Karnataka High Court

Laxman vs Shrishail And Ors on 19 August, 2025

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                       CRP No. 200122 of 2023


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                                IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                             DATED THIS THE 19TH DAY OF AUGUST, 2025

                                              BEFORE

                   THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

                    CIVIL REVISION PETITION NO. 200122 OF 2023 (RES)

                   BETWEEN:

                   LAXMAN
                   S/O CHANNAPPA HADANUR,
                   AGED ABOUT 42 YEARS,
                   OCC: AGRICULTURE,
                   R/O: KHAAJAMEN DHARGA,
                   TQ: VIJAYAPURA,
                   DISTRICT VIJAYAPURA - 586 103.
                                                                 ...APPELLANT

                   (BY SRI AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
                      SRI GANESH SUBHASHCHANDRA KALBURGI, ADVOCATE)

Digitally signed   AND:
by RENUKA
Location: HIGH               SHRISHAIL                   AMENDED AS PER
COURT OF                     S/O SIDDAPPA BHAGAYT,        ORDER DATED
KARNATAKA                    SINCE DECEASED BY LRS.        16.06.2025.

                   1(a). VIJAYALAXMI
                         W/O LATE SHRISHAIL BHAGAYAT,
                         AGED ABOUT 45 YEARS,
                         OCC: STUDENT,

                   1(b). SANJAY
                         S/O LATE SHRISHAIL BHAGAYAT,
                         AGED ABOUT 18 YEARS,
                         OCC: STUDENT,
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                                     CRP No. 200122 of 2023


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1(c). SAMARTH
      S/O LATE SHRISHAIL BHAGAYAT,
      AGED ABOUT 12 YEARS, SINCE MINOR
      REPRESENTED BY HIS NATURAL MOTHER,
      I.E., RESPONDENT NO.1(A).

         ALL R/O: KHWAJA AMIN DARGA,
         JAIL ROAD, VIJAYAPURA.

         TIPPAVVA
         W/O SIDDAPPA BHAGAYAT,
         SINCE DECEASED BY HER LRS

2.       GOUDAPPA
         S/O DHAREPPA BIRADAR,
         AGED ABOUT 65 YEARS,
         OCC: AGRICULTURE,
         R/O: MADHABHAVI,
         TQ: VIJAYAPURA,
         TQ AND DIST: VIJAYAPUR - 586 103.

3.       GIRIJABAI
         W/O DAYANAND KALABILAGI,
         AGED ABOUT 51 YEARS,
         OCC: HOUSEHOLD WORK,
         R/O: MADHABHAVI,
         TQ: VIJAYAPURA,
         DISTRICT : VIJAYAPURA - 586 103.

4.       RENUKA
         W/O KALMESH TORAVI,
         AGED ABOUT 28 YEARS,
         OCC: HOUSEHOLD WORK,
         R/O: HAVINAL,
         TQ: INDI, DIST: VIJAYAPURA - 586 103.

5.       BHIMASHANKAR
         S/O GOUDAPPA BIRADAR,
         AGED ABOUT 31 YEARS,
         OCC: AGRICULTURE,
         R/O: MADHABHAVI,
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         TQ: VIJAYAPURA,
         DISTRICT : VIJAYAPURA - 586 103.

6.       SAVITRI
         W/O RAJU KALAWAD,
         AGED ABOUT 55 YEARS,
         OCC: HOUSEHOLD WORK,
         R/O: ATALATTI,
         TQ: VIJAYAPURA,
         DISTRICT: VIJAYAPURA - 586 103.

7.       VIJAYALXMI
         W/O LAXMAN ATANUR,
         AGED ABOUT 54 YEARS,
         OCC: HOUSEHOLD,
         R/O: KHAAJAMEEN DHARGA,
         TQ : VIJAYAPURA,
         DISTRICT : VIJAYAPURA - 586 103.

8.       INDIRABAI
         W/O KRISHNAPPA BAGALI,
         AGED ABOUT 58 YEARS,
         OCC: AGRICULTURE,
         R/O: JUMANAL,
         TQ: VIJAYAPURA,
         DISTRICT : VIJAYAPURA - 586 103.

9.       KALAVATI
         W/O KALLAPPA BIRADAR,
         AGED ABOUT 43 YEARS,
         OCC: AGRICULTURE,
         R/O: HALAGUNAKKI,
         TQ: VIJAYAPURA,
         DISTRICT : VIJAYAPURA - 586 103.
                                               ...RESPONDENTS

(BY SRI MAHANTESH PATIL, ADVOCATE FOR R1(A);
    SRI MANJUNATH GINNI, ADVOCATE FOR R9
    R1(B), R2, R3, R5, R7 AND R8 ARE SERVED;
    R1(C) IS MINOR REPRESENTED BY R1(A);
    NOTICE TO R4 IS DISPENSED WITH;
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    NOTICE TO R7 IS HELD SUFFICIENT)

     THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF THE CPC, PRAYING TO ALLOW THIS
REVISION PETITION, CALL FOR RECORDS AND SET ASIDE THE
ORDER DATED 19.07.2022 PASSED IN O.S.NO. 26/2016 ON
THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE AND CJM,
JUDGE VIJAYAPURA, THE CERTIFIED COPY OF WHICH IS AT
ANNEXURE-E AND TO PASS ANY OTHER APPROPRIATE ORDERS
AS MAY BE DEEMED FIT TO GRANT IN THE FACTS AND
CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE.

     THIS CIVIL REVISION PETITION, COMING ON FOR
DICTATING HEARING, THIS DAY, ORDER WAS MADE THEREIN
AS UNDER:

CORAM:    HON'BLE MR. JUSTICE SHIVASHANKAR
          AMARANNAVAR


                      ORAL ORDER

This Revision Petition is filed challenging the order

dated 19.07.2022 passed in O.S No.26/2016 by the I

Additional Senior Civil Judge and CJM, Vijayapura wherein

the application filed by the petitioner -defendant No.4

under Order VII Rule 11 of CPC came to be rejected.

2. Heard learned Senior Counsel for the petitioner

and learned counsels for respondent Nos.1 and 6.

3. Respondent No.1 -plaintiff has filed a suit in

O.S.No.26/2016 against petitioner and respondent Nos.2

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to 8. The said suit is filed seeking declaration that the

plaintiff -respondent No,1 herein is entitled to retain the

shares of defendant Nos.1 to 3 by virtue of pre -emptive

right. The prayer made in the plaint reads thus;

"a) Declare that the plaintiff is entitled to retain the shares of the defendants No 1 to 3 along with plaitniff's own share in suit Scheduled 'A' properties and issue consequential relief of injunction restraining the defendant No 4 from taking the possession of the suit properties to the extent of shares mentioned in the assignment Deed dated 23/12/2015, by virtue of pre-emptive right of plaintiff.

b) Permit the plaintiff to amend the plaint as and when necessary

c) Any other reliefs deems fit be passed in favour of the plaintiff

d) Award Cost of the suit."

4. Respondent No.1 -plaintiff's sisters i.e.,

Savithri and Vijaylaxmi have filed a suit for partition and

separate possession in O.S.No.79/2007 on the file of the

II Additional Senior Civil Judge, Vijayapura against the

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plaintiff and other nine persons. Other persons i.e.,

defendant Nos.1 to 3 have filed counter claim seeking

allotment of their shares. The said suit came to be

decreed. Respondent No.1 -plaintiff had filed RA

No.37/2014 and RA No.39/2014 and they were pending

before II Additional District and Sessions Judge,

Vijayapura challenging the judgment and decree passed in

O.S.No.79/2007. Both appeals came to be allowed

modifying shares of parties. The plaintiff preferred RSA

No.200090/2016 and RSA No.200091/2016 before this

Court challenging the judgment passed in RA Nos.37/2014

and 39/2014. Defendant Nos.1 to 3 have assigned their

shares declared in RA Nos.37/2014 and 39/2014 in favor

of defendant No.4 for sum of Rs.17,25,000/- on

23.12.2015 by registered Assignment Deed pertaining to

suit property. The defendant No.4 -petitioner herein had

filed FDP No.9/2016 for enforcing shares assigned by

defendant Nos.1 to 3 to him. The said Assignment Deed

has been executed during the pendency of RSA

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No.200090/2016. Respondent No.1 has sought relief of

pre-emption to retain shares of defendant Nos.1 to 3 who

have assigned their shares infavor of defendant No,4 who

is petitioner herein by Assignment Deed dated

23.12.2015. The said suit is filed on 16.12.2016. The

cause of action stated in the suit is date of Assignment

Deed executed by defendant Nos.1 to 3 in favor of

defendant No.4 dated 23.12.2015.

5. Even though the prayer made in the suit is not

happily worded, but relief claimed by respondent herein is

right of pre-emption in respect of shares assigned by

defendant Nos.1 to 3 infavor of defendant No.4.

6. Learned Senior Counsel for the petitioner would

contend that there is no cause of action for filing suit for

pre-emption. The pre-emption is governed under Section

22 of the Hindu Succession Act, 1956. The partition is

effected as shares are allotted to parties in RA

Nos.37/2014 and 39/2014. Therefore, there is no right of

pre-emption for respondent No.1 -plaintiff.

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Therefore, there is no cause of action for the suit. He

submits that respondent No.1 -plaintiff can file application

under Section 22 of the Hindu Succession Act claiming

right of pre-emption in the pending FDP No.9/2016.

Further he submitted that the said FDP No.9/2016 is

disposed of and EP No.262/2018 has been satisfied.

7. Learned counsel for respondent No.1 would

contend that in para No.10 of the plaint cause of action

has been specifically stated as the date of Assignment of

Deed. The suit is filed for pre-emption to retain shares of

defendant Nos.1 to 3 by respondent No.1. As on the date

of suit, FDP No.9/2016 was pending and shares of

defendant Nos.1 to 3 even though declared, they were not

demarcated by meets and bounds. Considering the said

aspect, the trial Court has rightly rejected the application

filed by the petitioner under Order VII Rule 11 of CPC.

8. Learned counsel for respondent No.6 would

contend that against the order passed in FDP No.9/2016,

legal representatives of defendant No.1 i.e., respondent

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No.6 herein has filed RA No.21/2019 and it has been

disposed of on 05.05.2020. Challenging the same, the

Second Appeal is filed in RSA No.200187/2020 and it is

pending before this Court. He submits that the pendency

of said RSA itself indicate that final decree is not yet

attained finality.

9. Having heard learned counsels, this Court has

perused the materials placed on record.

10. On perusal of the plaint, the prayer of the

plaintiff is right of pre-emption to retain shares of

defendant Nos.1 to 3 which are assigned to defendant

No.4. The cause of action stated in the plaint is execution

of Assignment deed dated 23.12.2015. It is a registered

deed. RSA No.200090/2016 was pending as on the date of

Deed of Assignment executed by defendant Nos.1 to 3 in

favor of defendant No.4, the preliminary decree has not

attained finality. The present suit is filed on 16.12.2016

within one year from the date of Deed of

Assignment dated 23.12.2015. The cause of action for

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enforcing right to pre-emption arises on the date of Deed

of Assignment dated 23.12.2015. Article 97 of the

Limitation Act reads thus;

"Article To enforce a One When the purchaser takes 97 right of pre- year under the sale sought to be emption impeached, physical whether the possession of the whole or right is part of the property sold, or, founded on where the subject-matter of law or general the sale does not admit of usage or on physical possession of the special whole or part of the property, contract. when the instrument of sale is registered."

On perusal of 3rd column of Article 97, it is clear that to

enforce right of pre-emption, the period of limitation is one

year from the registration of an instrument of sale.

11. The revision petitioner -defendant No.4 was not

put in possession of shares assigned to him by defendant

Nos.1 to 3 and therefore, he had filed FDP No.9/2016

seeking possession of shares assigned to him under the

Deed of Assignment dated 23.12.2015. Considering the

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same, the cause of action for the plaintiff who is