The Hussania Masjid Charitable Trust vs Jayamma

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 11.10.2013 passed on the interlocutory application filed under Order I Rule 10 of CPC in FDP No. 25026/2012.

The petitioner herein claiming to have purchased a portion of the property which is the subject matter of division in final decree proceedings in FDP No. 25026/2012, had filed an application seeking to implead himself as respondent No. 13 to the said proceedings. The said application filed under Order I Rule 10 of CPC has been dismissed by the Court below by the order impugned. The said order is assailed in the instant petition.

The respondent herein who is the petitioner to the final decree proceedings is opposing the petition. Objection statement has been filed to the writ petition contending that the Court below was justified in its conclusion.

Heard the learned counsel for the parties and perused the petition papers.

The petitioner while claiming right to be impleaded to the said proceedings in FDP No. 25026/2012 would contend that though they may not be a necessary party, but is certainly a proper party to the said proceedings. It is their case that they have purchased a portion of the property as per the schedule indicated in the absolute sale deed dated 28.03.2002. Subsequent thereto, they claims that they are in possession of that portion and a construction has been put up. Presently, by final decree proceedings while demarking the portions of the property to the family members who are parties to the said proceedings, the property purchased by them also would be a portion and therefore, they are a necessary party to be impleaded to the said proceedings.

It is the case of the learned counsel for the respondent that the claim as made by the petitioner herein under the sale deed dated 28.03.2002 cannot bind the petitioner to the final decree proceedings or any of the family members as there is no relationship between the vendor therein i.e., Smt. Mariyamma and the family members. Further, it is also the case of the respondent that the very construction put up by the petitioner herein is unauthorized and this Court in an earlier writ petition in W.P. No. 20607/2009 having taken note of this aspect had passed orders for demolition though the same is a subject matter in the appeal. It is therefore contended that when the petitioner has no right whatsoever in respect of the property, he is neither a proper nor necessary party to the said proceedings. Hence, it is contended that the Court below was justified in dismissing the application.

In the light of the rival contentions, a perusal of the papers and the nature of the claim as made by the petitioner herein seeking to be impleaded to the final decree proceedings would have to be taken into consideration only to come to the conclusion as to whether the application should be allowed and whether the petitioner should be granted an opportunity to come on record as party and the scope of the instant petition would not be to determine the title or rights of the parties.

Therefore, limited to this aspect, a perusal of the order impugned at Annexure-H would disclose that the Court below though has taken note of the decision of the Hon''ble Supreme Court to come to a conclusion as to whether the petitioner should be considered as a proper or necessary party, the nature of the right as claimed which is ultimately to be decided has not been appropriately taken into consideration. A perusal of the sale deed dated 28.03.2002 based on which the petitioner claims right to have purchased the property stated therein which is a portion of the subject matter of the final decree proceedings would indicate that while tracing the title of the vendor therein, reference has been made to the fact that the property originally belonged to Sri B. Nanjundappa and the property was purchased by the said Sri Nanjundappa from the L.Rs. of late Munimarappa. The recital therein if noticed would indicate that the L.Rs. of Munimarappa are also parties to the instant final decree proceedings.

Be that as it may, in the present final decree proceedings while earmarking the shares, if any other person has purchased any portion of the property, certainly such purchaser would have a right to come on record and seek for equitable allotment of such portion of the property to the family members who had sold the property to such purchaser so as to protect the purchase. Therefore, even if the applicant herein does not have any independent right in respect of the property in the final decree proceedings, certainly they are proper party to the said proceedings to come on record and seek for allotment of the shares purchased by them from the family members to whom the right could be traced in respect of the said property. Therefore, to the said extent, the Court below ought to have allowed the application.

In respect of the contention put forth by the respondent that the construction put up therein is unauthorized and this Court taking note of the same has directed demolition of the same, apart from the fact that the said issue is pending in a writ appeal, such conclusion is only with regard to the validity of the construction put up and not with regard to the ownership of the property. Therefore, if the petitioner is allowed to come on record in the final decree proceedings and since in the said proceedings a Commissioner viz., Surveyor has already been appointed, the report to be submitted by the Surveyor to bring on record the factual possession as to whether the petitioner/applicant who is brought on record is actually in possession of any portion of the property which is the subject matter of the final decree proceedings would enable the Court below ultimately to come to an appropriate conclusion.

Therefore, I am of the opinion that the Court below was not justified in rejecting the application through its order dated 11.10.2013 and the order impugned is accordingly set aside. The application filed by the petitioner under Order I Rule 10 of CPC is allowed. The Court below is directed to permit the petitioner to come on record as additional respondent and put forth his contentions in the proceedings. Any of the observations made with regard to the right to the property shall not weigh in the mind of the Court below, but the Court below shall determine the right of the parties independent of the same. Further, the Court below shall now dispose of the matter in an expeditious manner, if the report of the Commissioner has already been received.

In terms of the above, the petition stands disposed of.