Disposed¶52

Sri Kadappa Subrai Kochari v. Smt Kallawa Since Dead by Her Lrs

Karnataka HC21 Feb 2025WP/101342/2025

Case brief

AI extract

What is this about?

High Court of Karnataka, Dharwad Bench; WP No.101342 of 2025 (GM-CPC); Justice Suraj Govindaraj; order dated 21.02.2025. Execution/possession dispute under Section 151 CPC in Ex.P.141/2015 arising from decree in partition suit O.S.No.82/2000 (FDP 11/2013, final decree 08.07.2015). Petitioner-defendant who adopted written statement denying deceased Kallawa's rights and relationship denied relief; directed to establish heirship in separate proceedings; I.A.6 & 7 upheld as rightly rejected; certiorari refused; petition disposed.

What did the court decide?

None; the petition was disposed of with observations permitting the petitioner to establish his rights in separate proceedings. ¶52

Sri Kadappa Subrai Kochari Vs Smt Kallawa Since… — Writ and Judicial Review | Karnataka HC (2025)

What the court decided

AI extract

Outcome

None; the petition was disposed of with observations permitting the petitioner to establish his rights in separate proceedings.

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Issue for consideration

Whether the petitioner, who as defendant No.2 in O.S.No.82/2000 adopted the written statement denying Kallawa's rights and the family relationship, is entitled to delivery of possession of a share in the decree property in execution (EP 141/2015) as her legal heir, alongside respondents 1.1 and 1.2.

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Court's answer

Having adopted the written statement in which Kallawa's rights over the properties and the family relationship were disputed and denied, the petitioner cannot now claim to be her legal heir entitled to an equal share with respondents 1.1 and 1.2; the petitioner also chose to remain silent until 2022, moving only when delivery of possession to respondents 1.1 and 1.2 was imminent.

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Ratio / Principle

Since the relationship was disputed and the petitioner's rights have not been determined in any proceedings till date, it is for the petitioner to establish his relationship with Kallava and claim right under her in separate proceedings.

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Key takeaways

The petitioner's applications I.A.Nos.VI and VII were rightly rejected by the executing Court; the observations in this order and in the order dated 05.11.2024 in Ex.P.141/2015 will not come in the way of determination of the petitioner's rights in a suit, if and so filed.ratio¶51

Detailed headnote1 paragraphs

Writ petition under Article 226 by the defendant No.2 in O.S.No.82/2000 (partition suit by Smt. Kallawwa, decreed; FDP No.11/2013 final decree dated 08.07.2015; execution Ex.P.141/2015) challenging the common order dated 05.11.2024 of the Senior Civil Judge, Hukkeri dismissing I.A.Nos.6 and 7 filed under Section 151 CPC, whereby he sought delivery of possession claiming a 1/3rd share as legal heir of Kallawa. Held: having adopted the 1st defendant's written statement disputing and denying Kallawa's rights and the family relationship, the petitioner cannot now claim an equal share as her legal heir, particularly as he remained silent until 2022; the relationship must be established in separate proceedings since his rights stand undetermined; the applications were rightly rejected, and the Court's observations will not bar a fresh suit. Petition disposed.

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NC: 2025:KHC-D:3656 WP No. 101342 of 2025

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21^ST DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 101342 OF 2025 (GM-CPC)

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BETWEEN:

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SRI. KADAPPA SUBRAI KOCHARI, AGE: 72 YEARS, OCC: PENSIONER, R/O. NEAR POLICE STATION, GOKAK ROAD, HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309.

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…PETITIONER

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(BY SRI. S.H. MITTALKOD, ADVOCATE)

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AND:

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SMT KALLAWA SINCE DEAD BY HER LRS

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1.1 IRABASSAVVA D/O. SUBRAI KOCHARI, AGE: 56 YEARS, OCC: SERVICE, R/O.15^TH BLOCK, KORAMANGALA, BENGALURU-560034.

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ASHPAK KASHIMSA MALAGALADINNI Digitally signed byASHPAK KASHIMSA MALAGALADINNI Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.27 17:00:44 +0530

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1.2. TUKARAM S/O. SUBRAI KOCHARI, AGE: 64 YEARS, OCC: AGRICULTURE, R/O. PLOT NO.1031, NEAR STADIUM, RAMTHEERTH NAGAR, BELAGAVI-591265.

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KADAPPA BASAWA HOLER SINCE DEAD BY HIS LRS

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2.1 HIRABI KADAPPA BASTWAD, AGE: 72 YEARS, OCC: AGRICULTURE, R/O. HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309.

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2.2 UDAY KADAPPA BASTAWAD, AGE: 62 YEARS, OCC: AGRICULTURE, R/O. HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309.

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NC: 2025:KHC-D:3656 WP No. 101342 of 2025

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2.3 VIJAYKUMAR KADAPPA BASTWAD, AGE: 52 YEARS, OCC: AGRICULTURE, R/O. HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309.

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2.4 SANJU KADAPPA BASTWAD, AGE: 62 YEARS, OCC: AGRICULTURE, R/O. HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309.

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UDAYKUMAR KADAPPA BASTWAD, AGE: 62 YEARS, OCC: NIL, R/O. NEAR POLICE STATION, GOKAK ROAD, HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309.

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SANJEEVKUMAR S/O. KADAPPA BASTWAD, AGE: 60 YEARS, OCC: AGRICULTURE, R/O. NEAR POLICE STATION, GOKAK ROAD, HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309.

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…RESPONDENTS

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(BY SMT. SUNANDA P. PATIL, ADVOCATE FOR R1(1-2), R2(2-3), R3 & R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI AND QUASH THE COMMON ORDER DATED 05.11.2024 PASSED BY THE SENIOR CIVIL JUDGE, HUKKERI IN IAS 6 AND 7 ON 5-11-2024 AND CONSEQUENTLY ALLOW I.AS NO.6 AND 7 FILED UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908, IN EP NO.141/2015 AT ANNEXURE-A; MODIFIED THE IMPUGNED ORDERS CLARIFYING THAT THE HANDING OVER OF POSSESSION HALF SHARE OF KALLAWA TO RESPONDENT1.1 AND 1.2 ENSURES THE BENEFIT OF THIS PETITIONER ALSO; GRANT SUCH OTHER RELIEF/S AS THIS HON'BLE COURT DEEMS FIT TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE CASE.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2025:KHC-D:3656 WP No. 101342 of 2025

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

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The petitioner is before this Court seeking for the following reliefs:

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a. Issue a writ of certiorari and quash the common order dated 05.11.2024 passed by the Senior Civil Judge, Hukkeri in I.A.s 6 and 7 on 5-11-2024 and consequently allow I.A.s no.6 and 7 filed under section 151 of the Code of Civil Procedure, 1908, in EP No.141/2015 at Annexure-A;

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b. Modified the impugned orders clarifying that the handing over of possession half share of Kallawa to Respondent 1.1 and 1.2 ensures the benefit of this petitioner also;

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c. Grant such other relief/s as this Hon'ble Court deems fit to grant in the facts and circumstances of the case.

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One Smt. Kallawwa had preferred a suit in O.S.No.82/2000 before the Senior Civil Judge at Hukkeri for partition and separate possession of the plaintiff’s half share in the suit property. The 1^st defendant had filed a written statement denying the plaint averments. The petitioner herein was the defendant No.2 therein had adopted the said written statement. The trial Court had decreed the suit and

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NC: 2025:KHC-D:3656 WP No. 101342 of 2025

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FDP proceedings in FDP.No.11/2013 had been filed and a final decree was also drawn up on 08.07.2015. Subsequently, Ex.P.No.141/2015 had been filed. It is at the final stage, when the execution proceedings was in the closing stage a bailiff having been appointed to handover the possession to respondents No.1.1 and 1.2 that the petitioner filed an application on 28.03.2022 seeking for delivery of possession to the petitioner along with respondents No.1.1 and 1.2. another application had been filed under Section 151

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of CPC for rejection of the bailiff report and issuance of fresh warrant to the bailiff to handover the possession to the petitioner and respondents No.1.1 and 1.2. Both applications having been objected to, the execution Court vide its order had dismissed those applications. It is challenging the same, petitioner is before this Court.

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The submission of learned counsel Sri S.H.Mittalkod

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is that the petitioner has committed a mistake by

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5 - NC: 2025:KHC-D:3656 WP No. 101342 of 2025

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adopting the written statement filed by the 1^st defendant. The petitioner being defendant No.2 in the said suit in O.S.No.82/2000. His submission is that the relationship between himself and Kallavva not being in dispute. The decree holders respondents No.1.1 and 1.2 being his sister and brother respectively, the petitioner is also entitled to equal share with them in mother Kallavva’s property and as such applications filed ought to have been rightly considered and orders passed.

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A perusal of the impugned order, more particularly at paragraph No.12 thereof would indicate that the petitioner who was defendant No.2 in O.S.No.82/2000 has adopted the written statement filed by the 1^st defendant, wherein the right of the Kallawwa in regard to the properties have been disputed and denied so also the relationship with the family been denied. This aspect of the relationship being denied would have to be separately considered,

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NC: 2025:KHC-D:3656 WP No. 101342 of 2025

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when the petitioner has adopted the said written statement. When the relationship is denied, the petitioner cannot now claim being the legal heir of Kallavva he is entitled to equal share with respondents No.1.1 and 1.2. The petitioner chose to remain quite till the year 2022 even though the execution petition was filed in the year 2015 and it is only when the delivery of the possession was required to be made to respondents No.1.1 and 1.2 that such an application came to be filed by the petitioner seeking for delivery of a portion of the property in his favour claiming 1/3^rd right.

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The relationship having been disputed, it would be for the petitioner to establish relationship now to claim right under Kallavva by a separate proceedings since rights of the petitioner has not been determined in any of proceedings till date, that being so, I am of the considered opinion that applications filed by the petitioner in I.A.Nos.VI and VII as

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7 - NC: 2025:KHC-D:3656 WP No. 101342 of 2025

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indicated above have been rightly rejected by the executing Court. It is for the petitioner to file separate proceedings to establish his rights, if any. The observations made in the present order and that in the order dated 05.11.2024 passed in Ex.P.141/2015, would not come in the way of determination of the right of the petitioner in a suit, if and so filed by the petitioner.

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With the above observations the petition stands disposed.

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Sd/(SURAJ GOVINDARAJ) JUDGE

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CKK CT-MCK

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List No.: 1 Sl No.: 40

Sri Kadappa Subrai Kochari v. Smt Kallawa Since Dead by Her Lrs

Case brief

What is this about?

What did the court decide?

Sri Kadappa Subrai Kochari v. Smt Kallawa Since Dead by Her Lrs

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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