. The respondent No.2 who is the

first defendant in the suit has appeared through advocate

before this Court. In fact, he has no locus in respect of this

application that is between the plaintiff and the petitioner

herein.

NC: 2025:KHC:127

6. Learned counsel appearing for respondent No.2 who

is the defendant in the suit submits that the trial Court had

rightly considered the judgment of Hon'ble Apex Court in

Kasturi's case referred supra and rightly dismissed the

application. He submits that the petitioner could have initiated

the final decree proceedings and his remedy is not before the

Court. It is submitted that in a suit filed for specific

performance, i.e., between the parties to the agreement, a

third party's case cannot be considered.

7. Having heard the learned counsels on either side,

perused the entire material on record. The undisputed facts in

this case are that the petitioner and the second respondent's

vendor has purchased the property of an extent of 18 cents.

Now, the vendor of respondent No.2 had sold an extent of 8

cents in favour of the defendant by mentioning certain metes

and bounds which was questioned by the petitioner. According

to him, there is no partition between them and hence the

vendor of the second respondent has no right to sell. The suit

came to be partly decreed wherein the trial Court observed that

the schedule is not binding on him but the sale deed is binding

as there is no dispute with regard to the right of the second

NC: 2025:KHC:127

respondent's vendor. Against the same, RFA No.1145/2017 was

filed and the same is pending consideration. Learned counsel

had relied on the judgment of Hon'ble Apex Court in case of

Moreshar Yadaorao Mahajan referred supra, wherein the

Hon'ble Apex Court had considered the judgment in Kasturi's

case and what is the issue involved in the said case and what is

the finding of the Apex Court. Later, it is observed that to

decide a particular application whether a person is a proper and

necessary party to the suit to a particular proceedings, the

Court has to apply the two tests i.e., there must be a right to

some relief against such party in respect to the controversies

involved in the proceedings and the other is no effective decree

can be passed in the absence of such a party. In this case, in

respect of the very same property, the suit is partly decreed

and an appeal is pending before this Court. Now, if the suit for

specific performance is decreed and all the issues with regard

to the property are not brought to the notice of the Court, the

Court will not be in a position to adjudicate the dispute.

Considering all these facts and circumstances of the case, this

Court is of the view that the petitioner is a necessary party to

the suit. Accordingly, this Court is passing the following order:

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ORDER

i. The order passed in I.A.No.III in O.S.No.77/2016 dated 08.01.2018 by the Senior Civil Judge and CJM, Kodagu - Madikeri, is set aside. Consequently, I.A.No.III is allowed.