BY SRI v. VISWANATH SHETTY
Case Details
- 1 - NC: 2025:KHC:11225 WP No. 30206 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 30206 OF 2019 (GM-CPC) BETWEEN: 1. SMT PUTTAMMA W/O H. VIJAYKUMAR AGED ABOUT 55 YEARS 2. SRI. HANUMANTHE GOWDA S/O LATE H. VIJAYKUMAR AGED ABOUT 35 YEARS 3. SRI. HARSHAVARDHAN GOWDA S/O LATE H. VIJAYKUMAR AGED ABOUT 33 YEARS 4. SMT. SOWMYALAKSHMI D/O LATE H. VIJAYKUMAR AGED ABOUT 31 YEARS Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA 5. SMT. YAMUNALAKSHMI D/O LATE H. VIJAYKUMAR AGED ABOUT 28 YEARS 6. R SWARUP S/O LATE B.N.LAKSHMINARAYAN AGED ABOUT 46 YEARS 7. R. PRIYADARSHAN S/O LATE B.N.LAKSHMINARAYAN AGED ABOUT 42 YEARS PETITIONER NOS. 1 AND 7 ARE RESIDING AT NO.63/96, LAKSHMISADANA, - 2 - NC: 2025:KHC:11225 WP No. 30206 of 2019 …PETITIONERS SURVEYOR STREET, BASAVANAGUDI, BANGALORE-560 004.
Legal Reasoning
Division Bench of this Court in the aforesaid RFA No.1085/2007 - 9 - NC: 2025:KHC:11225 WP No. 30206 of 2019 and he would not insist or seek for any relief against the petitioners herein pursuant to the settlement that was arrived at between the plaintiff and the Respondent No.2. He submits with the said observation if the petition disposed of, purpose would be served. 5. Submission is taken and record. 6. Accordingly, the following;
Arguments
(BY SRI. A. SAMPATH.,ADVOCATE) AND: 1. SMT SATHYAVATHI KESHAVA AGED ABOUT 61 YEARS W/O DYAMANNA KESHAVA, R/AT NO.11/9, MORRISON CIRCUS, EDINDURGH, UNITED KINGDOM EH 38 DX. 2. MR. D.U SUBRAMANYA S/O D.C. VIJAYANDRAN, R/AT NO.388, 42ND CROSS, 9TH MAIN, 5TH BLOCK, JAYANAGAR, BANGALORE-560 021. (BY SRI. V. VISWANATH SHETTY.,ADVOCATE FOR R2; V/O DATED 29.09.2021 NOTICE TO R1 DISPENSED WITH) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED.30.03.2019 PASSED BY THE XXII ADDITIONAL CITY CIVIL SESSIONS JUDGE BENGALURU IN FDP NO.88/2014 ALLOWING IA NO.1/2016 FILED BY THE R.2 WHICH IS ENCLOSED AS ANNEXURE-L AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL - 3 - NC: 2025:KHC:11225 WP No. 30206 of 2019 ORAL ORDER Petitioners who are the respondents 1 to 6(b) in a final decree proceedings in FDP No.88 of 2014 pending consideration on the file of XXII Additional City Civil and Sessions Judge Bengaluru, are before this Court being aggrieved by the order dated 30.03.2019 passed on an application filed by the respondent No.2 herein under Order 1 Rule 10(2) read with Section 151 CPC (I.A.No.1/2016), by which, respondent No.2 had sought to transpose himself as plaintiff No.2 in the said final decree proceedings. 2. Brief facts of the case are that; (a) suit in O.S.No.7858/1998 was filed by respondent No.1 herein namely, Smt. Sathyavathi Keshava seeking partition and separate possession of two items of the suit property namely, (i) property bearing No.63/96, measuring 30 feet X 111 feet situated at Surveyor street, Basavanagudi, Bangalore and (ii) property bearing No.398-10, 42 'A' Cross, 6th Block, Jayanagar, Bengaluru measuring East to West 50 feet, North to South 75 feet. - 4 - NC: 2025:KHC:11225 WP No. 30206 of 2019 The said suit came to be decreed by judgment decree dated 19.01.2007 declaring plaintiff/respondent No.1 herein to be having 1/3rd undivided share right title interest in the aforesaid two items of suit schedule properties. It appears petitioners herein had conveyed the entire item No. 2 of the suit property in favour of the respondent No.2 herein in terms of deed of sale dated 22.08.1994. As such, the respondent No.2 got impleaded himself in the said suit. The Trial Court considering the contention urged by the respondent No.2 herein regarding he being a bonafide purchaser, had at paragraphs 14 and 15 of aforesaid judgement passed in O.S.No.7858/1998 held that the respondent No.2 herein would be entitled for allotment of entire extent of item No.2 of the property, inasmuch as he was the bonafide purchaser of the property and had further directed that the equities shall be worked out in a manner such that the said property be allotted in favour of the respondent No.2. (b) That an appeal in RFA No.1085/2007 came to be filed by the plaintiff against the aforesaid observation. - 5 - NC: 2025:KHC:11225 WP No. 30206 of 2019 Division Bench of this Court partly allowed said appeal reversing the observation and the finding of the Trial Court with regard to item No.2 of the property to be allotted in favour of respondent No.2. The Division Bench of the Court however, clarified that the respondent No.2 being the purchaser of item No.2 of the property was entitled to seek equity inasmuch as he had purchased 2/3rd of the property from the petitioners herein. Apparently, matter was carried in appeal before the Apex Court questioning the judgement and decree passed by the Division Bench of this Court in the aforesaid RFA No.1085/2007 in SLP(C) No. 26551/2014. When said appeal was pending consideration a private settlement came to be arrived at between Smt. Sathyavathi Keshava, plaintiff/respondent No.1 herein and the Sri.D.U. Subramanya the defendant No.7/respondent No.2 herein. In terms of the said settlement, plaintiff/respondent No.1 herein had agreed to give up her claim in respect of item No.2 of the schedule property in lieu of respondent No.2/defendant No.7 paying a sum of Rs.1,30,00,000/- to her towards her 1/3rd share in the - 6 - NC: 2025:KHC:11225 WP No. 30206 of 2019 property. It appears in the said agreement liberty was reserved to respondent No.2 herein to seek remedy against the petitioners herein in accordance with law for he settling the claim of the plaintiff in respect of the item No.2 of the suit property on their behalf as well. (c) Subsequently based on the aforesaid agreement the respondent No.1/ plaintiff filed a memo seeking to dismiss the final decree proceedings as regards the item No.2 and confining her claim in the final decree proceedings only in respect of the item No.1 of the suit property. It is at this juncture the respondent No.2 herein filed the above application under Order 1 Rule 10 (2) of CPC seeking to transpose himself as plaintiff No.2 primarily basing his claim in terms of the aforesaid settlement agreement which was arrived at between the plaintiff/respondent No.1 and defendant No.7 the respondent No.2 herein. (d) In the affidavit accompanying the application it is specifically contended that petitioners herein while conveying the item No.2 of the suit property in favour of - 7 - NC: 2025:KHC:11225 WP No. 30206 of 2019 the Respondent No.2, had mislead/ suppressed the facts with regard to right of the plaintiff and that since he had paid some of Rs.1,30,00,000/- to the plaintiff to safeguard his interest, he would be entitled to seek claim for his sum of Rs.1,30,00,000/- against the petitioners. The Trial Court has allowed the said application accepting the averments made in the affidavit in the impugned order. Being aggrieved by the same, the petitioners are before this Court. 3. Sri A. Sampath, learned counsel appearing for the petitioners reiterating the grounds urged in the memorandum of petition and taking this Court through the records submit; (a) that merely because a right to seek equity was reserved by the Division Bench of this Court in the aforesaid RFA No.1085/2007, the respondent No.2 cannot convert the same into a separate cause of action based on a private settlement which he has entered into between the plaintiff and himself to which the petitioners herein are not parties. - 8 - NC: 2025:KHC:11225 WP No. 30206 of 2019 (b) He submits the contents of the affidavit accompanying the application would indicate that the respondent No.2 by transposing himself as plaintiff No.2 is seeking to enforce his rights in terms of the settlement agreement to recover a sum of 1,30,00,000/- against the petitioners herein which is not permissible. (c) He further submits if at all the respondent No. 2 is entitled to, he can seek for equity as directed by the Division Bench of this Court in the aforesaid RFA No.1085/2007 without basing his claim on the aforesaid settlement agreement. Hence he submits that the order passed by the Trial Court is required to be set aside relegating the parties to seek their claim strictly in accordance with the directions issued by the Division Bench of this Court. 4. In response, Sri. V.Vishwanath Shetty, learned counsel for the respondent No.2 fairly submits that the respondent No.2 would restrict his claim in the final decree proceedings only in terms of the directions issued by the
Decision
ORDER (1) The impugned order passed by the Trial Court is modified clarifying to the effect that the equity if any which the respondent No.2 is entitled to shall be strictly in accordance with the directions issued by the Division Bench of this Court in RFA No.1085/2007 without taking into consideration the terms of the agreement that has been entered into between the plaintiff/respondent No.1 and respondent No.2/defendant No.7. - 10 - NC: 2025:KHC:11225 WP No. 30206 of 2019 (2) Needless to observe if at all the respondent No.2 /defendant No.7 has any claim against the petitioners the same has to be sought by a separate proceeding and not in the present final decree proceedings in FDP No.88/2014. With above observation the petition is disposed of. SD/- (M.G.S. KAMAL) JUDGE RU List No.: 1 Sl No.: 14