Allowed

Mayappa S/O Ramu Atapade v. Yallappa S/O Shivappa Atapade

Karnataka HC5 Sept 2024WP/106671/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing the Trial Court's order that rejected an application to amend a partition suit. The High Court held that the ground of oversight was not rejected and the nature of the properties is triable, directing the Trial Court to admit the properties and dispose of the suit within one year.

What did the court decide?

Impugned order rejecting amendment application was quashed; parties permitted to include properties in suit and file additional written statement; suit to be disposed within one year.

Mayappa S/O Ramu Atapade Vs Yallappa S/O Shivappa Atapade — Partition | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶2

IN THE HIGH COURT OF KARNATAKA,

¶3

DHARWAD BENCH

¶4

DATED THIS THE 5^TH DAY OF SEPTEMBER, 2024

¶5

BEFORE

¶6

THE HON'BLE MR. JUSTICE H.P.SANDESH

¶7

WRIT PETITION NO. 106671 OF 2018 (GM-CPC)

¶8

BETWEEN:

¶9

MAYAPPA S/O. RAMU ATAPADE SINCE DEAD BY LEGAL REPRESENTATIVES

¶10

1A. SMT. MUKTABAI W/O. MAYAPPA ATAPADE, AGED ABOUT 71 YEARS, OCC: HOUSEHOLD WORK,

¶11

1B. KUMAR S/O. MAYAPPA ATAPADE, AGED ABOUT 38 YEARS, OCC: AGRICULTURE,

¶12

1C. SANJEEV S/O. MAYAPPA ATAPADE, AGED ABOUT 34 YEARS, OCC: AGRICULTURE,

¶13

PETITIONER NO.1A TO 1C ARE RESIDING AT R/O. CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶14

SAROJA HANGARAKI

¶15

Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

¶16

1D. SMT. JAYASHREE W/O. GAJENDRA GHUMARE, D/O. MAYAPPA ATAPADE, AGED ABOUT 41 YEARS, OCC: HOUSEHOLD WORK, R/O. BHOJ, TQ: CHIKODI, DIST: BELAGAVI.

¶17

1E. SMT. MAHADEVI W/O. SANJEEV PATIL, D/O. MAYAPPA ATAPADE, AGED ABOUT 32 YEARS, OCC: HOUSEHOLD WORK, R/O. NAVANIHAL, TQ: KAGAWAD, DIST: BELAGAVI.

¶18

MUTTAPPA S/O. RAMU ATAPADE AGED ABOUT 61 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶19

SRIMANT S/O. RAMU ATAPADE, AGED ABOUT 51 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶20

SHIVAPPA S/O. RAMU ATAPADE, AGED ABOUT 46 YEARS, OCC: AGRICULTURE,

¶21

2 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶22

R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶23

…PETITIONERS

¶24

(BY SRI. RAJASHEKHAR BURJI, ADVOCATE)

¶25

AND:

¶26

YALLAPPA S/O. SHIVAPPA ATAPADE SINCE DEAD BY HIS LEGAL REPRESENTATIVES

¶27

1A. SMT. VIMALABAI W/O. YALLAPPA ATAPADE, AGED ABOUT 75 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶28

1B. SHANKAR S/O. YALLAPPA ATAPADE, AGED ABOUT 55 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶29

1C. SMT. TANGEWWA W/O. JAYAPPA UPPAR, AGED ABOUT 52 YEARS, OCC: HOUSEHOLD WORK, R/O: JODAKURLI, TQ: CHIKODI, DIST: BELAGAVI.

¶30

1D. SMT. MAYAWWA W/O. BALAPPA HARUGERI, AGED ABOUT 40 YEARS, OCC: AGRICULTURE, R/O: MORAB, TQ: RAIBAG, DIST: BELAGAVI.

¶31

1E. RAJENDRA S/O. YALLAPPA ATAPADE, AGED ABOUT 32 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶32

1F. SMT. SHANTAWWA W/O. LAXMAN KARAGANI, AGED ABOUT 32 YEARS, OCC: AGRICULTURE, R/O: KHANATTI, TQ: GOKAK, DIST: BELAGAVI.

¶33

1G. BALAPPA S/O. YALLAPPA ATAPADE, AGED ABOUT 34 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶34

1H. SIDDAPPA S/O. YALLAPPA ATAPADE, AGED ABOUT 30 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶35

SIDDAPPA S/O. CHENNAPPA ATAPADE, SINCE DEAD BY HIS LEGAL REPRESENTATIVES

¶36

2A. GOPAL S/O. SIDDAPPA ATAPADE, AGED ABOUT 47 YEARS, OCC: AGRICULTURE,

¶37

3 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶38

R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶39

2B. BALESH S/O. SIDDAPPA ATAPADE, AGED ABOUT 40 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶40

2C. SATYAPPA S/O. SIDDAPPA ATAPADE, AGED ABOUT 38 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶41

2D. SMT. LAXMAVVA W/O. SURESH PATIL, D/O. SIDDAPPA ATAPADE, AGED ABOUT 44 YEARS, OCC: AGRICULTURE, R/O: NAVALIHAL, TQ: KAGAWAD, DIST: BELAGAVI.

¶42

2E. SMT. SUREKHA W/O. SATYAPPA HARUGERI, D/O. SIDDAPPA ATAPADE, AGED ABOUT 42 YEARS, OCC: AGRICULTURE, R/O: MORAB, TQ: RAIBAG, DIST: BELAGAVI.

¶43

2F. SMT. MAHADEVI W/O. MUTTAPPA RENTE, D/O. SIDDAPPA ATAPADE, AGED ABOUT 35 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶44

2G. SMT. GOURAVVA W/O. PUNDALIK HARUGERI, D/O. SIDDAPPA ATAPADE, AGED ABOUT 33 YEARS, OCC: AGRICULTURE, R/O: SUTTATTI, TQ: RAIBAG, DIST: BELAGAVI.

¶45

2H. SMT. SANVAKKA W/O. YALLAPPA HARUGERI, D/O. SIDDAPPA ATAPADE, AGED ABOUT 30 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶46

2I. SMT. BALAWWA W/O. SIDDAPPA ATAPADE, AGED ABOUT 70 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶47

SMT. KASTURI W/O. GUNDU ATAPADE, AGED ABOUT 55 YEARS, OCC: HOUSEHOLD WORK, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶48

BEERAGOUDA S/O. GUNDU ATAPADE, AGED ABOUT 30 YEARS, OCC: HOUSEHOLD WORK, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶49

4 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶50

SHIVAPPA S/O. GUNDU ATAPADE, AGED ABOUT 28 YEARS, OCC: HOUSEHOLD WORK, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶51

VIVEK S/O. GUNDU ATAPADE, AGED ABOUT 20 YEARS, OCC: AGRICULTURE, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶52

KUM. PARASHURAM S/O. GUNDU ATAPADE, AGED ABOUT 13 YEARS, OCC: NIL, SINCE MINOR REPRESENTED BY MINOR GUARDIAN AND NATURAL MOTHER SMT. KASTURI W/O. GUNDU ATAPADE, AGED ABOUT 55 YEARS, OCC: HOUSEHOLD WORK, R/O: CHINCHALI, TQ: RAIBAG, DIST: BELAGAVI.

¶53

…RESPONDENTS

¶54

(BY SRI. A.P. MURARI, ADV. FOR R3-R6; SRI. SHRIHARSHA A. NEELOPANT, ADV. FOR R1(A-H); R7, R2(A) TO R2(1) ARE SERVED)

¶55

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED:22.09.2018 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC, RAIBAG REJECTING THE I.A. FILED BY THE PLAINTIFFS/PETITIONERS UNDER ORDER VI RULE 17 READWITH SECTION 151 OF CODE OF CIVIL PROCEDURE FOR AMENDMENT ON THE FILE OF O.S.NO.63/2017 PRODUCED AT ANNEXURE-"A"; ALLOW THE I.A. FILED BY THE PLAINTIFF/PETITIONER UNDER ORDER VI RULE 17 READWITH SECTION 151 OF CODE OF CIVIL PROCEDURE FOR AMENDMENT ON THE FILE OF O.S.NO.63/2017 PRODUCED AT ANNEXURE-"E" AND ETC.

¶56

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶57

5 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶58

ORAL ORDER

¶59

(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

¶60

Heard the learned counsel for the petitioners and learned counsel for the respondent Nos.3 to 6 and learned counsel for the respondent No.1.

¶61

This Court has issued notice against the LR’s of deceased respondent No.2 and they served unrepresented. The present writ petition is filed praying this Court to quash the order dated 22.09.2018, passed by the Court of Senior Civil Judge and JMFC, Raibag (hereinafter referred to as the ‘Trial Court’), in rejecting the I.A. filed by the plaintiffs/petitioners under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure Act, 1908, in O.S No.63/2017, wherein, prayed the Court to include certain properties as the suit schedule properties, when the suit is filed for the relief of partition.

¶62

In support of the application, affidavit is also filed

¶63

as per Annexure-E, wherein, it is stated that the suit is

¶64

6 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶65

filed for relief of partition and separate possession. It is necessary to add all the family properties in the suit and by oversight and mistake they have not added the above proposed landed properties and they were not definite about these lands at the time of filing the suit. It is also contended that defendant No.2 and his son’s have purchased the properties and also in the name of the brother’s wife Kasturi i.e., defendant No.3, out of income derived from the suit properties as the father of defendant No.2 was the Karta of the joint family. So it is necessary to include above lands in the present suit. The said application is resisted by filing the detailed statement of objections by the defendant No.2 and mainly it is contended in paragraph No.17 that, the proposed suit properties are the self acquired properties of the branch of Channappa Atpade, which was subsequent to the partition in the year 1971. In paragraph No.18, it is contended that, the plaintiffs themselves have admitted in the plaint paragraph No.3 about the M.E No.4078 which evidences the partition taken place between the plaintiffs and

¶66

7 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶67

defendants family. At this stage the plaintiffs cannot file the present application claiming to include the proposed suit properties after lapse of 47 years.

¶68

The Trial Court, having taken note of the ground

¶69

urged in the application as well as the statement of objections, assigned the reasons while rejecting the application that, on perusal of the entire material on record and submission made by the plaintiff and defendants, the plaintiff filed a suit against defendant Nos.1 to 7 in respect of property item Nos.1 to 12 are the joint family properties of the plaintiff and defendants. Now the plaintiff claims that, the proposed item Nos.13 to 17, 19 to 23 and 25 to 32 are the joint family property of the plaintiffs and defendants. The say of the plaintiff is after thought and those properties why not shown at the time of presentation of plaint is not revealed in the accompanying affidavit and IA’s. Hence, the application filed under Order VI Rule 17 r/w Section 151 of the CPC is rejected.

¶70

8 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶71

The learned counsel appearing for the petitioners

¶72

would vehemently contend that when the application is filed and they specifically pleaded by swearing an affidavit that the properties are purchased out of the joint family nucleus and also they were not definite about those properties and when they come to know about the same, they have not included by inadvertently the same is mentioned in the affidavit. But the Trial Court without looking into the reasons assigned in the application, the order was passed outrightly by rejecting the same. The Trial Court also observes that whether the properties are the self acquired properties are not as contended by the respondents and the same is to be considered only after the trial and hence, the Trial Court ought not to have rejected the application.

¶73

Per contra, the learned counsel appearing for the respondent Nos.3 to 6 brought to notice of this Court the statement of objections is specifically pleaded that those properties are acquired subsequent to the 1971 partition

¶74

9 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶75

and the partition was also taken place and even admitted M.E No.4078 on account of the earlier partition and when such being the case, the question of inclusion of another properties does not arise. The learned counsel appearing for the respondents also contend that they never stated anywhere in the plaint that the defendant No.2 is the Karta of the family and without any such averment in the plaint that they cannot contend in the affidavit that he was a karta. Hence, the application is liable to be rejected.

¶76

Having heard the learned counsel for the

¶77

petitioners and learned counsel appearing for respondent Nos.3 to 6 and learned counsel appearing for respondent No.1, supports the contention of the petitioners herein and

¶78

since they have not filed any statement of objections. Having taken note of the averments made in the plaint which is produced before the Court as Annexure-B, it is specifically mentioned in paragraph No.3 that there was some family arrangement between the parties in the year 1971 by way of waradi and M.E No.4078 was effected. It is

¶79

10 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶80

contended that all of them lived together and there was no any partition between the plaintiffs and the defendants and they were joint together. When the plaintiffs demanded their legitimate share in the suit properties within last month for that the defendants have refused to effect partition and separate possession in the suit properties.

¶81

It is also contended that there is no any partition so far in the family of the plaintiffs and defendants and there is no partition by metes and bounds between the parties and hence, the suit is filed. No doubt, having considered the plaint averment, it is specifically contended that there is no any partition by metes and bounds between the plaintiffs and defendants. However, there is an admission with regard to that there was a family arrangement between the parties in the year 1971 and to that effect M.E No.4078 was also effected. When such pleading was made before the Trial Court and also when the respondents took specific contentions in the statement

¶82

11 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶83

of objections filed by them that the said properties are purchased and they are the self acquired properties and when the plaintiffs also pleaded that it is only a family arrangements and there is no any partition between the parties and also reasons has been assigned in the application that Order VI Rule 7 of the CPC is invoked that by oversight and mistake they have not added the above said properties and they were not definite about these lands at the time of filing the suit and subsequently comes to know about the same, when the specific averment is made in paragraph Nos.2 and 3 for the reason assigning the adding of other properties and also it is settled law that the suit is filed for partition, there cannot be any partial partition in respect of the family properties are concerned. When the reason is assigned by the Trial Court ought to have been taken note of the reasons assigned in the application, but instead of, committed an error in coming to the conclusion that the say of the plaintiffs is a afterthought. Those properties why not shown at the time of the presentation of plaint is not revealed in the

¶84

12 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶85

accompanying application and even did not discuss anything about the paragraph Nos.2 and 3 of the affidavit filed in support of the application for amendment.

¶86

The reason assigned by the Trial Court is erroneous and in coming to the conclusion that at the time of presentation of plaint is not revealed in the accompanying affidavit on I.A. and when reasons are given in the application and affidavit, hence, the order impugned is erroneous and inclusion of the other properties will not take away the right of defendants, when the plaintiffs claims those properties are out of the joint nucleus of the other properties are purchased and whether those properties are purchased out of the joint nucleus or the self acquired properties, subsequent to the family arrangement as contended by the defendants in the written statement itself is a matter of trial. Hence, the order impugned requires to be quashed.

¶87

In view of the discussions made above, I pass the following:

¶88

13 -

¶89

NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶90

ORDER

¶91

a) The writ petition is allowed.

¶92

b) The impugned order, dated 22.09.2018, by rejecting the application filed under Order VI Rule 7 r/w Section 151 of the CPC is hereby quashed. Consequently, the inclusion of the other properties is permitted to include the same in the suit.

¶93

c) The defendants are also permitted to file additional written statement in view of allowing of the application filed under Order VI Rule 7 r/w Section 151 of the CPC.

¶94

d) The Trial Court is directed to dispose of the matter within a time bound period of one year.

¶95

The respective counsels and parties are directed to assist the Trial Court in disposal of the suit in a stipulated time.

¶96

14 - NC: 2024:KHC-D:12824 WP No. 106671 of 2018

¶97

e) Learned counsel for the petitioners is directed to furnish a copy of this order forthwith to the Trial Court to proceed in the matter in view of the direction.

¶98

Sd/(H.P.SANDESH) JUDGE

¶99

PMP CT-MCK List No.: 2 Sl No.: 3

Mayappa S/O Ramu Atapade v. Yallappa S/O Shivappa Atapade

Case brief

What is this about?

What did the court decide?

Mayappa S/O Ramu Atapade v. Yallappa S/O Shivappa Atapade

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

Kiran S Vs the State of Karnataka

Shivanand Shetty S/O Giriyappa Shetty Vs Vivekasri Vividoddesha Souharda Sahakari Niyamit

Ramanna and Ors. Vs the State

Narayan Sannakusa Harikant, Vs Gajanan Shivaram Bhat

Kasturewwa W/O Shrishail Jakkannavar Vs Chikkappa a/F Shrishail Jakkannavar

Mahadevappa S/O Irappanna @ Virupanna @ Virupaxi Basappa @ Vakkliger Vs Competent Authority