MUKTAMMA vs MARUTHI S/O LATE SHANKARAPPA SINCE DECEASED REP BY LRS 1) SARASWATI
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
TH
DATED THIS THE 29 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO. 203998 OF 2026 (GM-CPC)
BETWEEN:
MUKTAMMA W/O ZEERAPPA
AGED 85 YEARS, OCC: H.H.WORK
R/O. NEAR AMBEDKAR BHAVAN
ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
…PETITIONER
(BY SRI. YASHAS S. DIKSHIT., ADVOCATE)
AND:
MARUTHI
S/O LATE SHANKARAPPA
SINCE DECEASED REP. BY LR’S
SARASWATI
W/O LATE MARUTHI
AGE: 75 YEARS, OCC: H H WORK
R/O NEAR PRIMARY SCHOOL
ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
Digitally signed
by SWETA
KULKARNI
Location: HIGH
COURT OF
KARNATAKA
1.
VEERSHETTY S/O LATE SHANKARAPPA
SINCE DECEASED REP BY LR'S
MAHADEVI W/O LATE VEERSHETTY
AGE: MAJOR, OCC: HH WORK
R/O NEAR PRIMARY SCHOOL
ALIYABAD VILLAGE
TQ. AND DIST BIDAR-585401
2.
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3. LAXMI D/O LATE VEERSHETTY
AGE: MAJOR, OCC: HH WORK
R/O: ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
4. PRIYA D/O LATE VEERSHETTY
AGE: MAJOR, OCC: HH WORK
R/O ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
5. ESHWAR S/O LATE VEERSHETTY
AGE: MAJOR, OCC: HH WORK
R/O ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
6.
AMBIKA
D/O LATE VEERSHETTY
AGE: MAJOR, OCC: HH WORK
R/O ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
7. RADHIKA
D/O LATE VEERSHETTY
AGE: MAJOR, OCC: HH WORK
R/O ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
GOUTAM S/O LATE SHANKARAPPA
SINCE DECEASED RP BY LR’S
MANGALA W/O LATE GOUTAM
AGE: MAJOR, OCC: HH WORK
R/O ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
9. MAHESHWARI D/O LATE GOUTAM
AGE: MAJOR, OCC: HH WORK
R/O ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
8.
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10. DEEPAK
D/O LATE GOUTAM
AGE: MAJOR, OCC: HH WORK
R/O ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
11.
RAJKUMAR
S/O LATE SHENKARAPPAGE
AGE: 55 YEARS, OCC: COOLIE
R/O NEAR PRIMARY SCHOOL
ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
12. ASHOK
S/O LATE KASHINATH
AGE: 45 YEARS, OCC: COOLIE
R/O ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
13. RAMESH S/O MALKAPPAGE
AGE: 48 YEARS, OCC: AGRI
R/O ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
MALASHREE W/O SHRIMANTHGE
SINCE DECEASED DELETED AS PER ORDER
DATED 29-03-2025
SHRIMANTH
S/O RAJKUMAR JOSHI
AGE: 45 YEARS, OCC: H H WORK
R/O #150 ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
15. NAGSHETTY S/O VIJINATH SIRSE
AGE: 49 YEARS, OCC: AGRI
ND
R/O H.NO. 4131, 2 MAIL ROAD
ND
B BLOCK, RAJAJINAGAR, 2 STAGE
SUBRAMANYA NAGAR, BANGLORE-560010
14.
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16. VITTHAL
S/O LATE NARSU @ NARSAPPA
AGE: 77 YEARS, OCC: AGRI
R/O. NEAR AMBEDKAR BHAVAN
ALIYABAD VILLAGE
TQ AND DIST: BIDAR-585401
17. SUBHAS
S/O LATE NARSU @ NARSAPPA
AGE: 60 YEARS, OCC: AGRI
R/O. NEAR AMBEDKAR BHAVAN
ALIYABAD VILLAGE,
TQ. AND DIST: BIDAR-585401
JAGADEVI W/O NAGNATH
SINCE DECEASED BY LRS
ANKUSH
W/O NAGNATH
AGE: 30 YEARS, OCC: AGRI
R/O. ALIYABAD VILLAGE, NAUBAD
TQ. AND DIST: BIDAR-585401
19. SANJEEV
S/O LATE SHARANAPPA
AGE: 45 YEARS, OCC: AGRI
R/O. NEAR AMBEDKAR BHAVAN
ALIYABAD VILLAGE,
TQ AND DIST BIDAR-585401
20.
TUKARAM
S/O LATE SIDDAPPA
AGE: 73 YEARS, OCC: AGRI
R/O ALIYABAD,TQ AND DIST: BIDAR-585401
…RESPONDENTS
18.
(R1 TO R4 SERVED UNREPRESENTED;
R15 NOTICE DISPENSED WITH;
R16 TO R19 SERVED AND UNREPRESENTED
SRI.S.R.KADLOOR ADV., FOR R20)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO, I) ISSUE THE
WRIT OF CERTIORARI THE ORDER ON IA-13 DATED
14.08.2026 PASSED BY II ADDL. SENIOR CIVIL JUDGE AND
JMFC BIDAR IN O.S.NO.323/2023 WHICH IS AN ANNEXURE-E;
II) ISSUE ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION AS THIS HONOURABLE COURT MAY DEEM FIT TO
GRANT IN THE CIRCUMSTANCES OF THE CASE.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This writ petition is filed seeking the following
prayers:
“ I) Issue the Writ of certiorari the order on IA-13
dated 14.08.2026 passed by II Addl. Senior Civil Judge
and JMFC Bidar in O.S.No.323/2023 which is an
Annexure-E;
II) Issue any other appropriate writ, order or
direction as this Hon’ble Court may deem fit to grant in
the circumstances of the case, in the interest of justice. ”
2. Heard Sri. Yashas S Dikshit, learned counsel
appearing for the petitioner, Sri. S.R.Kadloor, learned
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counsel appearing for respondent No.20 and meticulously
perused the material available on record.
3. The petitioner and four other persons have filed a
suit in O.S.No.323/2023 before the II Additional Senior
Civil Judge and J.M.F.C., Bidar seeking a declaration that
the plaintiffs are the exclusive owners in possession of the
suit ‘A’ schedule property. They have also sought a
declaration that the alleged registered sale deed dated
14.03.2023 executed by defendant No.4 is null and valid,
that the gift deed dated 11.05.2023 is null and void, and
further that the registered agreement of sale dated
01.07.2023 executed by defendant No.6 in favour of
defendant No.7 is null and void, along with other
consequential reliefs.
4. In the said suit, the defendants filed their written
statement denying the plaint assertions. Respondent
No.20 herein filed an application under Order I Rule 10(2)
read with Section 151 of the Code of Civil Procedure, 1908
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seeking to implead himself as defendant No.8 in the suit
filed by the petitioner and others.
5. The said application was opposed by the plaintiffs.
Under the impugned order, the trial Court allowed the
application, by recording that the proposed defendant
claims succession through one Shivayya, whose name is
mentioned in the Khasara Patrika to the subject land. The
trial Court further recorded that the discrepancies in the
Khasara Patrika and the other issues could be examined in
a full-fledged trial. On the said reasoning, the trial Court,
allowed the application and ordered for impleadment of
the proposed defendant.
6. The contention of the proposed defendant is that
one Shivayya S/o Lalayya, was his paternal grandfather
and the owner of land bearing Survey No.15 measuring 3
acres 10 guntas, situated at Village Bag-e-Karanja, Taluk
and District Bidar and his name was recorded in the
Khasara Patrika for the year 1954-55. Claiming to be the
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legal heir of late Shivayya S/o Lalayya, the proposed
defendant contends that he is a necessary and proper
party to the suit filed by the petitioner and others, which is
a suit for declaratory reliefs.
7. Learned counsel appearing for the proposed
defendant places reliance on the pleadings in
O.S.No.73/2020 and submits that one Baswaraj had filed a
suit for partition and separate possession in respect of the
very same property, wherein the petitioner herein and the
proposed defendant were arrayed as defendant Nos.1 and
2 respectively.
8. In paragraph No.2 of the plaint filed by Basawaraj
in the said suit, Basawaraj had pleaded that the plaintiff’s
grandfather namely, Narsappa, owns the suit schedule
land and another brother of plaintiff’s grandfather, Sitya,
who died issue-less, and the grandfather of the plaintiff
were the actual owner in possession of the suit schedule
land and grandfather of the plaintiff (Basawaraj),
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Narsappa died in the year 1970, leaving behind his son,
Siddappa S/o Narsappa, the father of the plaintiff, leaving
behind his two sons Baswaraj S/o Siddappa (plaintiff) and
Tukaram S/o Siddappa, who is none other than the
proposed defendant.
9. Learned counsel appearing for the proposed
defendant, further places reliance on paragraph No.6 of
the plaint in the said suit and submits that the plaintiff
(Baswaraj) had sought for a declaration that the registered
agreement executed by the present petitioner herein,
Muktamma, as null and void and the aforesaid pleadings
clearly establishes that the proposed defendant has a right
and interest over the suit schedule property and the trial
Court was justified in allowing the application for
impleadment.
10. It is to be noticed that the proposed defendant,
in his application for impleadment, asserts that one
Shivayya S/o Lalayya, was his paternal grandfather owns
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the suit schedule property, and his name was found in
Khasara Pathrika for the year 1954-55. Based on such
assertions and lineage, the proposed defendant intends to
come on record in the suit filed by the petitioner and
others.
11. In my considered view, the right of the proposed
defendant, if any, is an independent right, which cannot be
adjudicated upon in the suit filed by the petitioner herein
and others. The said suit is one for a declaration of
ownership and declarations that the registered
instruments in question are null and void. The plaintiffs
cannot be compelled to implead a person who seeks to
assert an independent right over the suit schedule
property, particularly when the adjudication of such a
claim would enlarge the scope of the suit. If the proposed
defendant claims an independent right, it is open for him
to institute an appropriate independent proceedings to
establish such a right, in accordance with law.
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12. My view finds support from the decision of the
MUMBAI
Hon'ble Supreme Court in the case of
INTERNATIONAL AIRPORT PRIVATE LIMITED Vs.
REGENCY CONVENTION CENTRA AND HOTELS AND
1
OTHERS
. Paragraph Nos.22 to 25 of the said judgment
reads as under:
22.
Let us consider the scope and ambit of Order
“
1 Rule 10(2) CPC regarding striking out or adding parties.
The said sub-rule is not about the right of a non-party to
be impleaded as a party, but about the judicial discretion
of the court to strike out or add parties at any stage of a
proceeding. The discretion under the sub-rule can be
exercised either suo motu or on the application of the
plaintiff or the defendant, or on an application of a person
who is not a party to the suit. The court can strike out any
party who is improperly joined. The court can add anyone
as a plaintiff or as a defendant if it finds that he is a
necessary party or proper party. Such deletion or addition
can be without any conditions or subject to such terms as
the court deems fit to impose. In exercising its judicial
discretion under Order 1 Rule 10(2) of the Code, the court
will of course act according to reason and fair play and
not according to whims and caprice.
1
AIR 2010 SC 3109
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23.
This Court in Ramji Dayawala & Sons (P) Ltd. v.
Invest Import [(1981) 1 SCC 80] reiterated in SCC p. 96,
para 20 the classic definition of “discretion” by Lord
Mansfield in R. v. Wilkes [(1770) 4 Burr 2527 : 98 ER 327
: (1558-1774) All ER Rep 570] (ER p. 334) that
“discretion”
when applied to a court of justice, means
“
sound discretion guided by law. It must be
governed by rule, not by humour: it must not be
arbitrary, vague, and fanciful; but legal and
regular .”
24.
We may now give some illustrations regarding
exercise of discretion under the said sub-rule.
24.1
If a plaintiff makes an application for
impleading a person as a defendant on the ground that he
is a necessary party, the court may implead him having
regard to the provisions of Rules 9 and 10(2) of Order 1.
If the claim against such a person is barred by limitation,
it may refuse to add him as a party and even dismiss the
suit for non-joinder of a necessary party.
24.2
If the owner of a tenanted property enters
into an agreement for sale of such property without
physical possession, in a suit for specific performance by
the purchaser, the tenant would not be a necessary party.
But if the suit for specific performance is filed with an
additional prayer for delivery of physical possession from
the tenant in possession, then the tenant will be a
necessary party insofar as the prayer for actual
possession.
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24.3
If a person makes an application for being
impleaded contending that he is a necessary party, and if
the court finds that he is a necessary party, it can implead
him. If the plaintiff opposes such impleadment, then
instead of impleading such a party, who is found to be a
necessary party, the court may proceed to dismiss the
suit by holding that the applicant was a necessary party
and in his absence the plaintiff was not entitled to any
relief in the suit.
24.4
If an application is made by a plaintiff for
impleading someone as a proper party, subject to
limitation, bona fides, etc., the court will normally implead
him, if he is found to be a proper party. On the other
hand, if a non-party makes an application seeking
impleadment as a proper party and the court finds him to
be a proper party, the court may direct his addition as a
defendant; but if the court finds that his addition will alter
the nature of the suit or introduce a new cause of action,
it may dismiss the application even if he is found to be a
proper party, if it does not want to widen the scope of the
specific performance suit; or the court may direct such
applicant to be impleaded as a proper party, either
unconditionally or subject to terms. For example, if D
claiming to be a co-owner of a suit property, enters into
an agreement for sale of his share in favour of P
representing that he is the co-owner with half-share, and
P files a suit for specific performance of the said
agreement of sale in respect of the undivided half-share,
the court may permit the other co-owner who contends
that D has only one-fourth share, to be impleaded as an
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additional defendant as a proper party, and may examine
the issue whether the plaintiff is entitled to specific
performance of the agreement in respect of half a share
or only one-fourth share; alternatively the court may
refuse to implead the other co-owner and leave open the
question in regard to the extent of share of the defendant
vendor to be decided in an independent proceeding by the
other co-owner, or the plaintiff; alternatively the court
may implead him but subject to the term that the dispute,
if any, between the impleaded co-owner and the original
defendant in regard to the extent of the share will not be
the subject-matter of the suit for specific performance,
and that it will decide in the suit only the issues relating
to specific performance, that is, whether the defendant
executed the agreement/contract and whether such
contract should be specifically enforced.
25.
In other words, the court has the discretion to
either to allow or reject an application of a person
claiming to be a proper party, depending upon the facts
and circumstances and no person has a right to insist that
he should be impleaded as a party, merely because he is
a proper party . ”
13. In view of the principles enunciated by the
Hon'ble Supreme Court in the aforesaid decision, referred
supra , I am of the considered view that, if the proposed
defendant seeks to assert an independent right over the
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suit schedule property, he must work out his remedies, in
accordance with law, and he cannot insist upon being
impleaded in the present suit when the adjudication of his
independent claim would enlarge the scope of the
proceedings and introduce issues beyond the scope of the
reliefs sought by the plaintiffs.
14. It is always open for the proposed defendant to
file an independent suit for partition and establish his
rights over the suit schedule property, in accordance with
law.
15. With the aforesaid observations, I proceed to
pass the following:
ORDER
allowed
i) The writ petition is .
ii) The impugned order dated 14.08.2026
passed by the II Additional Senior Civil
Judge and J.M.F.C., Bidar in
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O.S.No.323/2023 at Annexure-E, is hereby
set aside.
iii) Consequently, the application filed by the
proposed defendant No.8, who is
respondent No.20 herein seeking
impleadment is rejected.
No order as to costs.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
PHM
List No.: 1 Sl No.: 19