Sri. Basappa S/O Siddappa ... vs Smt. Vijayalaxmi W/O ...
2023 Latest Caselaw 5308 Kant

                                                   -1-
                                                            NC: 2023:KHC-D:8313
                                                             WP No. 102610 of 2021




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                DATED THIS THE 4TH DAY OF AUGUST, 2023

                                                 BEFORE

                           THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

                              WRIT PETITION NO. 102610 OF 2021 (GM-CPC)

                      BETWEEN:

                      SRI BASAPPA S/O. SIDDAPPA KALLAPADI,
                      AGE: 57 YEARS, OCC: AGRICULTURE,
                      R/O: CHIKKASHELLIKERI,
                      TAL: & DIST: BAGALKOT-587 204.
                                                                  ...PETITIONER
                      (BY SRI ANAND ASHTEKAR, ADV. FOR SRI AKSHAYA ANIL KATTI,
                      ADVOCATE)

                      AND:

                      1.   SMT. VIJAYALAXMI
                           W/O. GOUDAPPAGOUDA GOUDAR,
                           AGE: 52 YEARS,
                           OCC: HOUSEHOLD WORK,
                           R/O: PLOT NO.87, NAVANAGAR,
                           BAGALKOT-587103.

MOHANKUMAR            2.   SMT. SUDHA @ TULASABAI
B SHELAR                   W/O. HANUMANTGOUDA HUNASIKATTI,
Digitally signed by
                           AGE: 34 YEARS, OCC: SERVICE,
MOHANKUMAR B
SHELAR
                           R/O: KHAJJIDONI,
Location: DHARWAD
Date: 2023.08.08           TAL: AND DIST: BAGALKOT-587204.
12:52:31 -0700


                      3.   SHRI VENKANAGOUDA
                           S/O. GOUDAPPAGOUDA GOUDAR,
                           AGE: 31 YEARS, OCC: SERVICE,
                           R/O: SECTOR NO.29, PLOT NO.87,
                           NAVANAGAR, BAGALKOT-587 103.

                      4.   SMT. SEEMA @ PARVATI
                           W/O. SHIVAKUMAR PATIL,
                           AGED: 28 YEARS, OCC: SERVICE,
                           R/O: CHIKKASHELLIKERI,
                           TAL: AND DIST: BAGALKOT-587204,
                              -2-
                                    NC: 2023:KHC-D:8313
                                        WP No. 102610 of 2021




     AT PRESENT RESIDING AT:
     HANUMAN NAGAR,
     TAL: AND DIST: BELAGAVI-590 019.

5.   SMT. MUTTAVVA W/O. BASAPPA KALLAPADI,
     AGE: 52 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O: CHIKKASHELLIKERI,
     TAL: AND DIST: BAGALKOT-587 204.

6.   KUM. PREMA D/O. BASAPPA KALLAPPADI,
     AGE: 28 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O: CHIKKASHELLIKERI,
     TAL: AND DIST: BAGALKOT-587 204.

7.   SRI SIDDAPPA S/O. BASAPPA KALLAPADI,
     AGE: 21 YEARS, OCC: STUDENT,
     R/O: CHIKKASHELLIKERI,
     TAL: AND DIST: BAGALKOT-587 204.

                                               ...RESPONDENTS

(BY SRI MRUTYUNJAYA S. HALLIKERI, ADV. FOR C/R1 TO R4;
 NOTICE TO R5 TO R7 IS DISPENSED WITH)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT,
ORDER OR DIRECTION AND QUASH THE ORDER DATED 15/04/2021
PASSED BY I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
BAGALKOT, ON I.A.NO.5 FILED IN O.S.NO.150/2019 PRODUCED AT
ANNEXURE-K.


      THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
                                -3-
                                         NC: 2023:KHC-D:8313
                                            WP No. 102610 of 2021




                             ORDER

Captioned writ petition is filed by defendant No.1

assailing the order of the learned Judge on I.A.No.5, who has

declined to entertain application filed under Section 10 of CPC

by the present petitioner/defendant No.1.

2. The present petitioner is seeking stay of the

proceedings on the ground that subject matter of the suit is

ceased in RFA No.100345/2020.

3. The petition is liable to be dismissed on two counts.

Petitioners have filed a partition suit in O.S.No.84/2011

questioning the sale deed executed by the present respondent-

plaintiff's vendor which is dated 30.09.2005. The Trial Court

has dismissed the petitioner's suit filed in O.S.No.84/2011 by

recording a categorical finding that land bearing RS No.106

though totally measures 12 acres, western portion measuring 6

acres is self acquired property of the plaintiff's vendor. The

partition suit filed by the present petitioner in O.S.No.84/2011

is dismissed against which appeal is filed and same is pending

consideration before this Court in RFA No. 100345/2020. If

these significant details are taken into consideration, the

provisions of Section 10 of CPC are not applicable to the

NC: 2023:KHC-D:8313 WP No. 102610 of 2021

present case on hand. The plaintiff's suit for partition is already

dismissed. The subject matter of the present suit is held to be

self-acquired property of respondent's/plaintiff's vendor. It is

only when two suits are pending, the subsequent suit in respect

of same matter, which is also directly and substantially in issue

in previously instituted suit, the same has to be stayed to avoid

conflicting judgments. In the light of the discussions made

supra, application under Section 10 of CPC has no application

to the present case on hand. The writ petition, being devoid of

merits, stands dismissed.

4. It is needless to say that the title of

respondent/plaintiff based on registered sale deed will be

subject to outcome of pending regular first appeal.

5. In view of disposal of the petition, pending

interlocutory applications, if any, do not survive for

consideration and are disposed of accordingly.

Sd/-

JUDGE