P. Pradeep Kumar and Others vs B.V. Kiran Kumar and Others

Budihal R.B., J.—1. Heard the arguments of learned counsel appearing for petitioner in W.P. No. 52692/2015, so also the learned counsel appearing for the petitioner in connected W.P. No. 53082/2015 and also heard the arguments of learned counsel appearing for respondents in both the petitions.

Sri. V.B. Shivakumar, learned counsel appearing for petitioner during the course of his arguments submitted that proposed applicant filed the application under Order 1 Rule 10(2) read with Section 151 of CPC in I.A. No. 8 requesting the Court that they are the proper and necessary parties in the suit and hence they may be permitted to come on record to contest the suit. Learned counsel made the submission that in reply of the objections filed to the said application, it was opposed by the plaintiff and other defendants contending that there was earlier suit in O.S. No. 18/1965 and the father of the proposed applicants was also a party to the earlier suit. A decree was passed in the said suit for partition and separate possession and the matter went upto Supreme Court and had attained finality. Learned counsel further made the submission that looking to the properties involved in the said suit, it clearly goes to show that share was also allotted to the father of the proposed applicants and division has taken place. Therefore, the present applicants have no right at all to come on record in the suit, which is inter se between the plaintiff and other defendants.

Learned counsel further submitted the contention of the proposed applicants that in respect of the agricultural properties of Lagumenahalli Village there is no division, is not at all correct submission and trial Court without taking into consideration the earlier decrees and the judgments passed, straight away allowed the application, which is illegal and it will not sustain in law. He also made the submission that proposed applicants also filed separate suit in O.S. No. 1279/2014. They can establish their rights if at all they are having rights in respect of the properties in this suit and they need not necessarily be a party to the suit filed by the plaintiff. Hence, the learned counsel submitted that writ petitions be allowed and the order which is challenged in these writ petitions may be set aside.

Sri. Pundikai Eshwar Bhat, learned counsel appearing for petitioner in another connected writ petition also made the submission that referring to the judgment and decree passed in the earlier suit O.S. No. 18/1965 he draw the attention of this Court that defendant No. 2 was the father of the present applicant and the share was allotted to the father of the applicant also in the said suit. Ultimately, it has reached finality. Therefore, applicant cannot be necessary and proper parties in this suit. He also made the submission that applicants have suppressed these material facts in order to come on record in the present suit. It is also his contention that they filed one suit earlier and withdrew the said suit. Subsequently they have filed the another suit O.S. No. 1279/2014 and said suit is still pending. If the proposed applicants are establishing their right over the suit schedule properties, definitely they can have share in the said property. Therefore, there was no necessity for the trial Court to allow the application permitting applicants to come on record in the suit, which is in between the plaintiff and other defendants. In this regard, learned counsel draw the attention of the Court to the schedule of the property in the earlier suit and the judgment and decree so also final decree proceedings. Hence, he made the submission that the order passed by the trial Court allowing the said application is illegal and same is to be set aside.

Learned counsel appearing for respondents in both the writ petitions during the course of arguments made the submission that it is no doubt true that in an earlier suit O.S. No. 18/1965 their father was a party and it was a suit for partition and separate possession. Their father also got his share and same was considered in the earlier suit, but it is the contention of the learned counsel for the respondents herein that though there was a final decree proceedings but in fact the agricultural land in properties of Lagumenahali Village were not at all partitioned i.e., claim of the proposed applicants when there is no partition effected in respect of those properties inspite of there being a decree in favour of their father, they are entitled to come on record as proper and necessary party in the present suit.

In this connection, learned counsel appearing for the respondents also made the submission that the plaintiff and other defendants suppressed the material facts and they compromised the matter between themselves even though the father of the present applicant was a party to the final decree proceedings. The LRs of said B.S. Narayana Rao were not at all brought on record and even in their absence they proceeded to get the matter disposed of. Learned counsel draw the contention of this Court to the copy of the final decree proceedings in No. 17/1998 at page No. 232 to the note and made the submission that this note itself clearly goes to show that the division in respect of the agricultural properties of Lagumenahalli Village has been postponed. Hence, he submitted that this aspect clearly goes to show that the proposed applicants are having right to come on record in the present suit. Hence, counsel submitted that there is no illegality committed by the trial Court in allowing the application and relationship is admitted. Hence, he submitted that both the writ petitions are to be rejected.

I have perused the grounds urged in both the writ petitions, impugned order passed by the trial Court on the application I.A. No. 8. I have also perused the plaint and written statement, so also the copies of the decree, copies of the final decree proceedings, which were taken place in respect of earlier suit O.S. No. 18/1965, it is true that there was a suit in O.S. No. 18/1965 and the father of the present applicants was a party in the said suit and his share was also considered in the said suit and decree was passed accordingly, but now the question is regarding the contention of the proposed applicants inspite of such decree actual division of property in respect of agricultural property, which they have claimed in the said suit whether the proposed applicants are entitled for share or not is to be ascertained by the Court. According to them in such actual division of the said properties as per the shares defined in the preliminary decree has not taken place in respect of the share fallen to their father, therefore, they are claiming the shares to the extent of their share in the suit schedule properties before the Court they wanted to come on record claiming that they were proper and necessary parties.

As it is rightly submitted by the learned counsel appearing for the proposed applicants drawing the attention of this Court to the final decree proceedings and particularly to the note about the postponement of the actual division of the property of Lagumenahalli Village, which is not explained by the other side. Relationship of the proposed applicants that they are the sons of the B.S. Narayana Rao is not in dispute and they are relevant for the suit. Under such circumstances, the trial Court held that in suit for partition all the parties ought to be the parties in the suit, therefore, the suit can be adjudicated more effectively and satisfactorily. Observing like this the trial Court allowed the said application permitting them to come on record. It may be true that they have filed separate suit O.S. No. 1279/2014 but only on that basis their claim to come on record in this suit cannot be rejected. Even if they come on record it will assist the Court in adjudicating the matter more satisfactorily and simply by impleading the proposed applicants in the said suit the plaintiffs and the other defendants will not be prejudiced. Hence, I do not find any illegality committed in the order passed by the trial Court. No merits in the both the petitions. Accordingly, both the petitions are hereby rejected.