NAZEERAHAMED S/O. SHAMSUDDIN PATVEGAR vs. VIJAY S/O. GANGADHAR JAKKANNAVAR

1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 16th DAY OF OCTOBER, 2012 BEFORE THE HON’BLE MR.JUSTICE RAM MOHAN REDDY WRIT PETITION No.68549/2011 (GM-CPC) BETWEEN: Shri Nazeerahamed, S/o Shamsuddin Patvegar, Age 44 years, Occ: Business, R/o New Gandhi Nagar, Belgaum-590 016. Petitioner (By Sri Shrikant R. Sattigeri, Adv.) AND: 1. Shri Vijay, S/o Gangadhar Jakkannavar, Age: 60 years, Occ: Agriculture, R/o Balekundri KH Village, Taluk & District: Belgaum. 2. Smt. Sumitra Neminath Inchal, Age: 75 years, Occ: Household work, R/o H.No.533, Math Galli, Belgaum-590 001. 3. Smt. Sunanda Baburao Mutagi, Age: 67 years, Occ: Household work, R/o Mahantesh Nagar, 7th Cross, K.M.F. Dairy, Belgaum-590 016.

2 4. Smt. Shakuntala Mahaveer Chougule, Age: 58 years, Occ: Household work, R/o Math Galli, Belgaum-590 001. 5. Smt. Kasturi Kallappa Chougule, Age: 52 years, Occ: Household work, R/o Mutaga, Tq. & Dist:Belgaum. 6. Smt. Nirmala Manohar Kodachawad, Age: 45 years, Occ: Household work, R/o Keshwapur, State Bank Colony, Hubli. 7. Smt. Jayashree Devendra Narasagouda, Age: 42 years, Occ: Household work, R/o Basti Galli, Majagaon, Taluk & Dist: Belgaum. 8. Smt. Sumati Anant Chougule, Age: 39 years, Occ: Household work, R/o Tanaji Galli, Belgaum-590 001. Respondents (By Sri M.G.Naganuri, Adv. for C/R-1) This writ petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order on I.A. No.II dated 17.11.2011 passed by the learned II Addl. Senior Civil Judge, Belgaum, in O.S.No.74/2010 produced at Annexure-F. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY THE COURT MADE THE FOLLOWING: ORDER The rejection of petitioner’s I.A.No.2 under Order I Rule 10(2) of Code of Civil Procedure to be impleaded as defendant No.8 in O.S.NO.74/2010 before the II Addl.

3 Senior Civil Judge, Belgaum, by order dated 17.11.2011, has resulted in this petition. 2. Petitioner filed I.A.No.2 to be impleaded as proper and necessary party to the suit for declaration and injunction instituted by the first respondent arraigning respondent Nos. 2 to 8 as defendant Nos.1 to 7. In the affidavit accompanying the application, it was stated that the property bearing R.S.No.1146/2 measuring 1 acre 3 guntas in Belgaum city is subject matter of a sale agreement executed by respondent Nos.1 to 4 and 6 to 7 in favour of petitioner for a total consideration of Rs.60,20,000/- as against an earnest money deposit of Rs.10,00,000/- paid in cash while the balance of Rs.50,20,000/- agreed to be paid in four installments of Rs.5,00,000/- each spread over 30 days, and the balance of Rs.30,20,000/- to be paid within four months thereafter. In addition it was alleged that defendants 1 to 3, 5 and 6 executed a General Power of

4 Attorney appointing the 7th defendant as their attorney to enter into the transaction on their behalf. Armed with the said agreement of sale termed as ‘Smaranartha Tippan’ sought impleadment in the suit as a proper and necessary party. 3. That application was opposed by filing statement of objections of the plaintiff, inter-alia contending that the property having fallen to the share of the plaintiff in a partition dated 25.02.1970, defendants 1 to 7 had no right, title and interest in the said property. It was also pointed out that at paragraph No.9 of the written statement filed by defendant No.7 it is admitted that the suit survey number fell to the share of plaintiff under a registered partition deed dated 25.02.1970. 4. The trial court having regard to the pleadings of the parties and that the suit for declaration is based upon the partition deed, held that the answers to the issues for decision making could be decided even

5 without the presence of the third party and accordingly, rejected the application. 5. The submission of the learned Counsel for the petitioner that in order to avoid multiplicity of proceeding and conflicting decision in different suits, the application deserved to be allowed, I am afraid, in the circumstances is unacceptable. The agreement of sale in the form of ‘Smaranartha Tippan’ is sought to be invoked by the petitioner to claim to be a necessary and proper party to the suit. That agreement must be proved in a trial in an appropriate suit, and if the petitioner-applicant is declared to have a right over the land in question, and since admittedly the plaintiff is not a signatory to the said agreement, the petitioner is neither a necessary nor proper party for a complete and effective decision over the rights of the plaintiff vis-à-vis defendants 1 to 7 in the immovable property in question.

6 6. In the circumstances, it cannot be but be said that the petitioner is neither a necessary nor proper party to the suit instituted by the plaintiff. 7. Before parting with this case, it is essential to notice that the petitioner claims to have paid Rs.10,00,000/- in cash, though Section 269SS of the Income Tax Act, 1961 prohibits payment of cash in excess of Rs.20,000/- in any transaction. In that view of the matter, it is not known as to how such a large sum of money was paid in cash. This needs an investigation by the Income Tax Department. First respondent-plaintiff is reserved the liberty to make necessary representation to the Income Authorities enclosing a copy of the ‘Smaranartha Tippan’ which there is no reason to believe will not be enquired into by the authorities. 8. Petition devoid of merits is rejected. SD/- JUDGE mkc