Karnataka High Court
The Army Welfare Housing Organization ... vs Mrs. Vijayamma on 6 March, 2025
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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WP No. 3176 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
WRIT PETITION NO. 3176 OF 2025 (GM-CPC)
BETWEEN:
THE ARMY WELFARE HOUSING
ORGANIZATION (REGD)
SOUTH HUTMENTS
KASHMIR HOUSE, RAJAJIMARG
NEW DELHI-110 011
REGISTERED UNDER THE SOCIETIES
REGISTRATION ACT
REPRESENTED BY ITS
PROJECT DIRECTOR
LT.COL. DEEPAK RAJ MASANAGATTA (RETD)
AGED ABOUT 50 YEARS
S/O MR. GURURAJA M
R/AT BEHIND VENKATESHWARA
ENGINEERING COLLEGE
UTTARAHALLI MAIN ROAD
Digitally signed by BILLAMARANAHALLI JALA HOBLI
HEMALATHA A
BANGALORE NORTH TALUK
Location: HIGH
COURT OF BANGALORE-562157. ...PETITIONER
KARNATAKA
(BY SRI. DHYAN CHINNAPPA, SENIOR COUNSEL FOR
SRI. AJAY KUMAR N., ADVOCATE)
AND:
1. MRS. VIJAYAMMA
AGED ABOUT 64 YEARS
W/O LATE G V SRINIVASA IYENGAR
D/O LATE B KRISHNASWAMY
R/A BILLAMARANAHALLI VILLAGE
VIDYANAGARA POST, JALA HOBLI
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WP No. 3176 of 2025
BANGALORE NORTH TALUK
BANGALORE DISTRICT - 562157.
2. MRS. SUSHEELAMMA
AGED ABOUT 62 YEARS
D/O LATE B KRISHNASWAMY
R/A SADAHALLI
DEVANAHALLI TALUK
BANGALORE DISTRICT - 562110.
AND ALSO R1 AND R2 ARE
R/AT BILLAMARANAHALLI
JALA HOBLI, VIDYANAGARA POST
BANGALORE DISTRICT-562157.
3. MR. B K SUBRAMANYAM
AGED ABOUT 63 YEARS
S/O LATE B KRISHNASWAMY
4. MR. B K RAMANATH
AGED ABOUT 58 YEARS
S/O LATE B KRISHNASWAMY
5. MR B K SHESHADRI
AGED ABOUT 46 YEARS
S/O LATE B KRISHNASWAMY
R3 TO R5 ARE R/AT
BILLAMARANAHALLI, JALA HOBLI
VIDYANAGAR POST
BANGALORE-562157.
6. M/S PRASIDDHI PROPERTIES
PRIVATE LIMITED
HAVING ITS OFFICE AT:
NO.401/2, SWASTIK, MANANDI ARCADE
F4, FIRST FLOOR, S C ROAD
SHESHADRIPURAM, BANGALORE-560 020
REGISTERED UNDER COMPANIES ACT
REPRESENTED BY ITS DIRECTOR
MR. K. SUBRAMANYA RAJU.
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WP No. 3176 of 2025
7. M/S PRASIDDHI PROPERTIES PRIVATE LIMITED
HAVING ITS OFFICE AT:
NO.401/2, SWASTIK, MANANDI ARCADE
F4, FIRST FLOOR, S C ROAD
SHESHADRIPURAM, BANGALORE-560 020
REGISTERED UNDER COMPANIES ACT
REPRESENTED BY ITS DIRECTOR
MR. B SRINIVASA.
8. M/S PRASIDDHI ASPIRATION PLOT OWNERS
ASSOCIATION
HAVING ITS OFFICE AT VILLA NO.223
PRASIDDHI ASPIRATIONS LAYOUT
AT NEW AIRPORT ROAD
BILLAMARANAHALLI VILLAGE
JALA HOBLI, BANGALORE-562157.
REPRESENTED BY ITS MANAGING COMMITTEE
MEMBERS AND AUTHORIZED SIGNATORY
MR. MATHEW GEORGE
REGISTERED UNDER THE KARNATAKA
OWNERSHIP ACT.
9. COL. (RETD) ANTONY VARGHEESE
AGED ABOUT 72 YEARS
R/AT NO. VILLA VA2-11
BILLAMARANAHALLI
BETTAHALSUR POST, JALA HOBLI
BANGALORE NORTH-562 157.
10. COL. (RETD) ROBIN ABRAHAM GEORGE
AGED ABOUT 62 YEARS
R/AT NO. VILLA VA2-11
BILLAMARANAHALLI, BETTHALSUR POST
JALA HOBLI, BANGALORE NORTH-562 157.
11. MAJOR GENERAL (RETD) R.P
RAMACHANDRA NAIDU
AGED ABOUT 83 YEARS
R/AT VILLA NO.29, VA2-29
YELAHANKA, PART B
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WP No. 3176 of 2025
BILLAMARANAHALLI
BETTAHALASUR POST
JALA HOBLI, BANGALORE-562157.
...RESPONDENTS
(BY SRI. KAMALESHWARA POOJARY., ADVOCATE FOR R1
& R2: NOTICE TO R3, R8 & R9 ARE SERVED
AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED: 16.11.2024 (ANNEXURE-
A) DISMISSING I.A.NOs. 10 AND 11. IN FDP NO.14/2022
PASSED BY THE HON'BLE III ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC AT DEVANAHALLI, BANGALORE RURAL
DISTRICT AND II ADDL. SENIOR CIVIL JUDGE AND JMFC
AT DEVANAHALLI, BANGALORE RURAL DISTRICT AND
ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
ORAL ORDER
In this writ petition, the petitioner called in question
the order dated 16.11.2024 passed by the III Additional
Senior Civil Judge and JMFC, Devanahalli on IA Nos. 10
and 11 in FDP No.14/2022, whereby the applications filed
by the petitioner/respondent No.6 to recall CW1 for further
cross-examination and for further cross-examination of
CW1, were dismissed.
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2. The plaintiffs filed a suit for partition and separate
possession. Defendant Nos. 1 to 3 sold the property in
favour of M/s.Nenni Builders and Developers, from them,
the petitioner/respondent No.6 purchased the property.
The trial court passed a preliminary decree in
O.S.No.492/2010 on 20.01.2022. The plaintiffs filed a
final decree proceedings in FDP No.14/2022. The trial
court appointed the ADLR as the Court Commissioner. The
Court Commissioner submitted a report and he has been
examined as CW1. The petitioner/respondent No.6 cross-
examined the Court Commissioner. During the course of
cross-examination, they also marked some documents
which is related to development of property, i.e., plan
sanctioned by the competent authority, etc. Since the
court has refused to mark the documents and examination
of CW1 has been closed, hence, the respondent No.6 filed
two applications to re-call CW1 for further cross-
examination and for further cross-examination of CW1.
The trial court dismissed the applications on the ground
that the documents which the petitioner/respondent No.6
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wants to mark, are already produced in the suit and in the
further cross-examination of CW1, they want to put
unnecessary questions which is not necessary for the
disposal of final decree proceedings. Hence, the
applications have been dismissed. Therefore, respondent
No.6 is before this Court.
3. Sri Dhyan Chinnappa, the learned Senior Counsel
appearing for the petitioner has contended that the
petitioner is admittedly a Welfare Housing Organization. It
has formed layout after obtaining necessary approved plan
from the competent authority, put up construction and
also formed road. To establish the same, they require to
mark the related documents such as plan sanction,
relinquishment deed, etc. Since the report submitted by
the Commissioner does not disclose regarding the
development made by respondent No.6 and also they have
disputed the Commissioner's report, therefore, the
documents are very necessary to establish their case.
Without considering this aspect of the matter, the trial
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court has erred in dismissing the application. Hence, he
sought to allow the writ petition.
4. Per contra, Sri Kamaleshwara Poojary, learned
counsel appearing for respondent Nos.1 and 2/plaintiffs
contended that in the suit for partition, the petitioner
herein is claiming as a purchaser. The purchaser is not a
necessary or proper party in the suit for partition or final
decree proceedings. In the suit, the written statement filed
by the petitioner has been rejected by the trial court, now
they cannot be permitted to produce some documents in
final decree proceedings and they cannot be permitted to
further cross-examine the Court Commissioner. He has
also placed reliance on the judgment of this Court in the
case of S.K.LAKSHMINARASAPPA, SINCE DECEASED
BY HIS LRs. vs. B.RUDRAIAH AND OTHERS reported in
ILR 2012 KAR.4129 and judgments of the Apex Court in
the case of PRADEEP MEHRA vs. HARIJIVAN
J.JETHWA (SINCE DECEASED THE LRs.) & OTHERS
reported in 2023 LiveLaw (SC) 936, in the case of
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KATTUKANDI EDATHIL KRISHNAN AND ANOTHER vs.
KATTUKANDI EDATHIL VALSAN AND OTHERS
reported in (2022) 16 SCC 71, in the case of CHANDER
BHAN (D) THROUGH LR SHER SINGH vs. MUKHTIAR
SINGH AND OTHERS in Civil Appeal No.2991/2024
disposed of on 03.05.2024 and the judgment of the
Punjab and Haryana High Court in the case of SARDAR
HARI BACHAN SINGH vs. MAJOR S.HAR BHAJAN
SINGH AND ANOTHER reported in AIR 1975 Punjab
and Haryana 205, and contended that the purchaser has
no right in the partition suit, even if he made any
development, he cannot claim any right. He further
submits that just to drag the matter, they have filed these
applications. The trial court, after considering all these
aspects rightly dismissed the applications. Hence, sought
to dismiss the writ petition.
5. Heard the learned counsel for the parties.
6. It is not in dispute that respondent Nos.1 and 2
herein filed a suit for partition and separate possession. It
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is also not in dispute that respondent No.6 purchased part
of the suit schedule property by a registered sale deed and
he was also a party in the suit in O.S.No.492/2010.
7. The specific case of the petitioner/respondent No.6
is that it is the Army Welfare Housing Organization, for the
benefit of their members, has formed residential layout
and put up construction after obtaining necessary plan
from the competent authority. Even though they have no
right in the suit for partition, since they can claim the right
through their vendors in the final decree proceedings, the
trial court appointed a Court Commissioner, the Court
Commissioner submitted the report and the same is
marked as CW1.
8. The further case of the petitioner/respondent No.6
is that in the Commissioner's report, they have not shown
the development made by the petitioner. Therefore, they
require to mark the documents related to the
development, i.e., plan sanctioned by the competent
authority, relinquishment deed, conversion order. Since
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they want to establish that they have formed the layout in
the property which they have purchased, they wants to
mark the documents to establish their case. Their main
contention is that since the Commissioner's report has not
disclosed the development, the Commissioner has not
properly prepared the report, to establish their case, they
want to mark those documents and they need to further
cross examine the Commissioner. Allowing the petitioner/
respondent No.6 to further cross-examine the Court
Commissioner will not be prejudicial to the rights of the
respondent Nos.1 and 2/plaintiffs. Even though the
petitioner/respondent No.6 has no right in the partition
suit, as held by this Court as well as the Apex Court, they
can claim equity on the basis of the right of their vendor.
They have to establish their right and to show that they
have developed the suit schedule property, in the final
decree proceedings. Under these circumstances, I am of
the opinion that the petitioner/respondent No.6 has to be
given one more opportunity to further cross-examine the
Court Commissioner, but subject to certain conditions.
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9. In view of the above, the following order is
passed:
(i) The writ petition is allowed.
(ii) The order dated 16.11.2024 passed on IA
Nos.10 and 11 in FDP No.14/2022 by the III
Additional Senior Civil Judge and JMFC,
Devanahalli is set aside.
(iii) IA Nos. 10 and 11 filed by the
petitioner/respondent No.6 under Order
XVIII Rule 17 r/w. Section 151 of CPC are
allowed.
(iv) The parties are directed to appear before the
trial court on 25.03.2025, without any
further notice.
(v) The trial court is directed to issue notice to
the Commissioner to be present on
25.03.2025.
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(vi) On 25.03.2025, petitioner/respondent No.6
has to further cross-examine the Court
Commissioner and he has to complete his
cross-examination on that day, without
taking further adjournment.
(vii) The petitioner/respondent No.6 shall not
seek for examination of any other witness
except the Court Commissioner.
(viii) Registry is directed to communicate this
order to the trial court, forthwith.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
CM/
