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2019 Supreme(Kar) 1532
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B. VEERAPPA, J.
Smt. Jayamma D/o Late H.M. Hanuma Reddy – Appellant
Versus
H. Thippa Reddy S/O Late H.M. Hanuma Reddy & Ors. – Respondents
Writ Petition No.55 of 2019 (GMCPC)
Decided on : 20-03-2019
Advocate Appeared:
For the Appellant :SRI G. S. VENKAT SUBBA RAO, ADVOCATE
For the Respondent:SRI G. NAGARAJA, SRI G.S. PRASANNA KUMAR, SRI C. SHANKAR REDDY, ADVOCATE
Headnote:
Constitution of India, 1950 - Suit for partition and separate possession - Family properties - Whether trial Court is justified in passing impugned order rejecting application filed by plaintiff Order Rule of Code of Civil Procedure to impaled pendent late purchaser as additional defendant in facts and circumstances case – Held, Plaintiff filed suit for partition and separate possession contending that he is entitled to share though he has pleaded in plaint that there was earlier partition in year - Contesting defendants filed written statement and contended that very suit filed by plaintiff is not maintainable - It is also not in dispute that trial Court granted order of injunction restraining all defendants from alienating suit schedule properties - Said order of injunction is still operating till today - When order of injunction was operating plaintiff filed memo withdraw suit against defendant in respect of item of suit schedule property which came to be allowed – Court do not know what prompted plaintiff to file an application recall order withdrawal of suit against defendant in respect of item suit schedule property - In interregnum during existence of order of injunction defendant sold item suit schedule property to proposed defendant Infra Con registered sale deed for valuable consideration cores - Admittedly plaintiff already filed an application Order Rule of Code of Civil Procedure - Separately numbered and same is pending for enquiry - Petition dismissed
ORDER :
The plaintiff filed the present writ petition against the order dated 20.12.2018 on I.A. No.30/2018 in O.S. No.1754/2006 on the file of the XXII Additional City Civil & Sessions Judge, Bengaluru rejecting the application filed by the plaintiff under Order 1 Rule 10(2) r/w Section 151 of the Code of Civil Procedure to implead the subsequent purchaser during the pendency of the suit.
2. The plaintiff filed the suit for partition and separate possession in respect of the suit schedule properties contending that the suit schedule properties are the joint family properties. It is stated in the plaint that on 29.11.1971 a partition was effected amongst Hanuma Reddy and his children and at that partition, Hanuma Reddy was allotted certain properties as shown in schedule-A of the plaint. It is further stated in the plaint though Sy.No.19 was purchased by Hanuma Reddy, it has been partitioned and all acquisitions by Hanuma Reddy or other members of the family are out of joint family members. The joint family of Hanuma Reddy has already been in afferent circumstances. As the family was joint in full, all the properties were enjoyed jointly. Though some of the properties were purchased in the name of the coparceners, all the properties were being enjoyed commonly etc. On these and other contentions, the plaintiff sought for partition and separate possession of the suit properties and for Permanent Injunction.
3. The contesting defendants filed the written statement contending that in view of the earlier partition, the very suit filed by the plaintiff is not maintainable and sought for dismissal of the suit.
4. The defendant No.24 who purchased item No.4 of the suit schedule property in the year 1970 i.e., prior to filing of the suit, filed an application under Order 1 Rule 10 of the Code of Civil Procedure, which came to be allowed. The defendant No.24 also filed the written statement. The trial Court during the pendency of the proceedings on 25.11.2010 granted the order of Temporary Injunction restraining the defendants from alienating the suit schedule properties. Against the order passed by the trial Court, Miscellaneous First Appeal came to be filed before this Court by some of the defendants, which came to be dismissed.
5. It is further case of the petitioner that on 24.7.2017 the present petitioner – plaintiff filed memo to withdraw the suit against the defendant No.24 in respect of item No.4 of the ‘C’ suit schedule properties. The trial Court allowed the memo on 10.8.2017 and permitted to withdraw the suit against the defendant No.24 in respect of item No.4 of the ‘C’ suit schedule property. Thereafter on 4.11.2017 the plaintiff filed an application to recall the order dated 10.8.2017. In the mean time, the defendant No.24 sold item No.4 of the suit schedule property on 24.1.2018 in favour of M/s Sumadhura Infra Con Pvt. Ltd., and thereafter the matter was posted on 24.4.2018. On 24.4.2018, the Court posted the application filed by the plaintiff for recalling, along with the main suit. That was the subject matter of Writ Petition No.22941/2018. During the pendency of the writ petition, the said application for recalling was allowed on 7.12.2018 and the writ petition came to be dismissed as withdrawn. Thereafter the plaintiff filed I.A. No.30 for impleadment of pendente lite purchaser on 15.12.2018. The defendant No.24 alone filed objections. The trial Court by the impugned order dated 20.12.2018 rejected the said application. Hence the present writ petition is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri G.S. Venkat Subbarao, learned counsel for the petitioner – plaintiff contended with vehemence that the impugned order passed by the trial Court rejecting the application filed by the plaintiff to implead the purchaser of item No.4 of the ‘C’ suit schedule properties during pendente lite of the suit, is erroneous and contrary to the material on record. He would further contend that the defendant N
