Varadapura Gangamma vs Kolli Ratnakishor and Others

B. Veerappa, J—The petitioner who is plaintiff/decree holder filed the above writ petition against the order dated 24.11.2014 on I.A. No. 3 in FDP.13/12 allowing the application filed by the proposed respondents 12 to 15.

The present petitioner filed suit in O.S. No. 5/2010 for partition and separate possession before the Addl. Senior Civil Judge, Hospet, against her brother Varadapura Mariyappa and others in respect of suit schedule property contending that all the suit schedule properties are joint family properties and plaintiff and defendants are joint family members and according to the plaintiff the suit came to be decreed on 22.02.2011 and against the said judgment and decree the contesting defendants filed regular appeal in RA. No. 33/2011 which came to be dismissed on 4.8.2012. Subsequently, the plaintiff filed FDP. No. 13/12. During the pendency of the FDP proceedings Applicants 1 to 4 filed application under Order I Rule 10(2) read with Section 151 of the Code of Civil Procedure, contending that the respondents Varadapura Mariyappa and others are colluded together and filed a suit for partition and separate possession in O.S. No. 5/2010 and obtained a decree on 22.2.2011 by suppressing the factual facts in respect of the petition schedule at item No. 1 bearing Sy. No. 290F measuring 18 acres 73 guntas of Ankasamudra Village, H.B. Halli taluk and the said item No. 1 was purchased by the father of the applicants Koli Rama Mohan Rao under a registered sale deed dated 10.2.1969 executed by its owner by name Varadapura Hanumappa S/o Yallappa and Varadapura Yallappa and Dyamappa sons of Varadapura Tindappa jointly. The said three persons being absolute owners of said property have sold the same in favour of father of the applicants and ever since the date of sale deed, the applicant''s father and after his demise the applicants are in possession and enjoyment of the same throughout jointly and aggrieved by the illegal mutation entry made on the basis of the alleged concocted partition deed dated 28.1.2010 the respondents 1, 2, 5 to 7 and 9 to 11 got mutated their names in the mutation register on 14.10.2011. The said mutations were challenged by the applicants before the Assistant Commissioner in Revision No. Rev./ROR/Revision No. 200/2012-13 and the Assistant Commissioner after hearing both parties allowed the appeal and set aside the illegal mutations on 22.1.2013.

The respondents-1, 2, 5 to 7 and 9 to 11 preferred an appeal before the Deputy Commissioner, Bellary, in No. ROR/Rev/Appeal No. 135/2013-14 which is pending for adjudication. Therefore, the applicants filed application contending that plaintiff and defendants have deliberately suppressed the fact of execution of sale deed dated 10.2.1969 executed by their ancestors and also fact of passing orders by the Assistant Commissioner and preferring an appeal before the Deputy Commissioner, Bellary. The respondents/opponents by not disclosing the actual facts of alienation of the said property in favour of applicants'' father have obtained a preliminary decree by playing fraud on the Court. The respondents/opponents were bound to produce all relevant documents and in order to gain advantage and thereby they are guilty of playing fraud on the court as well as on the applicants. Therefore, they filed application before the trial Court.

The said application was resisted only by the petitioner/plaintiff by filing objections and other respondents/defendants have not filed objections to the impleading application. After considering the entire material on record, the trial court has allowed the impleading application and permitted the impleading applicants to come on record as respondent Nos. 12 to 13.

As against the said order, the present writ petition is filed.

I have heard the learned Counsel for the parties to the lis.

Sri. Anand R. Kolli, learned Counsel for the petitioner has contended that the impugned order passed by the trial court allowing the application for impleading the applicants as respondents 12 to 15 is contrary to law and the Trial Court cannot go beyond preliminary decree and at the most the final decree court had had to modify the shares of the parties if in the event either of the parties raise objection. But in the present proceedings respondents filed application that they have purchased the property. Therefore, the impleading respondents have their remedy elsewhere and not by filing application for impleading in the present proceedings. Therefore, he sought to set aside the impugned order passed by the trial court. The learned Counsel for the petitioner also relied on the provisions of Section 99 of the Code of Civil Procedure to the effect that no decree shall be reversed or substantially verified nor shall any case be remanded, in appeal on account of any mis-joinder or non-joinder of parties, or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. On these grounds he sought to allow the writ petition.

Per contra, Smt. K. Vidya, learned Counsel for respondents-1 to 4 sought to justify the impugned order and she also relied upon the provisions of Section 99 of the Code of Civil Procedure, which depicts that, "Provided that nothing in this Section shall apply to non-joinder of a necessary party" and submitted that the respondents are entitled to an opportunity to establish their case. Therefore, she sought to dismiss the petition.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

It is not in dispute that father of the present impleading applicants has purchased the property item No. 1 Sy. No. 290/F under registered sale deed dated 10.2.1969 and it is also not in dispute in pursuance of the entries made on the basis of the partition between plaintiff and defendants, the applicants/respondents herein have filed a revision before the Assistant Commissioner, Hospet, in Rev/ROR/Revision No. 200/2012-13. The Assistant Commissioner, Hospet, after hearing both parties set aside the mutation entries on 22.01.2013 and the same was the subject matter of the appeal before the Deputy Commissioner, Bellary, filed by the plaintiff and defendants. The said fact is not in dispute. On the basis of the registered sale deed dated 10.02.1969, the present applicants want to come on record as respondents-12 to 15. The said application was opposed by the plaintiff on the ground that allowing the said application is opposed to the provisions of Section 99 of the Code of Civil Procedure.

The provisions of Section 99 of the Code of Civil Procedure will not apply to the non-joinder of necessary parties. Admittedly, in the present case, the applicants are fighting to come on record in the suit, on the strength of the sale deed dated 10.02.1969 executed by the father of the plaintiff and defendants in favour of the father of the applicants. In the light of the material on record and pleadings and on perusing the original sale deed dated 10.12.1969, Encumbrance Certificate, Cash Paid Receipts, and other documents on record, the trial court rejected the objection raised by the plaintiff and held that the documents produced by the proposed respondents prima facie establishes their right over the said landed property. According to the proposed applicants the present respondents colluding with each other created partition deed without having right or interest over the suit property. The learned trial Judge has also recorded a finding that in the present case, the sale deed of the year 1969 and present suit and FDP proceedings are subsequent to the registered sale deed. If the proposed respondents have lawful right over the suit property and they are in actual possession over the suit property, it is just and proper to give opportunity to establish their case. If such an opportunity is refused it would lead to failure of justice and therefore, in order to adjudicate the matter finally and effectively, it is just and proper to allow the proposed respondents to implead as parties as sought for. Accordingly, the learned Trial Judge allowed the application and permitted the applicants to come on record as respondents 12 to 15.

The impugned order passed by the trial court is based on the sound principles of law and in order give an opportunity to the applicants who claims rights in pursuance of registered sale deed dated 10.02.1969 the trial court has rightly allowed the application. Accordingly, the writ petition is dismissed.

However, it is made clear that any observations made by the Trial Court in allowing the application will not influence the executing court while deciding the rights of the parties to establish independently in the execution proceedings and in accordance with law.