Allowed

Smt.Rohini W/O Ashok Bhat v. Smt.Bharati Anilkumar Bhat

Karnataka HC9 Sept 2024WP/108587/2018

Case brief

AI extract

What is this about?

Legal representatives of a deceased plaintiff in final decree proceedings were not made parties before the Commissioner's inspection and report were accepted. The Court quashed the impugned order and directed a fresh inspection with notice to them and fresh consideration by the Trial Court.

What did the court decide?

Order dated 13.11.2018 in FDP No.14/2014 quashed; fresh Commissioner's inspection with notice to petitioners; Trial Court to consider report afresh.

Smt.Rohini W/O Ashok Bhat Vs Smt.Bharati Anilkumar Bhat — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12877 WP No. 108587 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9^TH DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH WRIT PETITION NO. 108587 OF 2018 (GM-CPC)

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BETWEEN:

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SMT. ROHINI W/O. ASHOK BHAT, AGE: 51 YEARS, R/O: PLOT NO.201, 202 SHEERJI APARTMENT NAVAGAON LAXMAN MHARTRE ROAD, DAHISAR (WEST) MUMBAI, MAHARASHTRA STATE.

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AJAY S/O. ASHOK BHAT, AGE: 33 YEARS, R/O: PLOT NO.201, 202 SHEERJI APARTMENT NAVAGAON LAXMAN MHARTRE ROAD, DAHISAR (WEST) MUMBAI, MAHARASHTRA STATE.

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AKSHAY ASHOK BHAT, AGE: 31 YEARS, R/O: PLOT NO.201, 202 SHEERJI APARTMENT NAVAGAON LAXMAN MHARTRE ROAD, DAHISAR (WEST) MUMBAI, MAHARASHTRA STATE.

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GIRIJA A BYAHATTI

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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(BY SRI. J.S. SHETTY, ADVOCATE)

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AND:

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…PETITIONERS

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SMT. BHARATI ANILKUMAR BHAT, AGE: 58 YEARS, R/O: GHATKOPPAR (WEST), CHINTAMANI APARTMENT, FLATL NO.703, SAINTH NAGAR, L.B.S. MARG, MUMBAI-400086.

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SMT. SHOBHA ARUNKUMAR BHAT, AGE: 52 YEARS, CHINTAMANI APARTMENT, FLATL NO.703, SAINTH NAGAR, L.B.S. MARG, MUMBAI-400086.

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…RESPONDENTS

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(BY SMT. G. MEERABAI, ADV. FOR R1 & R2)

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2 - NC: 2024:KHC-D:12877 WP No. 108587 of 2018

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE ORDER DATED 13/11/2018 PASSED BY THE ADDITIONAL CIVIL JUDGE KUMTA IN FDP NO.14/2014, THE COPY OF THE ORDER SHEET OF WHICH HAS PRODUCED HEREWITH AND MARKED AS ANNEXURE-A AND ETC.

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

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ORAL ORDER

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

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Heard the petitioners’ counsel. Counsel for the

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respondents is absent. In the order dated 19.08.2024, made it clear that if the counsel for the respondents does not appear in the next of hearing, the matter will be heard in their absence.

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The main contention of the petitioners before this Court while seeking the relief of writ of certiorari to quash the order dated 13.11.2018 in FDP No.14/2014 as per Annexure-A that the husband of petitioner No.1 and father of the petitioner Nos.2 and 3 was the original plaintiff and he filed a suit for the relief of partition and suit was partly decreed and final decree proceedings was also initiated by the defendant. The original plaintiff passed away on

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3 - NC: 2024:KHC-D:12877 WP No. 108587 of 2018

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04.09.2016 and before the death, commissioner was appointed, in the meanwhile the original defendants who are the petitioners in FDP did not bring the petitioner as legal representatives of the original plaintiff and property was inspected on 28.09.2016 and report was submitted on 02.11.2016 and by that time, the petitioners were not parties and the Commissioner’s report also accepted by the Trial Court in the absence of these petitioners. Hence, prayed the Court to quash the order dated 13.11.2018. The respondents also not dispute the fact that out of suit schedule properties, A schedule property is measuring 16 guntas 12 anas and out of the said 16 guntas, a house is also in existence, which is B schedule property i.e., building.

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The counsel for petitioners would submit that the B schedule property was allotted in favour of defendant No.2 and also the Trial Court ordered to auction the schedule ‘B’ property but Schedule ‘B’ property is only a building situated in ‘A’ schedule property and ‘A’ schedule

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4 - NC: 2024:KHC-D:12877 WP No. 108587 of 2018

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property is 16 guntas of land including the building. The main contention of the petitioners is that the original plaintiff passed away on 04.09.2016 and in the absence of these petitioners, property was inspected on 28.09.2016 and report was submitted on 02.11.2016 and the same was accepted on 13.11.2018 and at that time, these petitioners were not the parties. Hence, prayed this Court to quash the order dated 13.11.2018

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When the FDP proceedings was initiated at the instance of the original defendants and when the original plaintiff passed away, in the meanwhile after the appointment of Commissioner and before the inspection of the property and submitting the report, the defendants ought to have made the petitioners as parties to the proceedings and the same has not been done and the report is also in the absence of the petitioners. It is submitted that the petitioners themselves filed an application before the Trial Court to come on record as the legal representatives of the original plaintiff and

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5 - NC: 2024:KHC-D:12877 WP No. 108587 of 2018

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subsequently they have been made as parties when the inspection was also conducted in their absence and the report of the Commissioner was accepted. When such being the case, it is appropriate to quash the order dated 13.11.2018.

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In view of the discussions made above, I pass the

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following :

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ORDER

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(i) Writ Petition is allowed.

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(ii) The impugned order the order dated 13.11.2018 passed by the Additional Civil Judge, Kumta in FDP No.14/2014 as per Annexure-A is quashed

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(iii) The Commissioner to make fresh inspection by giving notice to the petitioners, submit report and thereafter the Trial Court to consider the report and pass appropriate order.

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Sd/(H.P.SANDESH) JUDGE

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

Smt.Rohini W/O Ashok Bhat v. Smt.Bharati Anilkumar Bhat

Case brief

What is this about?

What did the court decide?

Smt.Rohini W/O Ashok Bhat v. Smt.Bharati Anilkumar Bhat

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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