Karnataka High Court
Peeru S/O Buddoji Kormaddi vs Smt. Reshma W/O Hasan Belgaumkar on 31 May, 2024
-1-
NC: 2024:KHC-D:7278
WP No. 110970 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 110970 OF 2017 (GM-CPC)
BETWEEN:
PEERU S/O. BUDDOJI KORMADDI,
SINCE DECEASED BY HIS L.RS
1. SMT. KESARBAI W/O. PEERU KORMADDI,
AGED ABOUT 69 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GOULI GALLI, MALAMADDI,
DHARWAD, TQ & DIST: DHARWAD.
2. BIBI W/O. CHATTU GADAGWALE,
AGED ABOUT 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GANESH NAGAR, HALIYAL ROAD,
DHARWAD, TQ & DIST: DHARWAD.
3. RAJAN S/O. PEERU KORMADDI,
AGED ABOUT 48 YEARS,
OCC: AGRICULTURE,
YASHAVANT
NARAYANKAR R/O. GOULI GALLI, MALAMADDI,
DHARWAD, TQ & DIST: DHARWAD.
Digitally signed by
YASHAVANT
NARAYANKAR
Location: HIGH
COURT OF
KARNATAKA,
DHARWAD BENCH
4. ANNU S/O. PEERU KORMADDI,
AGED ABOUT 46 YEARS,
OCC: AGRICULTURE,
R/O. GOULI GALLI,
MALAMADDI, DHARWAD,
TQ & DIST: DHARWAD.
5. RANI W/O. RAMESH GOULI,
ABED ABOUT 44 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GOULI GALLI,
-2-
NC: 2024:KHC-D:7278
WP No. 110970 of 2017
MALAMADDI, DHARWAD,
TQ & DIST: DHARWAD.
6. SMT. ANITHA W/O. MAMYA DHARWAD,
AGED ABOUT 42 YEARS,
OCC: HOUSEHOLD WORK,
R/O L.S.TANK, MANJUNATHPUR,
DHARWAD, TQ & DIST: DHARWAD.
7. SMT. SUNITHA W/O. PRAKASH GOULI,
AGED ABOUT 40 YEARS,
OCC:HOUSEHOLD WORK,
R/O. GOULI GALLI,
MALAMADDI, DHARWAD,
TQ & DIST: DHARWAD.
8. SRI. MANOJ S/O. PEERU KORMADDI,
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE,
R/O. GOULI GALLI,
MALAMADDI, DHARWAD,
TQ & DIST: DHARWAD.
...PETITIONERS
(BY SRI. G.I. GACHCHINAMATH, ADVOCATE)
AND:
1. SMT. RESHMA W/O. HASAN BELGAUMKAR,
AGED ABOUT 33 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GOULI GALLI,
MALAMADDI, DHARWAD,
TQ & DIST: DHARWAD.
2. SMT. SHAILA W/O. RAJU HANDEWALE,
AGED ABOUT 32 YEARS,
OCC: HOUSEHOLD WORK,
R/O. BHAVANI NAGAR,
BELAGAVI, TQ & DIST: BELAGAVI.
-3-
NC: 2024:KHC-D:7278
WP No. 110970 of 2017
3. SMT. JAYASHREE W/O. BABU VAREWALE,
AGED ABOUT 57 YEARS,
OCC: HOUSE WIFE,
R/O. BHAVANI NAGAR,
BELAGAVI, TQ & DIST: BELAGAVI.
4. BUDDOJI S/O. HASAN KORMADDI,
AGED ABOUT 51 YEARS,
OCC: BUSINESS,
R/O. GOULI GALLI,
MALAMADDI, DHARWAD,
TQ & DIST: DHARWAD.
5. RAJU S/O. HASAN KORMADDI,
SINCE DECEASED BY HIS LR'S.
5(A) SMT. LAXMI
W/O. RAJU KORMADDI,
AGE: 40 YEARS,
OCC: HOUSEHOLD WORK,
5(B) SMT. ROHINI
W/O. RAVI DANDEVALE,
AGE: 25 YEARS,
OCC: AGRICULTURE,
5(C) SMT. MANISHA
W/O. PRATAP DANDEVALE,
AGE: 23 YEARS,
OCC: HOUSEHOLD WORK,
5(D) SMT. SANAM
D/O. RAJU KORMADDI,
AGE: 21 YEARS,
OCC: HOUSEHOLD WORK,
5(E) SMT. AMRITA
D/O. RAJU KORMADDI,
AGE: 19 YEARS, OCC: STUDENT,
-4-
NC: 2024:KHC-D:7278
WP No. 110970 of 2017
5(F) SMT. DARSHAN
S/O. RAJU KORMADDI,
AGE: 17 YEARS, OCC: STUDENT,
ALL ARE R/O. GOULI GALLI,
MALAMADDI, DHARWAD,
TQ: HUBLI, DIST: DHARWAD.
6. SMT. RADHA W/O. KASHIM SOUDEWALE,
AGED ABOUT 36 YEARS,
OCC: HOUSEHOLD WORK,
R/O. DADDI KAMALAPUR,
TQ & DIST: DHARWAD.
7. SMT. SHARADA W/O. JANGALI KHANUWALE,
AGED ABOUT 35 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GOKAK, TQ: GOKAK,
DIST: BELAGAVI,
NOW R/O. DADDI KAMALAPUR,
TQ & DIST: DHARWAD.
8. SMT. RANI W/O. PEERU MADEWALE,
AGED ABOUT 32 YEARS,
OCC: HOUSEHOLD WORK,
R/O. LAXMISINGANAKERI,
DHARWAD, TQ & DIST: DHARWAD.
9. SMT. SUREKHA W/O. BABU GHARWALE,
AGED ABOUT 30 YEARS,
OCC: HOUSEHOLD WORK,
R/O: DADDI KAMALAPUR,
TQ & DIST: DHARWAD.
10. SMT. HEERA W/O. BHARAT GHARWALE,
AGED ABOUT 28 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GANESH NAGAR, DHARWAD,
DIST: DHARWAD.
-5-
NC: 2024:KHC-D:7278
WP No. 110970 of 2017
11. SMT. LAXMI W/O. KHANU KORMADDI,
AGED ABOUT 71 YEARS,
OCC: HOUSEHOLD WORK,
R/O: DADDI KAMALAPUR,
TQ & DIST: DHARWAD.
12. JUMMA S/O. KHANU KORMADDI,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE,
R/O: DADDI KAMALAPUR,
TQ & DIST: DHARWAD.
13. ANNU S/O. KHANU KORMADDI,
AGED ABOUT 43 YEARS,
OCC: AGRICULTURE,
R/O: DADDI KAMALAPUR,
TQ & DIST: DHARWAD.
14. MUNNA S/O. KHANU KORMADDI,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE,
R/O: DADDI KAMALAPUR,
TQ & DIST: DHARWAD.
15. KASHINATH S/O. KHANU KORMADDI,
AGED ABOUT 41 YEARS,
OCC: AGRICULTURE,
R/O: DADDI KAMALAPUR,
TQ & DIST: DHARWAD.
16. RAJAN S/O. KHANU KORMADDI,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURE,
R/O: DADDI KAMALAPUR,
TQ & DIST: DHARWAD.
17. HASAN S/O. KHANU KORMADDI,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURE,
R/O: DADDI KAMALAPUR,
-6-
NC: 2024:KHC-D:7278
WP No. 110970 of 2017
TQ & DIST: DHARWAD.
18. BUDDOJI S/O. KHANU KORMADDI,
AGED ABOUT 35 YEARS,
OCC: AGRICULTURE,
R/O: DADDI KAMALAPUR,
TQ & DIST: DHARWAD.
19. SMT. JAMUNABAI W/O. KHANU KORMADDI,
AGED ABOUT 35 YEARS,
OCC: HOUSEHOLD WORK,
R/O: DADDI KAMALAPUR,
TQ & DIST: DHARWAD.
20. SMT. KESAR W/O. BABU KORMADDI,
AGED ABOUT 66 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOULI GALLI, MALAMADDI,
TQ & DIST: DHARWAD.
21. DHANARAJ S/O. BABU KORMADDI,
AGED ABOUT 46 YEARS,
OCC: AGRICULTURE,
R/O: GOULI GALLI, MALAMADDI,
TQ & DIST: DHARWAD.
22. PRAKASH S/O. BABU KORMADDI,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE,
R/O: GOULI GALLI, MALAMADDI,
TQ & DIST: DHARWAD.
23. GOPAL S/O. BABU KORMADDI,
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE,
R/O: GOULI GALLI, MALAMADDI,
TQ & DIST: DHARWAD.
24. SMT. RAKHI W/O. MOHAN BHAVANI,
AGED ABOUT 36 YEARS,
-7-
NC: 2024:KHC-D:7278
WP No. 110970 of 2017
OCC: HOUSEHOLD WORK,
R/O: GOULI GALLI, MALAMADDI,
TQ & DIST: DHARWAD.
25. SMT. ARATI W/O. RAJESH GOULI,
AGED ABOUT 32 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOULI GALLI, MALAMADDI,
TQ & DIST: DHARWAD.
26. VIJAYA S/O. BABU KORMADDI,
AGED ABOUT 28 YEARS,
OCC: AGRICULTURE,
R/O: GOULI GALLI, MALAMADDI,
TQ & DIST: DHARWAD.
27. SHYAM S/O. PAPU KORMADDI,
AGED ABOUT 40 YEARS,
OCC: AGRICULTURE,
R/O: GOULI GALLI, MALAMADDI,
TQ & DIST: DHARWAD.
28. SUNDAR S/O. PAPU KORMADDI,
AGED ABOUT 37 YEARS,
OCC: AGRICULTURE,
R/O: GOULI GALLI, MALAMADDI,
TQ & DIST: DHARWAD.
29. SANTOSH S/O. PAPU KORMADDI
SINCE DEAD BY HIS LR.S
29(A) SMT.GANGA W/O. SANTOSH KORMADDI,
AGED ABOUT 33 YEARS,
OCC: HOUSEHOLD WORIK,
R/O: GOULIGALLI, MALAMADDI,
DHARWAD.
29(B). KUMARI SANJANA D/O. SANTOSH KORMADDI,
AGED ABOUT 11 YEARS,
-8-
NC: 2024:KHC-D:7278
WP No. 110970 of 2017
29(C). KUMAR SUMIT S/O. SANTOSH KORMADDI,
AGED ABOUT 9 YEARS,
29(D). KUMARI SANIYA
S/O. SANTOSH KORMADDI,
AGED ABOUT 7 YEARS,
SINCE MINORS REPRESENTATED BY
THEIR MINOR GUARDIAN
SMT. GANGA W/O. SANTOSH KORMADDI,
AGED ABOUT 33 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GOULI GALLI, MALAMADDI,
DHARWAD.
RESPONDENTS
(BY SRI. S.R. HEGDE, ADV. FOR C/R4 ALSO FOR R2;
(VAKALAT NOT FILED IN R/O R1)
R1-HELD SUFFICIENT; R3-SERVED;
SRI. S.R. HEGDE, SRI. S.S. HEGDE &
SRI. P.K. SANNINGAMMANAVAR, ADVOCATES FOR R5(A-F);
R6, R7, R8, R9, R10 ARE SERVED;
R11-R28 & R29(A-D) NOTICE DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED:18-06-2016 MADE IN O.S.NO.94/2011
ORDER ON I.A.NO.6 PASSED BY THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CJM, DHARWAD PRODUCED AS ANNEXURE-E BY ISSUE
OF WRIT OF CERTIORARI OR ANY OTHER SUITABLE WRIT OR ORDER
OR DIRECTIONS AND FURTHER REJECT I.A.NO.6 AND ETC.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
-9-
NC: 2024:KHC-D:7278
WP No. 110970 of 2017
ORDER
1. Captioned petition is filed by the defendants 17(a) to
17(h) assailing the order passed by the learned Judge on
an application filed Under Order VI Rule 17 read with
section 151 of the Code of Civil Procedure, 1908 (for
short "CPC") seeking amendment of plaint and by way of
proposed amendment leave is sought to insert one
additional property bearing Block No.5/1, measuring 17
Acres and relief of declaration to declare that the said
inserted property at schedule Sl.No.7 is the self acquired
property of plaintiffs' father.
2. The said application is resisted by the present defendants
by filing objections. In the objections, the defendants
claimed that the plaintiff's claim over the property bearing
Block No.5/1, measuring 17 Acres is dealt with by the
Court in O.S.No.85/2003.
3. In O.S.No.85/2003, the Trial court held that the said
property is not the self-acquired property of plaintiffs'
father, but it is an ancestral property. The said finding is
- 10 -
NC: 2024:KHC-D:7278
confirmed by the Appellate Court in R.A.No.179/2010 C/w
R.A. No.95/2016.
4. The learned Judge, ignoring the judgment rendered in
respect of Block No.5/1, has strangely proceeded to allow
the application for amendment under the impugned order
on the premises that by merely allowing the proposed
amendment, does not amount to proof of plaintiffs' case
insofar as property bearing Block No.5/1.
5. Paragraph 8 of the impugned order would be relevant and
the same is extracted, which reads as under:
"8. It is also the opposition of the defendants that
these plaintiffs in the guise of filing the partition
suit are in the process of adding self acquired
properties of different defendants which is
opposed to the law. Having gone through the
objections of these defendants virtually it is
additional written statement filed to the plaint.
Merely because the plaintiffs are permitted to
amend the plaint by incorporating the proposed
amendment it does not go to show that the
plaintiffs have proved their case. Equally
defendants also and should bear in mind that they
will also get reasonable opportunity to meet the
additional pleadings of the plaintiffs. According to
me by allowing this application by incorporating
the proposed amendment definitely it will not
change the nature of the suit and will also not
neutralize the defence of the defendants. In order
to avoid multiplicity of proceedings this application
in all fairness requires to be allowed. But so far as
the late moving of this application is concerned
plaintiffs will have to pay reasonable terms to the
- 11 -
NC: 2024:KHC-D:7278
defendants. Accordingly, I have answered this
point in the 'affirmative' and proceed to pass the
following:
ORDER
The application filed by the plaintiffs u/o.6
Rule 17 R/w sec. 151 of CPC dtd:21.1.2015 is
hereby allowed on payment of cost of Rs.500/-."
6. The plaintiffs have sought amendment seeking relief of
declaration of the property bearing Block No.5/1 as self-
acquired property by placing reliance on the observation
made by the Appellate Court in R.A.179/2010 C/w
R.A.No.95/2016. Paragraph 38 to 48 would be relevant
and same is culled out, which reads as under:
"35. However, in order to quell the apprehension of
the Appellant this Court deems it fit to observe that
the Respondents having taken the plea that the suit
property involved in this case is the joint family
property and it was put to common hotch potch and
therefore, it is to be treated as the joint family
property and the trial court having accepted such
plea in the impugned judgment and the Respondents
having been the beneficiaries under the impugned
judgment, the Appellant herein getting his right
adjudicated in OS No. 94/2011 cannot be objected
to by the Respondents on the ground that the suit of
the Plaintiff has been dismissed and confirmed by
this Court.
36. In other words framing of the suit by the
Appellant in the Court below and suffering the order
which is being confirmed by this Court in this appeal,
should not affect the right of the Plaintiff/Appellant
herein in getting his right, title and interest
adjudicated in the suit property involved in OS No.
94/2011.
- 12 -
NC: 2024:KHC-D:7278
37. It is settled position of law that the legal
requirement seeking an order of declaration is
different from right to seek partition in the property.
Under these circumstances this Court does not find
any good reasons whatsoever to interfere with the
judgment of the court below.
38. So far as the cross appeal filed by the original
Defendant No. 3 is concerned, as discussed above,
even though the original Plaintiff Hasan has settled
portion of the property to the extent of 3 acres and
29 guntas in favour of Defendant No. 3, the same
has not been recognized by the trial court in the
impugned judgment as a valid transfer. In other
words, the trial Court having held that the suit
property was the joint family property and it was put
to common hotch potch, the settlement if any made
by the original Plaintiff in favour of Defendant No. 3,
was not recognized as a valid transfer in the absence
of the entire property being partitioned by metes
and bounds between the members of the family. The
Defendant No. 3 did not place any cogent material
before the trial Court to substantiate the contention
that the original Plaintiff Hasan had settled 3 acres
and 29 gutnas of land in favour of Defendant No. 3.
39. More over the Defendant No. 3 is also a party in
the pending suit OS No. 94/2011. The trial court
having categorically held that the suit property is
also one of the joint family properties, the right, title
and interest of the Appellant herein as well as other
members of the family including the Defendant No.
3/Appellant in cross appeal, is also entitled to get his
right, title and interest adjudicated in the pending
suit OS No. 94/2011. During the pendency of this
appeal the Defendant No. 3 having died, his legal
heirs have been arraigned as parties to the
proceedings. They are at liberty to have their rights
adjudicated which was allotable to the Defendant
No. 3 in the pending suit OS No. 94/2011. If such
liberty is reserved for them, no hardship or prejudice
would be caused to the Appellant in the cross appeal
either. The analogy that has been drawn above, in
so far as the Appellant in R.A. No. 179/2010 would
equally applicable to the legal heirs of deceased
Defendant No. 3 who are the Appellants in Cross
- 13 -
NC: 2024:KHC-D:7278
appeal. Under these circumstances this Court does
not find any good grounds either to allow the main
appeal in RA No. 179/2010 or the Cross appeal in
No. 95/2016. For the foregoing reasons, point Nos. 1
to 3 are answered in the negative.
40. Point No. 4: In view of the findings on point
Nos.1 to 3 above, the following order is passed."
7. Based on the observations made by the Appellate Court,
which is culled out supra, the plaintiffs have filed an
amendment application seeking amendment. This Court
deems it fit to cull out the relevant portion of the
amendment, which reads as under:
"2. After para No.5 the following words are to be
inserted as under:
"The suit schedule serial No.7 agricultural
property is purchased by the father of the plaintiffs
late Hasan Koramaddi out of his self earned income,
however the defendants have taken up the
contention that it is the joint family property
purchased out of the joint family nucleus in
O.S.No.85/2003 on the file of the II Additional Senior
Civil Judge, Dharwad. Against which two appeals
have been filed in R.A.No.179/2010 and
R.A.No.95/2016 filed by the plaintiffs and defendants
respectively in that suit. After hearing the appeal the
Hon'ble appellate court has dismissed both the
appeals with the observations that "the judgment of
the said appeals shall not prejudice the appellant
plaintiffs to in getting his right, title and interest
adjudicated in the present suit", as such the said suit
property is also included in this suit.
3.In prayer column i.e. para No.11 (a) after the word
1/4th share "except suit schedule 'A' serial No.7
property" is to be inserted.
- 14 -
NC: 2024:KHC-D:7278
4. After para No.11 (a) a separate prayer para 11
(aa) is to be inserted as under:
(aa) It be declared that the plaintiffs are the absolute
owners in possession of schedule 'A' serial No.7
property."
8. On meticulous examination of the findings recorded in
regard to nature of the property bearing Block No.5/1 in
the earlier round of litigation, this Court needs to consider
the impugned order under challenge permitting the
plaintiffs to again seek relief of declaration to declare that
Block No.5/1 is self-acquired property of the plaintiffs'
father. The Appellate Court, while concurring with the
judgment rendered in earlier suit filed by plaintiffs in
O.S.85/2003, reserved liberty to the plaintiffs to add
Block No.5/1 and seek appropriate relief. This liberty was
reserved to the present plaintiffs in the background of a
finding of fact recorded by both the Courts that Block
No.5/1 is an ancestral property and not a self-acquired
property of plaintiffs' father. In the suit bearing
O.S.No.94/2011, Block No.5/1 is not the subject matter.
Therefore, in terms of observations made by the
Appellate Court, the plaintiffs could have inserted Block
No.5/1 to seek partition in the said property, which is
- 15 -
NC: 2024:KHC-D:7278
held to be an ancestral property in earlier suit bearing
O.S.No.85/2003.
9. On reading the proposed amendment, this Court is of the
view that the proposed relief of declaration sought by the
plaintiffs is squarely hit by the principle of res-judicata
under Section 11 of CPC. The proposed amendment
clearly lacks bonafides and by way of proposed
amendment, plaintiffs now again intend to re-litigate and
assert that Block No.5/1 is self-acquired property of their
father. When there is a concurrent finding by two Courts
that Block No.5/1 is ancestral property of plaintiffs and
defendants, plaintiffs ought to have sought for insertion
of Block No.5/1 to claim their legitimate share and not to
again re-litigate and assert that Block No.5/1 is a self-
acquired property of their father. The decree rendered in
O.S. No.85/2003 is confirmed by the Appellate Court in
R.A.No.179/2010 c/w R.A.No.95/2016. If Block No.5/1 is
held to be ancestral property by two Courts and plaintiffs
have not chosen to question the concurrent decrees, the
proposed amendment, seeking inclusion of Block No.5/1
to enable plaintiffs to seek a relief of declaration that they
- 16 -
NC: 2024:KHC-D:7278
are the absolute owners, is not only misconceived, but
the same amounts to abuse of process of law. The
learned Judge has virtually misread the proposed
pleadings, and has also not taken cognizance of the
judgment rendered in the earlier round of litigation.
10. The order under challenge suffers from serious infirmities
and also suffers from perversity. The proposed
amendment not only seriously prejudice the present
petitioners' right, but petitioners will be forced to undergo
a long ordeal of a second round of litigation when the lis
is given quietus by two Courts by recording a categorical
finding that Block No.5/1 is an ancestral property and is
available for partition. Therefore, the order under
challenge is not sustainable.
11. For the foregoing reasons, this court passes the following:
ORDER
i) The writ petition is allowed.
ii) The impugned order dated 18.06.216 passed
on an application filed under Order VI Rule 17
read with Section 151 of CPC, is hereby
quashed by imposing a cost of Rs.10,000/- on
- 17 -
NC: 2024:KHC-D:7278
the plaintiffs, payable to the defendants, to be
deposited on the next date of here.
iii) It is made clear that plaintiffs can proceed with
the suit only after deposit of Rs.10,000/-.
iv) In view of disposal of the petition, pending
interlocutory applications, if any, do not survive
for consideration and are disposed of
accordingly.
Sd/-
JUDGE
