Karnataka High Court

Vanmala And Ors vs Anuradha on 29 May, 2024

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                                                NC: 2024:KHC-K:3368
                                                 WP No. 201095 of 2024




                          IN THE HIGH COURT OF KARNATAKA

                                 KALABURAGI BENCH

                       DATED THIS THE 29TH DAY OF MAY, 2024

                                       BEFORE
                         THE HON'BLE MR JUSTICE R.NATARAJ
                    WRIT PETITION NO. 201095 OF 2024 (GM-CPC)
               BETWEEN:

               1.   VANMALA,
                    W/O RANGARAO DESHPANDE
                    AGED ABOUT 87 YEARS,
                    OCC: HOUSEHOLD WORK
                    RESIDENT OF H NO. 5-4-72 MURLIDHAR BAGH,
                    J. N. ROAD, ABIDS SOUTH,
                    HYDERABAD-500001
                    (TELANGANA STATE).

               2.   SMT. ARUNA
                    W/O SUDHINDRA DESAI
                    AGE: 60 YEARS OCC: LEGAL PRACTITIONER,
                    RESIDENT OF VYAS VIHAR,
                    YALAKKI SHETTAR COLONY,
Digitally           NEAR PURANDAR MANTAPA,
signed by
RENUKA              NAVALOOR AGASI ROAD, DHARWAD-580006.
Location:
High Court     3.   SMT. ARCHANA,
Of Karnataka        D/O RANGARAO DESHPANDE
                    W/O SUNIL PATIL,
                    AGE: 59 YEARS OCC: SUSHEEL BUILDING,
                    RESIDENT OF 5TH CROSS,
                    KALYAN NAGAR, DHARWAD-580007

               4.   LAXMIKANT,
                    S/O RANGARAO DESHPANDE,
                    AGE: 56 YEAR OCC: SERVICE,
                    RESIDENT OF NO. 34581, PUEBLO FERMONT,
                    CA 34581 USA,
                    PRESENTLY AT DEV KRUPA,
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                                 NC: 2024:KHC-K:3368
                                     WP No. 201095 of 2024




    H NO. 5-4-72
    MURLIDHAR BAGH, J. N. ROAD,
    ABIDS SOUTH, HYDERABAD-500001
    (TELANGANA STATE).
    THROUGH SPA HOLDER,
    SMT. ARUNA W/O SUDHINDRA DESAI,
    AGE: 60 YEARS OCC: LEGAL PRACTITIONER,
    RESIDENT OF VYAS VIHAR, YALAKKI SHETTAR
    COLONY, NEAR PURANDAR MANTAPA
    NAVALOOR AGASI ROAD,
    DHARWAD-5800065
                                         ...PETITIONERS
(BY SRI. ANANTH S. JAHAGIRDAR, ADVOCATE)

AND:

1.   ANURADHA,
     D/O RANGARAO DESHPANDE @ PADMA
     W/O SHRINIVAS KULKARNI,
     AGED ABOUT 63 YEAR
     LEGAL PRACTITIONER
     RESIDENT OF SHIVA PARVATI KRUPA,
     PRAYAG COMPOUND, OPP. TRAVELLERS, BUNGLOW,
     DHARWAD-580008.

2.   SAATVIKA,
     D/O LAXMIKANTH DESHPANDE,
     AGED ABOUT 27 YEARS,
     OCC: NILL
     RESIDENT OF NO. 34581,
     PUBELO FERMONT,
     CA 34581 USA,
     PRESENTLY, AT DEV KRUPA,
     H NO. 5-4-72, MURLIDHAR BAGH,
     J. N. ROAD, ABIDS SOUTH,
     HYDERABAD-500001
     (TELANGANA STATE).

3.   SAADHANA,
     D/O LAXMIKANTH DESHPANDE,
     AGED ABOUT 25 YEARS,
     OCC: NILL
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                                    NC: 2024:KHC-K:3368
                                      WP No. 201095 of 2024




    RESIDENT OF NO. 34581,
    PUBELO FERMONT,
    CA 34581 USA,
    PRESENTLY AT DEV KRUPA,
    H. NO. 5-4-72,
    MURLIDHAR BAGH, J. N. ROAD,
    ABIDS SOUTH, HYDERABAD-500001
    (TELANGANA STATE).
                                              ...RESPONDENTS

(BY SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE FOR R1)

       THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
MANDAMUS AND DIRECT THE TRIAL COURT TO PASS AN
ORDER ON I.A NO.4 FILED UNDER ORDER XX RULE 18 OF CPC
AND I.A NO.5 FILED UNDER ORDER XXVI RULE 9 AND 10 OF
CPC OF THE FILE OF SENIOR CIVIL JUDGE AT SEDAM IN OS
NO. 45/2023, THE COPY OF WHICH IS AT ANNEXURE-D AND E.

     THIS WRIT PETITION IS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

The defendant Nos.1 to 4 in O.S.No.45/2023 on the file of

the Senior Civil Judge and JMFC, Sedam (henceforth referred to

as 'Trial Court') have sought for a writ in the nature of

mandamus to direct the Trial Court to pass appropriate orders

on I.A.No.4 and 5 filed by them.

2. The suit in O.S.No.45/2023 was filed for partition

and separate possession of the plaintiff's share in the suit

schedule properties. The defendant Nos.1 to 4 filed written

NC: 2024:KHC-K:3368

statement conceding to the claim of the plaintiff and defendant

Nos.5 and 6 filed a memo adopting the written statement filed

by the defendant Nos.1 to 4. Therefore, all the defendants have

conceded to the claim of the plaintiff for partition and separate

possession of her share in the suit schedule properties. The

defendant No.1 filed applications under Order XX Rule 18 (IA

no.4) and under Order XXVI Rules 9 and 10 of CPC (IA no.5) to

send the preliminary decree to the ADLR for effecting partition

and to appoint a Court Commissioner to demarcate and divide

the urban properties.

3. In the meanwhile, the plaintiff filed an application

under Order VI Rule 17 of CPC (IA no.6) to amend the plaint to

seek for additional reliefs against the defendant No.4 in the

form of damages for demolition of the building that existed on

the Schedule 'B' property. The said application was allowed

and confirmed by this Court in W.P.No.201181/2024.

4. The petitioners pray that the Trial Court be

directed to consider and dispose off the aforementioned two

applications filed by them, namely IA no. 4 and 5.

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5. The learned counsel for the plaintiff/respondent

No.1 submits that the application filed by plaintiff for

amendment of the plaint reliefs to claim damages is allowed

and therefore, unless the said reliefs are tried, the question of

dividing the properties does not arise.

6. The learned counsel for the plaintiff did not

dispute the fact that the defendants had all conceded to

partition the suit properties, which comprised of agricultural

lands and a residential house. The amended relief was in

respect of the residential house and not in respect of the

agricultural lands. Therefore, there is no impediment for the

Trial Court to draw a preliminary decree based on the

admission of the defendants in the suit. It is now well settled

that the Court can draw any number of preliminary decrees

based on the agreement between the parties. Therefore, the

Trial Court should not postpone the drawing up of a preliminary

decree and in view of the judgment of the Hon'ble Apex Court

in Kattukandi Edathil Krishnan vs. Kathukandi Edathil

Valsan [2022 SCC Online SC 737], where it was held

NC: 2024:KHC-K:3368

"33. We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings."

7. In view of the above, the Court is bound to take

steps towards a final decree by considering the applications

filed by the defendants. The only outstanding issue would be

regarding the entitlement of the plaintiff to claim damages. If

that issue is answered, the amount of damages that the

NC: 2024:KHC-K:3368

plaintiff may be entitled to, can be recovered from out of share

of the concerned defendant who is liable.

8. In that view of the matter, this petition stands

disposed off directing the Trial Court to pass a preliminary

decree in so far as suit properties are concerned and proceed to

try other issues that may arise pursuant to the order dated