- 1 - NC: 2025:KHC:127 WP No. 57755 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 57755 OF 2018 (GM-CPC) BETWEEN: SRI M.P.MEDAPPA S/O LATE POOVAIAH AGED ABOUT 61 YEARS R/AT KAMADENU ESTATE, MADAPURA, SOMWARPET TALUK, KODAGU DISTRICT-571 201 …PETITIONER (BY SRI. MANMOHAN P.N., ADVOCATE) AND: 1. SHARFUDDIN M.M. S/O M.K.MOHIDDIN KITTY AGED ABOUT 42 YEARS R/AT KALLUBANE POST VIRAJPAPETE TALUK, KODAGU DISTRICT-571 201 2. SMT B.S.VARADHA W/O LATE B.S.SURESH DOOR NO.3-87, SRINIVASA NILAYA, (SUNDARI SRINIVASA NILAYA) DASAVALA, MADAKERI TOWN AND POST , MADIKERI TALUK, KODAGU-571 201 …RESPONDENTS (BY SRI.SHIVACHARAN, ADVOCATE FOR R2 R1- SERVED) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED: 08.1.2018 PASSED ON I.A.NO.3 PASSED IN O.S.NO.77/2016 PASSED BY THE COURT OF THE SR. CIVIL JUDGE AND CJM, KODAGU- MADIKERI VIDE ANNEXURE-E AND CONSEQUENTLY ALLOW I.A.NO.III. Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:127 WP No. 57755 of 2018 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order passed in I.A.No.III in O.S.No.77/2016 dated 08.01.2018 by the Senior Civil Judge and CJM, Kodagu - Madikeri, the petitioner/proposed party is before this Court. 2. The first respondent has filed the suit seeking specific performance of an agreement of sale executed by the second respondent herein. The second respondent's vendor and the petitioner herein have jointly purchased the property of an extent of 18 cents by way of a registered sale deed dated 24.08.2007. It is the case of the petitioner that there was no partition between the petitioner and the second respondent's vendor, but the second respondent had executed a sale deed in favour of second respondent dated 31.03.2013. Then he had filed the suit in O.S.No.136/2013 seeking declaration that the said sale deed is not binding on him. That suit came to be partly decreed wherein the trial Court has observed that the sale deed dated 31.03.2013 is binding on the petitioner herein - 3 - NC: 2025:KHC:127 WP No. 57755 of 2018 but the schedule mentioned in the sale deed is not binding on him. Aggrieved thereby, he has preferred RFA No.1145/2017 before this Court and the same is pending consideration. In the meantime, the second respondent herein had executed an agreement of sale in respect of first respondent and the first respondent has filed the suit for specific performance against the second respondent. In that, the petitioner herein had filed an application to implead himself as the second defendant. That application came to be dismissed by the trial Court. 3. While dismissing the application the trial Court had considered the judgment of the Hon'ble Apex Court in the case of Kasturi Vs. Iyyamperumal and Others1, wherein the Hon'ble Apex Court had held that in a suit for specific performance of contract for sale of a property instituted by a purchaser against the vendor, a stranger or a third party to the contract, claiming to have an independent title and possession over the contracted property is not entitled to be added as party/defendant in the said suit. Considering the said judgment, the trial Court had observed that the petitioner has 1 AIR 2005 SC 2813 - 4 - NC: 2025:KHC:127 WP No. 57755 of 2018 already obtained the relief from the Court and he can file FDP proceedings to get his share by metes and bounds and he cannot attempt to creep into the suit filed by a purchaser seeking specific performance of the contract, the rights, if any of the proposed defendant cannot be adjudicated in the suit. Accordingly, the trial Court had dismissed the application filed by the petitioner. 4. Learned counsel appearing for the petitioner/ proposed party submits that the trial Court had failed to consider the fact that in the light of the judgment and decree whereby the Court had partly decreed the suit and also observed that the schedule mentioned in the sale deed is not binding on the petitioner and in the facts and circumstances, the petitioner is a proper and necessary party to the suit. It is submitted that the reliance placed by the trial Court in Kasturi's case do not apply to the facts of the case. Learned counsel has relied on the judgment of the Hon'ble Apex Court in the case of Moreshar Yadaorao Mahajan Vs. Vyankatesh Sitaram Bhedi (D) thr. LRs. and Others2 and he submits 2 2022 SCC OnLine SC 1307 - 5 - NC: 2025:KHC:127 WP No. 57755 of 2018 that the Court had observed that in the judgment of Kasturi's case referred supra, the question therein was as to whether a person who claims independent title and possession adversely to the title of a vendor could be a necessary party or not and in that context, the judgment is passed by the Hon'ble Apex Court. The Court held that for determining the question whether a particular person is a proper and necessary party, two tests are to be satisfied. The first one is that there must be a right to some relief against such party in respect of the controversies involved in the proceedings, the second one is that no effective decree can be passed in the absence of such party. Relying on this judgment, learned counsel appearing for the petitioner submits that the trial Court had failed to consider these aspects and dismissed the application. 5. It is submitted by the learned counsel for the petitioner that though notice is served on respondent No.1, no vakalath is filed on his behalf. The respondent No.2 who is the first defendant in the suit has appeared through advocate before this Court. In fact, he has no locus in respect of this application that is between the plaintiff and the petitioner herein. - 6 - NC: 2025:KHC:127 WP No. 57755 of 2018 6. Learned counsel appearing for respondent No.2 who is the defendant in the suit submits that the trial Court had rightly considered the judgment of Hon'ble Apex Court in Kasturi's case referred supra and rightly dismissed the application. He submits that the petitioner could have initiated the final decree proceedings and his remedy is not before the Court. It is submitted that in a suit filed for specific performance, i.e., between the parties to the agreement, a third party's case cannot be considered. 7. Having heard the learned counsels on either side, perused the entire material on record. The undisputed facts in this case are that the petitioner and the second respondent's vendor has purchased the property of an extent of 18 cents. Now, the vendor of respondent No.2 had sold an extent of 8 cents in favour of the defendant by mentioning certain metes and bounds which was questioned by the petitioner. According to him, there is no partition between them and hence the vendor of the second respondent has no right to sell. The suit came to be partly decreed wherein the trial Court observed that the schedule is not binding on him but the sale deed is binding as there is no dispute with regard to the right of the second - 7 - NC: 2025:KHC:127 WP No. 57755 of 2018 respondent's vendor. Against the same, RFA No.1145/2017 was filed and the same is pending consideration. Learned counsel had relied on the judgment of Hon'ble Apex Court in case of Moreshar Yadaorao Mahajan referred supra, wherein the Hon'ble Apex Court had considered the judgment in Kasturi's case and what is the issue involved in the said case and what is the finding of the Apex Court. Later, it is observed that to decide a particular application whether a person is a proper and necessary party to the suit to a particular proceedings, the Court has to apply the two tests i.e., there must be a right to some relief against such party in respect to the controversies involved in the proceedings and the other is no effective decree can be passed in the absence of such a party. In this case, in respect of the very same property, the suit is partly decreed and an appeal is pending before this Court. Now, if the suit for specific performance is decreed and all the issues with regard to the property are not brought to the notice of the Court, the Court will not be in a position to adjudicate the dispute. Considering all these facts and circumstances of the case, this Court is of the view that the petitioner is a necessary party to the suit. Accordingly, this Court is passing the following order: - 8 - NC: 2025:KHC:127 WP No. 57755 of 2018 ORDER i. The order passed in I.A.No.III in O.S.No.77/2016 dated 08.01.2018 by the Senior Civil Judge and CJM, Kodagu - Madikeri, is set aside. Consequently, I.A.No.III is allowed. ii. Accordingly, the writ petition is allowed. iii. All I.As. in this writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 25