- 1 - NC: 2025:KHC:9684 WP No. 3176 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 3176 OF 2025 (GM-CPC) BETWEEN: THE ARMY WELFARE HOUSING ORGANIZATION (REGD) SOUTH HUTMENTS KASHMIR HOUSE, RAJAJIMARG NEW DELHI-110 011 REGISTERED UNDER THE SOCIETIES REGISTRATION ACT REPRESENTED BY ITS PROJECT DIRECTOR LT.COL. DEEPAK RAJ MASANAGATTA (RETD) AGED ABOUT 50 YEARS S/O MR. GURURAJA M R/AT BEHIND VENKATESHWARA ENGINEERING COLLEGE UTTARAHALLI MAIN ROAD BILLAMARANAHALLI JALA HOBLI BANGALORE NORTH TALUK BANGALORE-562157. …PETITIONER (BY SRI. DHYAN CHINNAPPA, SENIOR COUNSEL FOR SRI. AJAY KUMAR N., ADVOCATE) AND: 1. MRS. VIJAYAMMA AGED ABOUT 64 YEARS W/O LATE G V SRINIVASA IYENGAR D/O LATE B KRISHNASWAMY R/A BILLAMARANAHALLI VILLAGE VIDYANAGARA POST, JALA HOBLI Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9684 WP No. 3176 of 2025 BANGALORE NORTH TALUK BANGALORE DISTRICT – 562157. 2. MRS. SUSHEELAMMA AGED ABOUT 62 YEARS D/O LATE B KRISHNASWAMY R/A SADAHALLI DEVANAHALLI TALUK BANGALORE DISTRICT – 562110. AND ALSO R1 AND R2 ARE R/AT BILLAMARANAHALLI JALA HOBLI, VIDYANAGARA POST BANGALORE DISTRICT-562157. 3. MR. B K SUBRAMANYAM AGED ABOUT 63 YEARS S/O LATE B KRISHNASWAMY 4. MR. B K RAMANATH AGED ABOUT 58 YEARS S/O LATE B KRISHNASWAMY 5. MR B K SHESHADRI AGED ABOUT 46 YEARS S/O LATE B KRISHNASWAMY R3 TO R5 ARE R/AT BILLAMARANAHALLI, JALA HOBLI VIDYANAGAR POST BANGALORE-562157. 6. M/S PRASIDDHI PROPERTIES PRIVATE LIMITED HAVING ITS OFFICE AT: NO.401/2, SWASTIK, MANANDI ARCADE F4, FIRST FLOOR, S C ROAD SHESHADRIPURAM, BANGALORE-560 020 REGISTERED UNDER COMPANIES ACT REPRESENTED BY ITS DIRECTOR MR. K. SUBRAMANYA RAJU. - 3 - NC: 2025:KHC:9684 WP No. 3176 of 2025 7. M/S PRASIDDHI PROPERTIES PRIVATE LIMITED HAVING ITS OFFICE AT: NO.401/2, SWASTIK, MANANDI ARCADE F4, FIRST FLOOR, S C ROAD SHESHADRIPURAM, BANGALORE-560 020 REGISTERED UNDER COMPANIES ACT REPRESENTED BY ITS DIRECTOR MR. B SRINIVASA. 8. M/S PRASIDDHI ASPIRATION PLOT OWNERS ASSOCIATION HAVING ITS OFFICE AT VILLA NO.223 PRASIDDHI ASPIRATIONS LAYOUT AT NEW AIRPORT ROAD BILLAMARANAHALLI VILLAGE JALA HOBLI, BANGALORE-562157. REPRESENTED BY ITS MANAGING COMMITTEE MEMBERS AND AUTHORIZED SIGNATORY MR. MATHEW GEORGE REGISTERED UNDER THE KARNATAKA OWNERSHIP ACT. 9. COL. (RETD) ANTONY VARGHEESE AGED ABOUT 72 YEARS R/AT NO. VILLA VA2-11 BILLAMARANAHALLI BETTAHALSUR POST, JALA HOBLI BANGALORE NORTH-562 157. 10. COL. (RETD) ROBIN ABRAHAM GEORGE AGED ABOUT 62 YEARS R/AT NO. VILLA VA2-11 BILLAMARANAHALLI, BETTHALSUR POST JALA HOBLI, BANGALORE NORTH-562 157. 11. MAJOR GENERAL (RETD) R.P RAMACHANDRA NAIDU AGED ABOUT 83 YEARS R/AT VILLA NO.29, VA2-29 YELAHANKA, PART B - 4 - NC: 2025:KHC:9684 WP No. 3176 of 2025 BILLAMARANAHALLI BETTAHALASUR POST JALA HOBLI, BANGALORE-562157. …RESPONDENTS (BY SRI. KAMALESHWARA POOJARY., ADVOCATE FOR R1 & R2: NOTICE TO R3, R8 & R9 ARE SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED: 16.11.2024 (ANNEXURE- A) DISMISSING I.A.NOs. 10 AND 11. IN FDP NO.14/2022 PASSED BY THE HON’BLE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT DEVANAHALLI, BANGALORE RURAL DISTRICT AND II ADDL. SENIOR CIVIL JUDGE AND JMFC AT DEVANAHALLI, BANGALORE RURAL DISTRICT AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD ORAL ORDER In this writ petition, the petitioner called in question the order dated 16.11.2024 passed by the III Additional Senior Civil Judge and JMFC, Devanahalli on IA Nos. 10 and 11 in FDP No.14/2022, whereby the applications filed by the petitioner/respondent No.6 to recall CW1 for further cross-examination and for further cross-examination of CW1, were dismissed. - 5 - NC: 2025:KHC:9684 WP No. 3176 of 2025 2. The plaintiffs filed a suit for partition and separate possession. Defendant Nos. 1 to 3 sold the property in favour of M/s.Nenni Builders and Developers, from them, the petitioner/respondent No.6 purchased the property. The trial court passed a preliminary decree in O.S.No.492/2010 on 20.01.2022. The plaintiffs filed a final decree proceedings in FDP No.14/2022. The trial court appointed the ADLR as the Court Commissioner. The Court Commissioner submitted a report and he has been examined as CW1. The petitioner/respondent No.6 cross- examined the Court Commissioner. During the course of cross-examination, they also marked some documents which is related to development of property, i.e., plan sanctioned by the competent authority, etc. Since the court has refused to mark the documents and examination of CW1 has been closed, hence, the respondent No.6 filed two applications to re-call CW1 for further cross- examination and for further cross-examination of CW1. The trial court dismissed the applications on the ground that the documents which the petitioner/respondent No.6 - 6 - NC: 2025:KHC:9684 WP No. 3176 of 2025 wants to mark, are already produced in the suit and in the further cross-examination of CW1, they want to put unnecessary questions which is not necessary for the disposal of final decree proceedings. Hence, the applications have been dismissed. Therefore, respondent No.6 is before this Court. 3. Sri Dhyan Chinnappa, the learned Senior Counsel appearing for the petitioner has contended that the petitioner is admittedly a Welfare Housing Organization. It has formed layout after obtaining necessary approved plan from the competent authority, put up construction and also formed road. To establish the same, they require to mark the related documents such as plan sanction, relinquishment deed, etc. Since the report submitted by the Commissioner does not disclose regarding the development made by respondent No.6 and also they have disputed the Commissioner’s report, therefore, the documents are very necessary to establish their case. Without considering this aspect of the matter, the trial - 7 - NC: 2025:KHC:9684 WP No. 3176 of 2025 court has erred in dismissing the application. Hence, he sought to allow the writ petition. 4. Per contra, Sri Kamaleshwara Poojary, learned counsel appearing for respondent Nos.1 and 2/plaintiffs contended that in the suit for partition, the petitioner herein is claiming as a purchaser. The purchaser is not a necessary or proper party in the suit for partition or final decree proceedings. In the suit, the written statement filed by the petitioner has been rejected by the trial court, now they cannot be permitted to produce some documents in final decree proceedings and they cannot be permitted to further cross-examine the Court Commissioner. He has also placed reliance on the judgment of this Court in the case of S.K.LAKSHMINARASAPPA, SINCE DECEASED BY HIS LRs. vs. B.RUDRAIAH AND OTHERS reported in ILR 2012 KAR.4129 and judgments of the Apex Court in the case of PRADEEP MEHRA vs. HARIJIVAN J.JETHWA (SINCE DECEASED THE LRs.) & OTHERS reported in 2023 LiveLaw (SC) 936, in the case of - 8 - NC: 2025:KHC:9684 WP No. 3176 of 2025 KATTUKANDI EDATHIL KRISHNAN AND ANOTHER vs. KATTUKANDI EDATHIL VALSAN AND OTHERS reported in (2022) 16 SCC 71, in the case of CHANDER BHAN (D) THROUGH LR SHER SINGH vs. MUKHTIAR SINGH AND OTHERS in Civil Appeal No.2991/2024 disposed of on 03.05.2024 and the judgment of the Punjab and Haryana High Court in the case of SARDAR HARI BACHAN SINGH vs. MAJOR S.HAR BHAJAN SINGH AND ANOTHER reported in AIR 1975 Punjab and Haryana 205, and contended that the purchaser has no right in the partition suit, even if he made any development, he cannot claim any right. He further submits that just to drag the matter, they have filed these applications. The trial court, after considering all these aspects rightly dismissed the applications. Hence, sought to dismiss the writ petition. 5. Heard the learned counsel for the parties. 6. It is not in dispute that respondent Nos.1 and 2 herein filed a suit for partition and separate possession. It - 9 - NC: 2025:KHC:9684 WP No. 3176 of 2025 is also not in dispute that respondent No.6 purchased part of the suit schedule property by a registered sale deed and he was also a party in the suit in O.S.No.492/2010. 7. The specific case of the petitioner/respondent No.6 is that it is the Army Welfare Housing Organization, for the benefit of their members, has formed residential layout and put up construction after obtaining necessary plan from the competent authority. Even though they have no right in the suit for partition, since they can claim the right through their vendors in the final decree proceedings, the trial court appointed a Court Commissioner, the Court Commissioner submitted the report and the same is marked as CW1. 8. The further case of the petitioner/respondent No.6 is that in the Commissioner’s report, they have not shown the development made by the petitioner. Therefore, they require to mark the documents related to the development, i.e., plan sanctioned by the competent authority, relinquishment deed, conversion order. Since - 10 - NC: 2025:KHC:9684 WP No. 3176 of 2025 they want to establish that they have formed the layout in the property which they have purchased, they wants to mark the documents to establish their case. Their main contention is that since the Commissioner’s report has not disclosed the development, the Commissioner has not properly prepared the report, to establish their case, they want to mark those documents and they need to further cross examine the Commissioner. Allowing the petitioner/ respondent No.6 to further cross-examine the Court Commissioner will not be prejudicial to the rights of the respondent Nos.1 and 2/plaintiffs. Even though the petitioner/respondent No.6 has no right in the partition suit, as held by this Court as well as the Apex Court, they can claim equity on the basis of the right of their vendor. They have to establish their right and to show that they have developed the suit schedule property, in the final decree proceedings. Under these circumstances, I am of the opinion that the petitioner/respondent No.6 has to be given one more opportunity to further cross-examine the Court Commissioner, but subject to certain conditions. - 11 - NC: 2025:KHC:9684 WP No. 3176 of 2025 9. In view of the above, the following order is passed: (i) The writ petition is allowed. (ii) The order dated 16.11.2024 passed on IA Nos.10 and 11 in FDP No.14/2022 by the III Additional Senior Civil Judge and JMFC, Devanahalli is set aside. (iii) IA Nos. 10 and 11 filed by the petitioner/respondent No.6 under Order XVIII Rule 17 r/w. Section 151 of CPC are allowed. (iv) The parties are directed to appear before the trial court on 25.03.2025, without any further notice. (v) The trial court is directed to issue notice to the Commissioner to be present on 25.03.2025. - 12 - NC: 2025:KHC:9684 WP No. 3176 of 2025 (vi) On 25.03.2025, petitioner/respondent No.6 has to further cross-examine the Court Commissioner and he has to complete his cross-examination on that day, without taking further adjournment. (vii) The petitioner/respondent No.6 shall not seek for examination of any other witness except the Court Commissioner. (viii) Registry is directed to communicate this order to the trial court, forthwith. Sd/- (H.T. NARENDRA PRASAD) JUDGE CM/ LIST NO.: 1 SL NO.: 62