Dismissed

Smt Indira Vilas Nashi v. Smt Susheela Vilas Nashi

Karnataka HC1 Dec 2023WP/106969/2023

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged the trial court's order allowing the plaintiffs to abandon their claim against defendant No. 10 in a suit for partition. The court held that plaintiffs, as dominus litis, are entitled to abandon their claim outside court proceedings if it does not prejudice defendants' rights.

What did the court decide?

Writ petition dismissed.

Smt Indira Vilas Nashi Vs Smt Susheela Vilas Nashi — Partition | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC-D:14082 WP No. 106969 of 2023

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶4

DATED THIS THE 1^ST DAY OF DECEMBER, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL

¶7

WRIT PETITION NO. 106969 OF 2023 (GM-CPC)

¶8

BETWEEN:

¶9

SMT INDIRA VILAS NASHI AGE. 55 YEARS, OCC. HOUSEHOLD, R/O LAXMINAGAR, MUDALAGI,

¶10

DIST. BELAGAVI-591312

¶11

PREM VILAS NASHI AGE: 29 YEARS, OCC:NIL R/O: LAXMINAGAR, MUDALAGI, TQ: MUDALAGI DIST:BELAGAVI-591312

¶12

…PETITIONER

¶13

(BY SRI. MADANGOUDA N PATIL, ADVOCATE)

¶14

AND:

¶15

SHIVAKUMAR HIREMATH Digitally signed by SHIVAKUMAR HIREMATH Date: 2023.12.11 15:46:24 +0530

¶16

SMT SUSHEELA VILAS NASHI AGE. 50 YEARS, OCC. HOUSEHOLD, R/O MAHALINGESHWAR NAGAR, GOKAK, TQ. GOKAK, DIST. BELAGAVI-591307

¶17

2 NAGARAJ VILAS NASHI AGE: 35 YEARS, OCC:PVT. JOB R/O: MAHALINGESHWAR NAGAR, GOKAK, TQ: GOKAK, DIST: BELAGVI-591307

¶18

3 DEEPA D/O: VILAS NASHI AGE: 33 YEARS, OCC: NIL R/O: MAJHALINGESHWAR NAGAR,

¶19

¶20

NC: 2023:KHC-D:14082 WP No. 106969 of 2023

¶21

GOKAK, TQ: GOKAK, DIST: BELAGAVI-591307

¶22

4 VISHAL VILAS NASHI, AGE: 30 YEARS, OCC: PVT. JOB R/O: MAHALINGESHWAR NAGAR, GOKAK, TQ: GOKAK DIST: BELAGAVI-591307

¶23

5 NANDA D/O: VILAS NASHI AGE: 28 YEARS, OCC:NIL R/O MAHALINGESHAR NAGAR, GOKAK, TQ: GOKAK, DIST:BELAGAVI-591307

¶24

6 VILAS ADIVEPPA NASHI AGE: 62 YEARS, OCC: BUSINESS R/O LAXMINAGAR, MUDALAGI, TQ: MUDALAGI DIST: BELAGAVI-591312

¶25

7 OM VILAS NASHI AGE: 27 YEARS, OCC: NIL R/O LAXMINAGAR, MUDALAGI, TQ: MUDALAGI, DIST: BELAGAVI-591312

¶26

8 POOJA D/O VILAS NASHI, AGE: 25 YEARS, OCC: HOUSEHOLD R/O LAXMINAGAR, MUDALAGI, TQ: MUDALAGI, DIST: BELAGAVI-591312

¶27

9 LAKKAPPA SHANKAREPPA NESUR AGE: 45 YEARS, OCC: AGRICULTURE R/O: MUGALIHAL, TQ: SAUNDATTI, DIST: BELAGAVI-591129

¶28

10 YALLAPPA GURULINGAPPA MUGALKOD AGE: 49 YEARS, OCC: AGRICULTURE,

¶29

¶30

NC: 2023:KHC-D:14082 WP No. 106969 of 2023

¶31

R/O: SHIVAPUR (H), TQ: MUDALAGI DIST: BELAGAVI-591312

¶32

11 UMESH SURESH NIPPANI

¶33

AGE: 49 YEARS, OCC: DOCTOR R/O:MAHALINGESHWAR NAGAR, GOKAK, TQ: GOKAK DIST: BELAGAVI-591307

¶34

12 KRISHNA ADIVEPPA NASHI

¶35

AGE: 52 YEARS, OCC: BUSINESS R/O: KAREMMA CIRCLE, MUDALAGI,

¶36

TQ: MUDALAGI, DIST: BELAGAVI-591312

¶37

13 SANTOSH BASAVARAJ GANITGER AGE: 45 YEARS, OCC: BUSINESS R/O: MUDALAGI, TQ: MUDALAGI, DIST: BELAGAVI-591312

¶38

…RESPONDENTS

¶39

THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT TO QUASH THE IMPUGNED ORDER DATED. 16-09-2023 PASSED BY HON’BLE I ADDL. SENIOR CIVIL JUDGE AT GOKAK BELAGAVI IN OS NO. 744/2022 VIDE ANNEXURE-G AND ETC.

¶40

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

¶41

ORDER

¶42

This petition is filed assailing the order dated 16.09.2023 passed in O.S.No.744/2022 by the I Addl. Senior Civil Judge, Gokak wherein the application filed by the respondent No.1/plaintiff under Order 23 Rule 1 of

¶43

4 - NC: 2023:KHC-D:14082 WP No. 106969 of 2023

¶44

Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) was allowed.

¶45

Brief facts are that the respondents No.1 to 5 have filed O.S.No.744/2022 wherein the present petitioners are the defendants No.2 and 3. The said suit is for partition and separate possession of the properties. During the pendency of the said suit, the plaintiffs have filed an application under Order 23 Rule 1 of CPC seeking prayer to abandon the claim against defendant No.10 in respect of suit item Nos.7 and 8, i.e., plot No.29 in TMC No.2450 of Mudalagi and plot No.30 in TMC No.2154 of Mudhol by contending that the matter is settled between the plaintiffs and defendant No.10 at the intervention of the elders. The said application was opposed by the petitioners contending that the plaintiffs are not the wife and children of defendant No.1 and the properties which the plaintiffs are intended to abandon are the joint family properties and the petitioners have right and interest over

¶46

5 - NC: 2023:KHC-D:14082 WP No. 106969 of 2023

¶47

those properties. The trail Court considering rival contentions has allowed the application of the plaintiffs.

¶48

Sri Madanmohan M. Patil, learned counsel for petitioners submits that the trial Court has committed an error in allowing the application filed by the plaintiffs for abandonment of the claim in respect of two items of the suit properties and the said attempt of the plaintiffs is only with an intention to defeat the right of the defendants No.1 to 5 who are the wife and the children of the defendant No.1. It is further contended that if the plaintiffs are allowed to compromise outside the proceedings by receiving an amount from the defendant No.10 in respect of an ancestral property, the said properties would go outside the purview of the joint family and which would ultimately result in causing injustice to the petitioners herein and lead to multiplicity of proceedings. Hence, he seeks to allow the petition.

¶49

Having heard the learned counsel for the

¶50

petitioners, perused the material available on record.

¶51

6 - NC: 2023:KHC-D:14082 WP No. 106969 of 2023

¶52

The respondents No.1 to 5 herein have filed a

¶53

suit seeking prayer for partition and separate possession of various properties, contending that the defendant No.1 Sri Vilas Nasi is the husband of the respondent No.1 and father of respondents No.2 to 5. The issue with regard to the relationship and the entitlement of share is required to be established by the plaintiffs in the pending suit. The issue in these proceedings is whether the plaintiffs can be permitted to abandon certain portion of the suit claim on the ground that they have settled the dispute with the defendant No.10 outside the Court.

¶54

On perusal of the averments made in the application and the pleading on record, it is evident that the respondents No.1 to 5 herein have filed suit for partition and separate possession and the plaintiffs are required to prove their claim before the trial Court by adducing proper evidence. The plaintiffs being the dominus litis are entitled to make decision about their case, as to whether they are intended to continue their

¶55

7 - NC: 2023:KHC-D:14082 WP No. 106969 of 2023

¶56

claims with regard to certain properties and persons. Neither the Court nor the defendants have any role with regard to abandonment of portion of claim by the plaintiffs, as long as abandonment is permissible under the law. It is also not in dispute that the properties at Sl.Nos.7 and 8 were initially included in the suit schedule which now intended to abandon from the scheme of the suit on the ground that the plaintiffs have settled their dispute with defendant No.10 does not prejudice the rights of the defendants. This Court do not find any justification for the defendants No.2 to 5 to contend that the abandonment of the plaintiffs’ claim at suit item Nos.7 and 8 would cause prejudice to their right. It is always open for the petitioner/defendants No.2 to 5 to establish their right insofar as the properties which now the plaintiffs have abandoned by independent proceedings, if they desired to do so. The defendants cannot compel the plaintiffs to prosecute the suit, when the abandonment of part claim by the plaintiffs is unconditional one.

¶57

8 - NC: 2023:KHC-D:14082 WP No. 106969 of 2023

¶58

The trial Court considering the rival contentions,

¶59

has rightly come to the conclusion that plaintiffs can abandon their rights against defendant No.10. The findings recorded by the trial Court in the impugned order are based on material on record and findings are neither perverse nor contrary to law calling for the interference in the present petition. Accordingly, writ petition is dismissed.

¶60

Sd/JUDGE

¶61

NAA List No.: 1 Sl No.: 32

Smt Indira Vilas Nashi v. Smt Susheela Vilas Nashi

Case brief

What is this about?

What did the court decide?

Smt Indira Vilas Nashi v. Smt Susheela Vilas Nashi

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

Coram

Case details

Similar cases

Kashinathsa Vs Durgadevi Trust

Nemusa S/O Dharmasa Habib, Vs Durgadevi Trust

Irappa S/O Late Basavanneppa Mallur Vs Irappa S/O. Late Nagappa Mallur

U F M Gajanan Rama Naik Vs the State of Karnataka

Smt.Durgamma W/O. Irappa Naik Vs Bibi Shaharbanu W/O. Shabandri Hasan Kojapo

Shri. Donnepudi Subhaschandra Bose Vs Smt. Hemalatha W/O Late Basavaraj Venkatapur