Dismissed

Smt. Neelavva W/O. Sangappa Kanteppannavar, v. Smt. Parvatevva W/O. Gurusiddappa Muralli

Karnataka HC7 Jul 2023WP/104074/2023

Case brief

AI extract

What is this about?

Petitioner challenged the Trial Court's order impleading a third respondent in Foreign Property Demarcation proceedings under CPC Order 1 Rule 10(2). Court dismissed writ petition, clarifying that impleading for record purposes does not prejudge adoption or merit while ensuring FDP concludes expeditiously.

What did the court decide?

Petition dismissed; Trial Court directed to dispose FDP expeditiously without prejudice to parties.

Smt. Neelavva W/O. Sangappa Kanteppannavar, Vs Smt. Parvatevva… — Partition | Karnataka HC (2023)

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NC: 2023:KHC-D:6866 WP No. 104074 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7^TH DAY OF JULY, 2023 BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO. 104074 OF 2023 (GM-CPC)

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BETWEEN:

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SMT. NEELAVVA W/O. SANGAPPA KANTEPPANNAVAR, AGE: 73 YEARS, OCC: HOUSEHOLD, R/O: SANGEDEVARAKOPPA, TAL: KALAGHATAGI, DIST: DHARWAD.

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…PETITIONER

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(BY SRI SAGAR HEGDE, ADVOCATE FOR SRI S.R. HEGDE, ADVOCATE)

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AND:

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SMT. PARVATEVVA W/O. GURUSIDDAPPA MURALLI, AGED ABOUT: 54 YEARS, OCC: HOUSEHOLD WORK, R/O: MALAKANAKOPPA,

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VIJAYALAKSHMI M KANKUPPI Digitally signed by VIJAYALAKSHMI M KANKUPPI Location: High Court of Karnataka, Dharwad

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TQ: KALAGHATAGI, DIST: DHARWAD.

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SRI. SHANKRAPPA S/O. SIDDAPPA MADIVALAR, AGED ABOUT: 77 YEARS, OCC: AGRICULTURE, R/O: HARUGERI,

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TQ: KALAGHATAGI, DIST: DHARWAD.

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SRI MANJUNATH A/F GURUSIDDAPPA MURALLI, AGED ABOUT: 25 YEARS, OCC: AGRICULTURE, R/O. MALAKANAKOPP,

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TQ: KALAGHATAGI, DIST: DHARWAD.

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…RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF INDIA PRAYING TO A WRIT OF CERTIORARI MAY

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2 - NC: 2023:KHC-D:6866 WP No. 104074 of 2023

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PLEASE BE ISSUED QUASHING THE ORDER PASSED BY THE HON'BLE CIVIL JUDGE AND JMFC, KALAGHATAGI. ON I.A.2 FILED UNDER ORDER 1 RULE 10(2) R/W SECTION 151 OF C.P.C IN F.D.P.NO.4/2021 ON THE FILE OF THE CIVIL JUDGE AND JMFC COURT, KALAGHATAGI DATED 07-06-2023, VIDE ANNEXURE-F.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed by the petitioner questioning the

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order of Civil Judge and JMFC, Kalaghatagi ('the Trial Court') allowing the application I.A.No.II under Order 1 Rule 10(2) read with Section 151 of CPC in FDP No.4/2021.

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The petitioner filed a suit for partition against the respondents who are none other than the wife of her brother and another one is the purchaser. The said suit filed by the petitioner in O.S.No.44/2013 came to be decreed by granting partition of half share in R.S.No.132/1 measuring 03 acres, 38 guntas of Bagadgeri village of Kalaghatagi Taluka and it was also held that the petitioner/plaintiff is not entitled to get any share in R.S.No.34/5C measuring 13 guntas in Harogeri village and

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3 - NC: 2023:KHC-D:6866 WP No. 104074 of 2023

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VPC No.77/2 of Jinnur village. Aggrieved by the Judgment and Decree dated 03.08.2021 passed in O.S.No.44/2023 by the Trial Court, the 1^st respondent/defendant No.1 preferred R.A.No.12/2021, which on contest came to be dismissed on 02.11.2022. Thereafter, the petitioner/ plaintiff filed F.D.P. proceedings in FDP No.4/2021 for demarcation and allotment of shares in accordance to the preliminary decree. This being the state of affairs, in the F.D.P. proceedings, the 3^rd respondent herein filed an application to implead himself under Order 1 Rule 10(2) and read with Section 151 of CPC. In the affidavit filed annexed to the said application, it is contended by the applicant that he is the adopted son of respondent No.1 and that the suit property is a self acquired property of his adoptive father and that he came to know about this suit property and the decree only after the Surveyor has issued notice on his adoptive mother. This application came to be seriously opposed by the petitioner and by the order dated 07.06.2023 the application came to be allowed. The 3^rd respondent in the impleading application was permitted to

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4 - NC: 2023:KHC-D:6866 WP No. 104074 of 2023

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be impleaded as a party. Aggrieved by this order, the petitioner is before this Court.

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It is the vehement contention of learned counsel Sri Sagar Hegde appearing for petitioner that the order passed by the Trial Court is illegal, arbitrary and perverse and the same deserves to be set aside for the reason that the applicant is not a proper and necessary party for adjudication of the F.D.P. proceedings. The presence of applicant would not assist the Court in demarcation of the properties to the 1^st respondent as when the suit came to be filed, husband of respondent No.1 was already dead. As on the date of filing of suit and decree, the applicant herein was not allegedly adopted. Hence, there was no requirement of applicant to be made a party either in the suit or in F.D.P. proceedings.

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Now the applicant in order to delay and protract the proceedings has came up with frivolous plea by taking contention that the property of the husband of respondent No.1 was self acquired property which plea was already taken by the 1^st respondent and the same was rejected.

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5 - NC: 2023:KHC-D:6866 WP No. 104074 of 2023

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Therefore, learned counsel for the petitioner contends that this is a ruse to drag on the proceedings. Accordingly, he

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seeks to allow the petition and set aside the order impleading applicant in the F.D.P. proceedings.

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I have heard the learned counsel for the

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petitioner. I do not find the need for issuance of notice to respondents, as this Court is inclined to grant any relief against the respondents nor adverse orders are passed against them.

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The application was allowed only to bring on

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record the impleading applicant as respondent No.3. Any observations or opinion expressed by the Civil Judge is only for the purpose of impleading applicant and not on the merits or demerits as what is claimed by the applicant in his application. If the applicant comes on record nothing adverse would happen to the petitioner or the 1^st respondent as the F.D.P. proceedings would decide about the demarcation and allotment of shares, which however cannot traverse beyond the preliminary decree. In the present case, the first appeal having been filed by the 1^st

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6 - NC: 2023:KHC-D:6866 WP No. 104074 of 2023

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respondent and having it attained finality, nothing should bother the petitioner/plaintiff.

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The Trial Court shall consider all objections and contentions of the petitioner while deciding the allotment of shares to the respondents or to the petitioner including the plea already agitated and negatived. This Court is not rendering any opinion with regard to the merit and demerits of the case and adoption rights of the applicant with regard to the preliminary decree already attained finality. Accordingly, I pass the following:

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ORDER

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(i) Petition is dismissed.

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(ii) It is made clear that this Court has not expressed any opinion with regard to the rights of applicant, merits and demerits of the case.

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(iii) The Civil Judge dealing with the F.D.P. proceedings shall dispose of the proceedings expeditiously.

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Sd/JUDGE

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CKK List No.: 1 Sl No.: 22

Smt. Neelavva W/O. Sangappa Kanteppannavar, v. Smt. Parvatevva W/O. Gurusiddappa Muralli

Case brief

What is this about?

What did the court decide?

Smt. Neelavva W/O. Sangappa Kanteppannavar, v. Smt. Parvatevva W/O. Gurusiddappa Muralli

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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