Karnataka High Court
Manohar And Anr vs Mallappa And Ors on 6 August, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2024:KHC-K:5760
WP No. 203194 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 203194 OF 2023 (GM-CPC)
BETWEEN:
1. MANOHAR
S/O KIDIYAPPA WALIKAR
AGE 30 YEARS
OCCUPATION: AGRICULTURE,
RESIDENT OF HALLADGENNUR TQ. B. BAGEWADI
DIST VIJAYAPURA
2. SMT. KALLAWWA
W/O KIDIYAPPA WALIKAR
AGE 60 YEARS
OCCUPATION: AGRICULTURE,
RESIDENT OF HALLADGENNUR TQ. B. BAGEWADI
DIST VIJAYAPURA
...PETITIONERS
Digitally signed by
BASALINGAPPA (BY SRI. MANVENDRA REDDY &
SHIVARAJ SRI. NARENDRA REDDY,ADVOCATES)
DHUTTARGAON
Location: HIGH
COURT OF AND:
KARNATAKA
1. MALLAPPA
S/O HAJAPPA KANABUR
AGE 37 YEARS
OCCUPATION: AGRICULTURE
RESIDENT OF HALLADGENNUR TQ. B. BAGEWADI
DIST VIJAYAPURA-586101.
2. VIHTAPPA
S/O HAJAPPA KANABUR
AGE 35 YEARS
OCCUPATION AGRICULTURE
RESIDENT OF HALLADGENNUR TQ. B. BAGEWADI
-2-
NC: 2024:KHC-K:5760
WP No. 203194 of 2023
DIST VIJAYAPURA-586101.
3. SMT. YALLAWWA
W/O HAJAPPA KANABUR
AGE 53 YEARS
OCCUPATION HOUSEHOLD
RESIDENT OF HALLADGENNUR TQ. B. BAGEWADI
DIST VIJAYAPURA-586101.
YAMANAWWA
W/O BASAPPA WALIKAR
SINCE DEAD BY LR's
4. ASHOK
S/O HAJAPPA KANABUR
AGED ABOUT 38 YEARS
OCCUPATION: SERVICE
RESIDENCE OF HALLADGENNUR TQ B B AGEWADI
DISTRICT VIJAYAPURA.
...RESPONDENTS
(BY SRI. SANGANABASAVA B PATIL., ADVOCATE FOR FOR R1
V/O DTD 19.07.2024 NOTICE TO R2 IS D/W
R3- SERVED
SRI. CHANDRAKANT KOUJALAGI &
SRI. S L MAYUR., ADVOCATES FOR R4)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF THE CERTIORARI THEREBY QUSHING THE
IMPUGNED ORDER DATED 13.10.2023 PASSED IN OS NO. 38/2010
C/W OS NO. 351/2011 BY SENIOR CIVIL JUDGE AT BASAVANA
BAGEWADI AT ANNEXURE N, IN THE INTEREST OF JUSTICE AND
EQUTIY AND ETC.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
-3-
NC: 2024:KHC-K:5760
WP No. 203194 of 2023
ORAL ORDER
(PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioners are before this Court seeking for the
following reliefs:
1. Issue a writ in the nature of the Certiorari thereby
quashing the impugned order dated 13.10.2023
passed in O.S.No.38/2010 c/w O.S.No.351/2011 by
the Senior Civil Judge at Basavana Bagewadi, at
Annexure-N, in the interest of justice and equity.
2. Issue writ in the nature of Mandamus thereby reject
the findings on will dated 29.07.2017 on the file of
Senior Civil Judge at Basavana Bagewadi, in the
interest of justice and equity.
3. Issue any other suitable writ or order or direction
which the Hon'ble Court may deems fit in the
circumstances of the case, as stated above, in the
interest of justice and equity.
2. The original respondent No.4 had filed a suit in
O.S.No.38/2010 seeking for partition and separate
possession of the suit schedule properties. The said
suit was decreed granting 1/3rd share to the plaintiff
vide a judgment dated 29.07.2017. There being one
other suit filed by the petitioners in
O.S.No.351/2011, it was declared that the
petitioners are entitled for 1/3rd share.
NC: 2024:KHC-K:5760
3. The said judgments were carried in appeals in
R.A.No.106/2017 and R.A.No.107/2017, filed before
the I Additional District and Sessions Judge,
Viajayapura contending that respondent No.4 is not
entitled to equal share. In the said matter,
respondent No.4 having expired, one Mr.Ashok S/o
Ajappa Kanabur had filed an application under Rule
10 of Order 22 of CPC seeking permission to come on
record in view of the assignment in his favour.
4. The first Appellate Court considering the objections
raised referred the matter to the Trial Court for
holding an inquiry and giving a finding as regards the
legal representative in terms of Rule 5 of Order 22 of
CPC. The Trial Court after considering the evidence
on record submitted its finding on 13.10.2023
accepting Sri.Ashok S/o Ajappa Kanabur as a legatee
under a Will said to be executed by deceased
Yallavva. It is challenging the said finding that the
petitioners are before this Court.
NC: 2024:KHC-K:5760
5. Having heard both the counsel, the finding which has
been given is in pursuance of an enquiry made under
Rule 5 of Order 22 of CPC, and has been so rendered
on a reference made by the first Appellate Court.
The first appeal is still pending before the first
Appellate Court. Hence, I am of the opinion that it is
Rule 26 of Order 41 of CPC which would be applicable
wherein the petitioners can challenge the finding
rendered by the Trial Court on a reference which will
be considered by the first Appellate Court along with
the appeal filed.
6. Reserving liberty to the petitioners to raise these
grounds in terms of Rule 26 of Order 41 of CPC, the
petition stands disposed.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
PRS
