WP/27674/2023 of SRI ALIRA A ERMU HAJI Vs SRI P MOIDU HAJI on 2 September 2026

ORAL ORDER

This writ petition is filed challenging Order dated 27.10.2023 passed in IA No.13 in OS No.95/2019 by the Senior Civil Judge, Virajpet.

2. Sri R.S.Ravi, learned Senior Counsel appearing for the petitioner submits that respondent No.1 had filed the aforesaid suit seeking the relief of declaration that the plaintiff is entitled to one-half share in the suit property as the petitioner herein is an Agreement of Sale Holder, which was executed by defendant No.1 in the suit. It is submitted that defendant No.1, being the absolute owner having acquired the property under the registered sale

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deed, had entered into an Agreement of Sale in favour of the petitioner. Hence, the petitioner is a proper party to the suit filed by respondent No.1. It is submitted that, out of Rs.70,00,000/- total sale consideration, Rs.20,00,000/- has been paid to defendant No.1 and that neither defendant No.1 nor his legal heirs had filed a written statement in the suit. Hence there is a likelihood of collusion between the parties to deprive the right of the Agreement Holder, the petitioner herein. Hence, the petitioner may be permitted to come on record in the suit as a proper party/necessary party. In support of his contention, he placed reliance on the decision of the Hon'ble Supreme Court in the case of Razia Begum vs. Sahebzadi Anwar Begum and Others1.

3. Per contra, Sri Sachin B.S., learned counsel for respondent No.1-plaintiff, supports the impugned order of the trial Court and submits that, in similar circumstances, 1 AIR 1958 SC 886

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a Co-ordinate Bench of this Court in the case of Master Thejas and Another vs. C.R.Babu and Others2, at paragraphs No.6 and 7 has held that, in a suit for declaration, the Agreement Holder is yet to establish his independent right over the property and until the same is established, he cannot be impleaded.

4. I have heard the arguments of the learned Senior counsel for the petitioner, learned counsel appearing for respondent No.1 and perused the material available account.

5. Respondent No.1 herein had filed a suit in OS No.95/2019 seeking for a judgment and decree of declaration that, the plaintiff is entitled for one-half share in the suit schedule property and to allot a separate share and for the relief of injunction. In the said suit, the petitioner filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure,1908 (hereinafter referred to 2 WP No.37203/2015, DD.02.01.2024

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as "CPC") seeking to implead him. The said application was opposed. The trial Court under the impugned order rejected the said application.

6. It is to be noticed that the petitioner is contending that, he is an Agreement Holder with the deceased defendant No.1 in the suit and that the deceased defendant No.1 had not filed any written statement nor his legal heirs have filed written statement defending the suit and that they may collude with each other and defeat the rights of the petitioner. It is to be noticed that the petitioner is making assertion of his right based on the Agreement of Sale dated 18.11.2019, alleged to have been entered into between the petitioner and defendant No.1 in the suit and that, the material on record does not indicate that the petitioner had made any attempt to enforce his right under the Agreement dated 18.11.2019 till this day. The suit being for declaration between the plaintiff and defendants, the petitioner is a stranger to the aforesaid proceedings and his claims are yet to be

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adjudicated in an appropriate forum. Merely because of the fact that the petitioner is an Agreement Holder, it does not confer any right upon him to come on record in a suit filed by respondent No.1 for the relief of declaration. In my considered view, if the petitioner has any right under the said Agreement, he has to establish the same in accordance with law. Until such a right is established, the petitioner cannot be called as either a "necessary" or "proper” party to the suit. The trial Court, taking note of the said aspect, has rightly rejected the application. The decision relied by the petitioner has no application to the facts of the case. I do not find any good ground to interfere with the impugned order. Writ petition is devoid of merits and the same is rejected. Pending applications are closed. Sd/- (VIJAYKUMAR A. PATIL) JUDGE rs/List No.: 1 Sl No.: 13