The petitioner aggrieved by the order dated

22.03.2016, passed on I.A.No.15 in FDP No.44/2003

by the XXXI Addl. ACCJ, Bengaluru has filed the

present writ petition.

5

2. Brief facts leading rise to filing of this writ

petition are as under:

One T.V.Krishnappa filed a suit for partition and

separate possession against the respondents in

O.S.No.2103/1982. The said suit came to be decreed

vide

judgment

and

preliminary

decree

dated

07.11.2002. Original defendant No.1 in the said suit

aggrieved by the judgment and preliminary decree,

preferred an appeal in RFA No.403/2003 before this

Court. This Court vide judgment and decree dated

01.07.2010, dismissed the appeal. Thereafter, FDP

proceedings are initiated by respondents No.1 and 2 in

FDP No.44/2003. In the said FDP proceedings, the

petitioner filed an application to implead him as

proposed defendant No.5. In support of the

application, the petitioner filed an affidavit contending

that the proposed defendant is a registered Women

Voluntary Organization sponsored by the Central

6

Social Welfare Board. It is contended that one

V.Venkatappa, the absolute owner of the piece and

parcel of the property of land and building No.114,

New No.24, entered into an agreement/memorandum

of understanding dated 26.11.1979, agreeing to sell

the aforesaid property in favour of petitioner. It is

contended that the petitioner requested V.Venkatappa

to execute a registered sale deed during his lifetime,

but due to non-possibility to immediately bifurcate the

entire property, could not execute a registered sale

deed. Meanwhile, V.Venkatappa died leaving behind

the respondents along with other legal heirs. It is

contended that the petitioner filed a suit in O.S.

No.26944/2011 for the relief of specific performance

of contract, which is pending for consideration. In

view of the same, if any order is passed in the FDP

proceedings, his right will be infringed. Hence it is

7

stated that the petitioner is a proper and necessary

party. Hence prayed to allow the application.

Per contra, respondents filed objections to the

said application denying the averments made in the

application. It is contended that the petitioner has

filed a suit in O.S.No.26944/2011 on the basis of

concocted agreement dated 26.11.1979. It is further

contended that the petitioner is a stranger to the suit

schedule property and the petitioner is not a party in

O.S.No.2103/1982

or

in

the

appeal

in

RFA

No.403/2003 or in any of the proceedings of the suit

schedule property. It is further contended that the

alleged agreement/MOU is claimed to be executed on

26.11.1979 and the suit in O.S.No.26944/2011 is filed

after 36 years from the date of alleged agreement/

MOU. It is further contended that the suit filed by the

petitioner is barred by limitation. Hence prayed to

reject the application.

8

The Trial Court after hearing the parties,

rejected the application filed by the petitioner. Hence

this writ petition.

3. Heard learned counsel for petitioner and

learned counsel for respondents.

4. Learned counsel for the petitioner submits

that the petitioner is a proper and necessary party in

the said suit as the portion of the suit schedule

property is the subject-matter of agreement of

sale/MOU dated 26.11.1979 and is also subject-matter

of FDP proceedings. He further submits that the Trial

Court has committed an error in rejecting the said

application. He further submits that the observation

made in the impugned order that suit in O.S.No.

26944/2011 filed by the petitioner after 32 years from

the date of agreement of sale/MOU, is highly

misplaced and unwarranted. In order to buttress his

9

argument, he has placed reliance on the following

citations:

1. 1998 SCC Online KAR 275 in the case of Smt.

Ashwathamma vs. H.M.Vijayaraghava

2. (2007)

10

SCC

719

in

the

case

of

Dhanalakshmi & Ors. Vs. P. Mohan & Ors.

3. (1983) 1 SCC 18 in the case of Khemchand

Shankar Choudhari & Anr. Vs. Vishnu Hari

Pater and Ors.

Hence, on these grounds