Karnataka High Court
Ravi S/O Govindraddi Budihal vs Sri Tirakreddy S/O Yallareddy Budihal on 24 February, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 100035 of 2025
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 100035 OF 2025 (GM-CPC)
BETWEEN:
RAVI S/O. GOVINDRADDI BUDIHAL,
AGE: 56 YEARS, OCC: AGRICULTURE AND ADVOCATE,
RESIDENT OF SHISHWINHALLI,
TQ: NAVALAGUND, DISTRICT: DHARWAD-581209.
...PETITIONER
(BY SRI. D.L. LADKHAN, ADVOCATE)
AND:
1. SRI. TIRAKREDDY S/O. YALLAREDDY BUDHIHAL,
SINCE DECEASED HIS LEGAL REPRESENTATIVES
ALREADY ON RECORD AS PETITIONER NO.2 AND 3
2. SMT. KASTURIBAI W/O. TIRAKAREDDY BUDIHAL,
SINCE DECEASED HER LEGAL
REPRESENTATIVE ALREADY
ON RECORD AS PETITIONER NO.3.
ASHPAK
KASHIMSA
MALAGALADINNI
3. SMT. SHASHIKALA @ YALLAMMA
Location: HIGH
COURT OF
W/O. ASHOK PATIL,
KARNATAKA
DHARWAD
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
BENCH
R/O. C/O. ASHOK A. PATIL,
HOUSE OF ASHOK A. MATHAD,
WARD NO.5, ANANDNAGAR, MUDHOL,
DISTRICT: BAGALAKOT- 587313.
4. SMT. YAMUNAVVA W/O. GOVINDRADDI BUDHIHAL,
AGE: 76 YEARS, OCCUPATION: HOUSEHOLD WORK,
RESIDENT OF SHISHWINHALLI,
TQ: NAVALAGUND,
DISTRICT: DHARWAD-581209.
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5. RITIKA D/O. TIMMARADDI INAMATI,
AGE: MAJOR, OCCUPATION: STUDENT,
RESIDENT OF SHISHWINHALLI,
TQ: NAVALAGUND, DISTRICT: DHARWAD- 581209.
6. SILPA D/O. TIMMARADDI INAMATI,
AGE: MAJOR, OCCUPATION: STUDENT,
RESIDENT OF SHISHWINHALLI,
TQ: NAVALAGUND,
DISTRICT: DHARWAD- 581209.
7. SMT. SUMANGALA @ SUMA
W/O. KRISHNARADDI CHAPPARADAR,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF NEGALUR,
TQ & DIST: HAVERI- 581213.
8. SMT. SHASHIKALA
W/O. HANAMRADDI GANGARADDI,
AGE: 34 YEARS, OCCUPATION: HOUSEHOLD WORK,
RESIDENT OF YARGATTI,
TQ: SAUNDATTI, DISTRICT: BELGAUM-591129.
9. SRI. SRINIVAS S/O. GOVINDRADDI BUDIHAL,
AGE: 48 YEARS, OCCUPATION: AGRICULTURE,
RESIDENT OF SHISHWINHALLI,
TQ: NAVALAGUND, DISTRICT: DHARWAD- 581209.
10. SMT. PADMAVATI
W/O. HANAMANTGOUDA JEEWANGOUDAR,
AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF MAIDUR,
TQ: RANEBENNUR,
DISTRICT: HAVERI - 581115.
SINCE DECEASED HER LEGAL
REPRESENTATIVE ON RECORD AS
RESPONDENT NO.11 TO 15.
11. HANAMANTGOUDA
S/O. GOVINDAGOUDA JEEWANGOUDAR
AGE: 81 YEARS, OCC: AGRICULTURE,
R/O. MAIDUR, TQ: RANEBENNUR,
DISTRICT: HAVERI - 581115.
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12. RAJASHEKHAR GOUDA
S/O. HANAMANTGOUDA JEEWANGOUDAR,
AGE: 64 YEARS, OCC: AGRICULTURE,
RESIDENT OF MAIDUR, TQ: RANEBENNUR,
DISTRICT: HAVERI - 581115.
13. RAGUGOUDA
S/O. HANAMANTGOUDA JEEWANGOUDAR,
AGE: 64 YEARS, OCC: AGRICULTURE,
RESIDENT OF MAIDUR, TQ: RANEBENNUR,
DISTRICT: HAVERI - 581115.
14. SMT. GEETA W/O. LAXMARADDI SAWKAR,
AGE: 60 YEARS, OCC: HOUSEWIFE,
C/O. LAXMARADDI VENKARADDI SAWKAR,
MANJUNATH NAGAR, OPP- N.V.HOTEL,
TQ: RANEBENNUR, DISTRICT: HAVERI - 581115.
15. SMT. SHASHIKALA W/O. RAVI BUDIHAL,
AGE: 51 YEARS, OCC: HOUSEWIFE,
C/O. RAVI GOVINDRADDI BUDIHAL,
R/O. SHISHUVINHALLI, TQ: ANNIGERI,
DISTRICT: DHARWAD. 581209.
16. SUNIT S/O. HANAMARADDI KIRESUR,
AGE: 30 YEARS, OCCUPATION: NOT KNOWN,
R/O. SHISHUVINHALLI, TQ: NAVALAGUND,
DIST: DHARWAD-581209.
17. PRADEEP S/O. HANAMARADDI KIRESUR,
AGE: MAJOR, OCCUPATION: STUDENT,
RESIDENT OF SHISHUVINHALLI,
TQ: NAVALAGUND, DISTRICT: DHARWAD- 581209.
18. THE CHAIRMAN OF VPC
(GRAMA PANCHAYAT)
SHISHUVINAHALLI, TQ: NAVALAGUND,
DISTRICT: DHARWAD- 581209.
...RESPONDENTS
(BY SRI. N.P. VIVEKMEHTA, ADVOCATE FOR C/R3;
R4-R18 NOTICE DISPENSED WITH)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OR
ORDER OR DIRECTIONS SETTING ASIDE THE ORDER DATED 25-09-
2024, DISMISSING WITH COST OF RS.1,000/- ON I.A. NO.31 ON
APPLICATION FILED BY DEFENDANT NO.2/ PETITIONER HEREIN,
UNDER SECTION 151 OF C.P.C. IN FDP NO. 17/2013, VIDE
ANNEXURE-A; TO ISSUE WRIT OR ORDER OR DIRECTIONS SETTING
ASIDE THE ORDER DATED 27-11-2024 ON I.A. NO.32 DISMISSING
WITH COST APPLICATION FILED FOR REVIEWING ORDER DATED 25-
09-2024, FILED UNDER ORDER 47 R/W SEC.151 OF CPC, IN FDP
NO.17/2013, VIDE ANNEXURE-B; TO ISSUE WRIT OR ORDER OR
DIRECTIONS SETTING ASIDE THE ORDER ON I.A. NO.33 DATED 27-
11-2024 DISMISS APPLICATION FOR AMENDMENT OF FINAL DECREE
PETITION, FILED UNDER SECTION 151 OF CPC. BY PLAINTIFF NO.3
VIDE ANNEXURE-C TO THE WRIT PETITION.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 10.02.2025, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
CAV ORDER
1. The petitioner is before this Court seeking for the
following reliefs:
a) To issue writ or order or directions setting
aside the order dated 25-09-2024, dismissing
with cost of Rs.1,000/- on I.A. NO.31 on
application filed by Defendant No.2/ Petitioner
herein, under Section 151 of C.P.C. in FDP
No.17/2013, vide ANNEXURE-A;
b) To issue writ or order or directions setting
aside the order dated 27-11-2024 on I.A.
No.32 dismissing with cost application filed
for reviewing order dated 25-09-2024, filed
under Order 47 r/w Sec.151 of CPC, in FDP
No.17/2013, vide ANNEXURE-B;
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c) To issue writ or order or directions setting
aside the order on I.A. No.33 dated 27-11-
2024 dismiss application for amendment of
Final Decree Petition, filed under section 151
of CPC. by Plaintiff No.3 vide ANNEXURE-C to
the writ petition
.
2. The petitioner is aggrieved by;
2.1. The dismissal of I.A.No.31 filed by the
petitioner in FDP No.17/2013, vide order dated
25.9.2024. The said application under Section
151 of CPC was filed for dropping of the final
decree proceedings in view of the judgment
and decree passed in RFA No.4034/2013 and
other connected matters;
2.2. Order dated 27.11.2024 passed on I.A.No.32
filed under Order XLVII read with Section 151
of the Code of Civil Procedure for
reconsideration of the order passed on
I.A.No.31 dated 25.09.2024;
2.3. Order dated 27.11.2024 passed on I.A.No.33
allowing the application under Order VI Rule
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17 of the Code of Civil Procedure, permitting
the petitioner in the final decree proceedings
to amend the FDP.
3. The facts in brief are as under;
3.1. The plaintiff had filed a suit in O.S.
No.197/2001 for partition and separate
possession, which was decreed on 13.11.2012,
granting 1/3rd share of immovable property
by way of partition and separate possession by
metes and bounds.
3.2. The said judgment and decree was challenged
in RFA No.4023/2013, RFA No. 4160/2013,
and RFA No.10069/2014. The plaintiff had
also filed cross-objections in RFA CROB No.
100003/2016, all of which came to be
disposed of vide order dated 08-12-2022,
wherein the decree was modified.
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3.3. After the modification of the decree and
disposal of the aforesaid RFAs, the petitioner,
who was Defendant No.2, had filed I.A.No.31
under Section 151 of the Code of Civil
Procedure in the FDP proceedings, for
dropping of the final decree proceedings in
view of the judgment passed in the aforesaid
matters by the Division Bench of this Court.
3.4. Since the said application was dismissed,
I.A.No.32 was filed for the review of the said
order, on the ground that the mandate of the
judgment in the RFAs will have to be followed
by the Final Decree Court.
3.5. In the meanwhile, the plaintiff had filed
I.A.No.33 under Order VI, Rule 17 of CPC for
amendment of the final decree petition by
introducing certain properties.
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3.6. The petitioner contends that those properties
have been excluded by way of the judgment in
the RFAs and could not have been included. As
such, it is contended that the final decree
proceedings are required to be dropped and
the amendment order passed is required to be
set aside.
4. Shri D. L. Ladkhan, learned counsel for the
petitioner, would submit that the Final Decree Court
is bound by the judgment passed in the RFAs. It was
for the Final Decree Court to consider the judgment
in appeal rather than implement the judgment
passed by the Trial Court. If that were to be
considered, then the final decree proceedings were
required to be dropped, there being nothing more to
be done in the final decree proceedings.
5. Sri. N. P. Vivekmehta, learned counsel appearing for
the respondent No.3/petitioner in the final decree
proceedings would however contend that the
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properties which are sought to be added to the final
decree proceedings by way of an application under
Order VI Rule 17 of CPC is in furtherance of the
judgment passed in RFA No.4034/2013 and it is
those properties which have been added to the final
decree proceedings in terms of annexures to the
application under Order VI Rule 17 of CPC. The fact
that those properties are to be divided among the
parties would indicate that the final decree
proceedings would have to be continued and as such,
I.A.Nos.31 and 32 have been rightly dismissed and
I.A.No.33 for amendment has rightly been allowed
by the Trial Court.
6. Heard Sri. D. L. Ladkhan, learned counsel for the
petitioner, and Sri. N. P. Vivekmehta, learned
counsel for the respondent No.3. Perused the
papers.
7. The question that would arise for consideration in the
present matter is:
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"Whether the properties sought to be
brought on record by way of an
application under Order VI Rule 17 of
CPC in I.A.No.33, are in consonance
with the judgment of this Court in RFA
No.4034/2013?
8. In order to provide an opportunity to both the
petitioner and the respondents to make their
submission as regards the judgment in RFA
No.4034/2013 and its impact, both the petitioner and
respondents counsel were permitted to file their
respective memos detailing, in brief, the properties
which are available for partition as held in RFA
No.4034/2013. Sadly, the memos filed by both
counsel are self-serving and filed with an intention to
overreach the judgment in RFA No.4034/2013 and
are so filed contrary to the said judgment.
9. In view of the matter, those memos are required to
be rejected with a specific observation as regards the
conduct of the parties in filing such memos in a
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brazen manner to try and negate the judgment in
RFA No.4034/2013. Particularly, the conduct of
respondent No.3 is required to be deprecated,
inasmuch as, even after rejection of the claim of
respondent No.3, who was plaintiff No.3 and the
mother of plaintiff No.2 and wife of the deceased
plaintiff No.1, has sought to once again assert her
rights over the properties which had been negated in
the judgment in RFA No.4034/2013. In fact, the
amendment application, which had been filed by
plaintiff No.3 in I.A.No.33 in the FDP proceedings, is
also a complete abuse of the process of court
through misinterpretation of the judgment in RFA
No.4034/2013. The properties described in
Annexure-A to the said application are sought to be
included in the FDP proceedings with description of
the properties by referring to the judgment given in
a completely improper manner. It is not only the
plaintiff No.3 who can be blamed for the same, since
the said application is a well-drafted application
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interpreting the orders passed in RFA No.4034/2013
and is a deliberate attempt made by plaintiff No.3 to
abuse the process of the court.
10. It is for that purpose that, this Court is constrained
to refer to the judgment in RFA No.4034/2013 and
other connected matters, which would make clear
the abuse of process resorted to by plaintiff No.3.
10.1. At Paragraph 67, this Court has held that no
relief for setting aside the partition of the year
1954 and the mutation entries carried out
thereafter had been challenged and as such
held that the partition having taken effect in
the year 1954 and acted upon, there being a
severance, it is only the properties which are
allotted to plaintiff No.1 under the said
partition deed which would enure to his
benefit, and after him, to his wife and
daughter, that is plaintiffs No.2 and 3. This
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Court went on to deal with all the properties in
detail from para 68 onwards.
10.2. Para 68 deals with property in Block No. 164
and as such held that the said property was
purchased in the name of Seetawwa and
constituted her self-property in terms of
Section 14 of the Hindu Succession Act, and as
such, held that the said property cannot be
said to be a joint family property and was the
individual property of Seetawwa, which she
had dealt with by a Will bequeathing the same
to defendant No.8, who in turn sold it to
defendants No.9 and 10, and as such, held
that the plaintiffs were not entitled to said
property. In that background, including the
said property in Block No.164 in Schedule-A is
completely misconceived and a deliberate
misrepresentation made by plaintiff No.3.
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10.3. Insofar as property covered under Block
No.247/1 and 247/2 described in Sl.Nos.2 and
3 of Annexure-A, this Court has held that, the
property covered Block No.247/1 is owned
jointly by defendant No.2 and Plaintiff No.1.
Thus, it is from the half share of Plaintiff No.1
in the said properties that a claim could be
made by Plaintiffs No.2 and 3.
10.4. Insofar as property covered under Block
No.247/2 is concerned, the said property
having been gifted to a school by Plaintiff No.1
during his lifetime, this Court has categorically
held that the said property cannot be the
subject matter of partition.
10.5. Insofar as the property in Block No.248
described in Sl.No.4 of Annexure-A, this Court
has held that the said property having been
mutated in the name of plaintiff No.1, the
deceased Govindraddi, and plaintiff No.3, it is
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only as regards the share of plaintiff No.1 and
plaintiff No.3 that they can have a right. There
being no particular share prescribed in the
partition, plaintiff No.1, deceased Govindraddi
and plaintiff No.3 would have equal share of
1/3rd each. Thus, it is only 2/3rd share in Block
No.248 which would be available for partition.
10.6. As regards the property in Block No.255 at
Sl.No.5 is concerned, the same was subject
matter of the partition and fell to the share of
Govindraddi, as regards which, the plaintiffs
cannot have any right.
10.7. As regards item Nos.6 and 7, relating to Block
No.202/1 and 202/2, the properties having
been mutated in the name of Govindraddi and
Seetawwa, this Court held that the plaintiffs
cannot have any right in relation thereto.
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10.8. Similar is the finding of this Court in respect to
Block Nos.67, 201, 198/1 and 198/2 described
in Sl.Nos.8 to 11 of Annexure-A.
10.9. As regards Block No.84/1A, 84/2, 23/1 and
23/2, described at Sl.Nos.12 to 15 of
Annexure-A, those properties also standing in
the name of the defendants, this court has
held that the plaintiffs cannot have any right in
respect to the said properties.
10.10. As regards properties in Block No.880, 881,
882 and 875, described at Sl.Nos.16 to 19,
this Court in para 84 has held that the
mutation entries cannot be disturbed and the
plaintiffs will not have any right.
10.11. The Properties in Block No.164 is dealt with in
para 74, Block 247 at para No.76, Block 247/2
at para 78, Block 248 at para 79, Block 255 at
para 80, Block 202/1 and 202/2 at para 81,
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Blocks 67, 207, 198/1, 198/2 at para 82,
Blocks 84/1A, 842/2, 23/1 and 23/2 at para
83, Blocks 880, 881, 882, 872 at para 84.
10.12. Insofar as the house properties at panchayat
No.110, panchayat No.04, panchayat No.05
and the open sites in panchayat No.001,
panchayat No.222 and panchayat No.002,
described at Sl.No.22 and 25, this Court has
not interfered with the Panchayat resolutions
and as such held that the plaintiffs would not
be entitled to any share therein contrary to
the Panchayat resolution at para 85 of the
judgment.
10.13. Insofar as the properties which had been
allotted to Fakkiraddi under the partition deed
of 1954, a Will having been executed by him
and the Will not being disputed, it is only the
bequest made under the Will which would
have to be considered as regards the shares of
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the plaintiffs No.2 and 3, claiming under
plaintiff No.1, in whose favour certain
properties are bequeathed.
10.14. Insofar as the properties falling to the share of
Yallaraddi under the partition of 1954, on his
death, his properties were allotted to
Fakkiraddi were 202/1, 202/2, 880 and 875.
Only these properties being subject matter of
the Will, the bequest is required to be
considered in terms of the said Will as held in
para 87 of the judgment.
10.15. As regards the properties falling to the share
of Yallaraddi, under the partition deed of 1954,
Plaintiff No.1 Govindaraddi and defendant
No.8, succeeded to the said properties in
terms of Section 6 of the Hindu Succession
Act. The properties coming to the share of
Plaintiff No.1 having been dealt with during his
lifetime, those transactions were also not
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disturbed by this Court in the judgment in RFA
No.4034/2013 and it is only if any property
has not been dealt with by plaintiff No.1
during his lifetime as regards the properties of
Yallaraddi succeeded to by plaintiff No.1 that
the FDP Court would have to deal with.
10.16. Be that as it may, it is only 1/3rd of the
properties of Yallaraddi that plaintiff No.1
succeeded to and not the entire properties. It
is only after ascertaining these properties in
terms of the above, which come to the share
of plaintiffs No.2 and 3 that, as regards those
properties, an enquiry is to be held under
Order XX Rule 12 of the CPC to determine the
profits from those properties from the date of
the suit till the date of the actual delivery of
possession, in terms of para 98 and para (vii)
of the operative portion of the judgment.
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11. The above discussion would clearly and categorically
indicate the abuse by plaintiff No.3 of the process of
court as indicated above. Plaintiff No.3 by filing a so-
called innocuous application under Order VI Rule 17
of the CPC, which came to be numbered as
I.A.No.33, has sought to include all the properties.,
though by mentioning that the partition has to be
made in terms of the modified decree in judgment in
RFA No.4034/2013. Plaintiff No.3 has sought to
include all the properties which is completely
malafide.
12. Apart therefrom, in the schedule to the application,
there are several properties which have been
described which are categorically stated to be "not
suit properties". If the properties were not suit
properties, the question of including them in the FDP
proceedings would not at all arise, that too by way of
an amendment said to be made in furtherance of the
modified judgment and decree in RFA No.4034/2013.
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13. The FDP court, without considering these aspects, by
its order dated 27.11.2024 on I.A.No.33, has
permitted the petitioner to amend the petition with a
direction to both the parties to cooperate with the
Court for disposal. While allowing the said application
for amendment, the FDP Court has held that, if the
proposed amendment is not in consonance with the
modified decree, then the petitioner would certainly
not be entitled to any relief and this would be
considered at the time of disposal of the case on
merits, and has further gone on to hold that, if an
amendment would be fatal to the case of the
defendants, it cannot be allowed. Since it is not so,
sufficient grounds have been made out and allowed
the application.
14. The general rule applicable to amendments would
not apply to the amendment made in furtherance of
a judgment of a Court. It was the duty of the FDP
Court to consider the application for amendment in
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terms of the judgment in RFA No.4034/2013 and
only thereafter to consider the amendment, which
could be allowed and which would have to be
rejected. The FDP Court could not have postponed
the consideration of the amendment being in
consonance with the judgment in RFA No.4034/2013
to a later stage as that done by the FDP Court.
15. When any right in a property has been denied in a
suit, the said property cannot be included in an FDP
proceeding, requiring an enquiry, evidence,
appointment of the Commissioner and the like, as
regards to said property. It was therefore required
of the FDP Court to have considered I.A.No.33 by
referring to the judgment in RFA No.4034/2013 and
only allowed those amendments which were in
consonance with the judgment in RFA No.4034/2013
without postponing the same.
16. The FDP Court has apparently been completely
misled by plaintiff No.3 by contending that the
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amendment is innocuous one and only the rights as
per the modified decree in RFA No.4034/2013 would
have to be determined by the FDP Court.
17. In that view of the matter, I am of the considered
opinion that the order passed on I.A.No.33 filed
under Order VI Rule 17 of the Code of Civil
Procedure, dated 27.11.2024, does not stand muster
and is required to be set aside.
18. Insofar as the application filed by the petitioner
herein, who is respondent No.2 in the FDP
proceeding, contending that the proceedings have to
be dropped since the decree has been satisfied, it is
again an abuse of the process of court. A bald
allegation being made by defendant No.2 that the
decree is satisfied. when specific directions have
been issued in RFA No.4034/2013. is completely
misconceived and is also an abuse of the process of
court.
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19. In that view of the matter, I am of the considered
opinion that the rejection of the said application in
I.A.No.31, filed under Section 151 of CPC, for
dropping of the said proceedings and the order dated
27.11.2024 on I.A.No.32 filed for review of the order
dated 25.09.2024, have been rightly rejected by the
FDP Court. It is for the FDP Court to determine the
shares of the parties in terms of the judgment in RFA
No.4034/2013, by holding necessary enquiry.
20. In that view of the matter, I pass the following:
ORDER
i. The order dated 25.09.2024 on I.A.No.31
and order dated 27.11.2024 on I.A.No.32
at Annexures 'A' and 'B' to the writ petition
are not disturbed, and stand confirmed.
ii. The order dated 27.11.2024 in regard to
I.A.No.33 is set aside. The matter is
remitted for fresh consideration of the said
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application I.A.No.33 in terms of the above
observations and the judgment in RFA
No.4034/2013, as indicated above.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
gab
CT-MCK
