A purchaser of undivided interest lacks locus standi in preliminary decree proceedings of a partition suit; rights must be asserted in final decree proceedings.

ORDER :

(M. NAGAPRASANNA, J.)

The petitioners / plaintiffs 1 and 2 call in question an order dated 29-02-2024 passed by the Principal Senior Civil Judge and JMFC, Kunigal, on an application - I.A.No.II filed under Order I Rule 10 (2) of the Code of Civil Procedure in O.S.No.176 of 2021, whereby, the said application seeking permission to implead proposed defendant therein, on record as defendant No.31, is dismissed.

2. Heard Sri P.S.Divakara, learned counsel for petitioners and Sri B.N.Prakash, learned counsel for respondent No.31.

3. Facts, in brief, germane are as follows: -

A suit in O.S.No.176 of 2021 is preferred by the plaintiffs seeking partition of the suit schedule properties claiming that they are entitled to 1/7^th share in the joint family properties. An impleading application – I.A.No.II is preferred by the plaintiffs seeking to implead the proposed defendant as party defendant No.31 in O.S.No.176 of 2021 contending that he is a necessary party to the suit. The said application comes to be rejected by an order dated 29.02.2024. The rejection of the application has driven the plaintiffs to this Court in the subject petition.

4. The learned counsel appearing for the petitioners contends that the proposed defendant No.31 has purchased item Nos.1 to 4 and 14 of the suit schedule properties in order to deprive the petitioners from claiming 1/7^th share in the suit schedule properties. To enable complete adjudication, the proposed defendant is a necessary party. The learned counsel submits that the application ought to have been allowed and denial of it would lead to multiplicity of proceedings. He would submit that sale deeds come to be executed during subsistence of the suit for partition and proposed defendant No.31 is the purchaser of the property.

5. The learned counsel for respondent No.31 / proposed defendant submits that he is neither a proper nor necessary party as rights have been crystallized in the proceedings in O.S.No.29 of 2017. Therefore, he should not be permitted to be impleaded as a defendant, as he has nothing to do with the partition between the plaintiffs and the defendants.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

7. The afore-narrated facts are not in dispute. The proposed defendant No.31 is the purchaser of the property during the pendency of the suit is the contention of the learned counsel for the petitioners. The suit instituted is one for partition and separate possession. It is between the members of the family. The purchaser – proposed defendant has purchased undivided interest in the suit schedule property. He is not the one who should come at the preliminary decree proceedings. He can always work out his remedies in the final decree proceedings is the settled principle of law. The concerned Court has rendered the following reasons to reject the application:

“12. A further perusal of the materials on record would also indicate that the plaintiffs have filed the present suit for the relief of partition and separate possession of the suit schedule properties. They contend that the proposed defendant is a necessary party to the present suit by virtue of the proposed defendant having purchased suit items no.1 to 4 and 14 of the suit schedule properties vide sale deed dated 28-07-2023. Be that as it may, the fact remains that the proposed defendant as per the plaintiffs is the purchaser of undivided interest, as the plaintiffs contend that there is no partition of the suit schedule properties between them and the defendants till date. Under the circumstances, it is quite clear that the proposed defendant is purchaser of the undivided interest of the plaintiffs in the suit schedule properties.

13. In this connection, it is relevant to refer to the judgment