M T KEMPEGOWDA Vs. G K RAMESH KHUMAAR

JUDGEMENT

(1.) HEARD the learned counsel for the parties.

(2.) THE facts are as follows : THE first respondent herein has filed a suit for declaration, possession and mandatory injunction against respondents 2 to 6 herein. It is claimed that he is the owner of the suit schedule property which has been illegally occupied by respondent No.6, who has put up certain construction therein and hence the suit. THE petitioner was not a party to the suit. On learning of the pendency of the same, he had filed an application to implead himself as a party. It is the petitioner's case that one Nanjappa was the owner of the property. He was the father of respondents 2 to 4 herein and the husband of respondent No.5. It is claimed that the said Nanjappa had parted with the possession of the suit property for a consideration but, as there was a statutory bar under the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, (hereinafter referred to as 'the Act' for brevity), to execute a sale deed - secondary documents, such as a power of attorney to enable the transferee to hold the property and an affidavit to fortify the transfer, were said to have been executed as on 5.11.1988 in favour of one Krishnappa, Who in turn, similarly transferred the same property in favour of one Hemalatha on 4.1.1989. THE aforesaid Act was repealed with effect from 29.11.2000. THE said Hemalatha had thereafter executed a registered sale deed in favour of one Madhukar. This was said to have been ratified by the aforesaid Krishnappa. Madhukar is said to have obtained a sanction of plan from the competent authority and had constructed a house and thereafter had sold the suit property to the petitioner under a registered sale deed dated 22.11.2006. THE petitioner claims that he was in possession thereof. In the year 2008, according to the petitioner, respondent No. 1 is said to have informed that his suit in respect of the property was to be decreed soon and that he should make preparations to vacate the property - this had prompted the petitioner to approach the trial Court with an application to implead himself. That application was summarily rejected. THE petitioner had then approached this Court challenging that order. This Court having set aside the order had directed the trial Court to rehear the application. THE trial Court having again dismissed the application holding that the petitioner's sale deed was in violation of Section 52 of the Transfer of Property Act, 1882, (hereinafter referred to as 'the TP Act' for brevity) and hence would have no right to participate in the proceedings, the present petition is filed.

(3.) IN the above facts and circumstances, the question to be considered is whether the petitioner is entitled to contest the suit as a defendant, in the admitted circumstance that the sixth respondent who had sold the property to the petitioner had conveyed the same, without the leave of the Court, during the pendency of the suit. The petitioner's endeavour to trace the transfer of property to the year 1988 , when the father of respondents 2 to 4 is said to have parted with his possession is not so material. The challenge in the suit was to the possession of the property by respondent No.6, under whom the petitioner claims. The said respondent had filed his written Statement in the suit as on 4.3.2004. The sale deed in favour of the petitioner was admittedly executed on 13.3.2006. The transfer therefore was in total defiance of the pending proceedings. This would definitely militate against the spirit and object of Section 52 of the TP Act. The mala fides sought to be alleged against respondents 2 to 4, as narrated above does not blunt the infraction. Section 52 of the TP Act is extracted for ready reference. The same reads as follows :