Karnataka High Court
Shankaragouda And Anr vs Ningamma And Ors on 8 January, 2025
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WP No. 200163 of 2021
C/W WP No. 202191 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.200163 OF 2021 (GM-CPC)
C/W
WRIT PETITION NO.202191 OF 2021(GM-CPC)
IN W.P.NO.200163/2021:
BETWEEN:
1. SHANKARAGOUDA
S/O GURANNAGOUDA PATIL,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O SOMANAL (SHARANA-SOMANAL),
TQ. B. BAGEWADI, DIST. VIJAYAPUR
2. AYYANAGOUDA
S/O GURANNAGOUDA PATIL,
Digitally signed AGE: 48 YEARS, OCC: AGRICULTURE,
by SACHIN
R/O SOMANAL (SHARANA-SOMANAL)
Location: High
Court Of TQ.B. BAGEWADI DIST. VIJAYAPUR.
Karnataka
...PETITIONERS
(BY SRI. NARENDRA M. REDDY, ADVOCATE)
AND:
1. NINGAMMA W/O DUNDAPPA BIRADAR @ PATIL,
SINCE DECEASED BY LRS. (AS RESPONDENT NO.2
TO 4 ARE TREATED AS LR'S OF DECEASED
RESPONDENT NO.1)
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WP No. 200163 of 2021
C/W WP No. 202191 of 2021
2. BASALINGAPPA
S/O DUNDAPPA BIRADAR
@ PATIL, AGE: 52 YEARS, OCC: COOLIE,
R/O SAVANAHALLI, TQ. AND DIST. VIJAYAPUR-
586101.
3. SAHEBGOUDA S/O DUNDAPPA BIRADAR
@ PATIL
AGE: 37 YEARS, OCC: COOLIE,
R/O SAVANAHALLI,
TQ. AND DIST. VIJAYAPUR-586101.
4. GANGADHAR S/O DUNDAPPA BIRADAR @ PATIL,
AGE: 28 YEARS, OCC: COOLIE,
R/O SAVANAHALLI, TQ. AND DIST. VIJAYAPUR-
586101.
5. RAVAJAPPA S/O KASHIPATI PATTAR,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O SOMANAL (SHARANA-SOMANAL)
TQ.B.BAGEWADI, DIST. VIJAYAPUR-586101.
6. BALASAHEBGOUDA S/O SAHEBGOUDA PATIL
@ BIRADAR, AGE: 60 YEARS OCC: AGRICULTURE,
R/O SOMANAL (SHARANA-SOMANAL)
TQ. B.BAGEWADI, DIST. VIJAYAPUR-586101.
7. SHANKARGOUDA
S/O SAHEBGOUDA PATIL
AGE: 63 YEARS, OCC: AGRICULTURE.
R/O SOMANAL (SHARANA-SOMANAL)
TQ. B.BAGEWADI DIST. VIJAYAPUR-586101.
8. SIDDANAGOUDA
S/O RUDRAGOUDA PATIL,
AGE: 50 YEARS, OCC: AGRICULTURE.
R/O SOMANAL (SHARANA-SOMANAL)
TQ.B.BAGEWADI DIST. VIJAYAPUR-586101.
9. RUDRAGOUDA
S/O GURANNAGOUDA BIRADAR,
AGE: 75 YEARS, OCC: AGRICULTURE.
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WP No. 200163 of 2021
C/W WP No. 202191 of 2021
R/O SOMANAL (SHARANA-SOMANAL)
TQ. B.BAGEWADI DIST. VIJAYAPUR-586101
10. SIDRAMAPPA
S/O SIDNINGAPPA BIRADAR,
AGE: 80 YEARS, OCC: AGRICULTURE.
R/O SOMANAL (SHARANA-SOMANAL)
TQ. B.BAGEWADI DIST. VIJAYAPUR-586101.
...RESPONDENTS
(BY SRI. VINAYAK APTE, ADVOCATE FOR RESPONDENT NOS.2
TO 4;
SRI. D. P. AMBEKAR, ADVOCATE FOR RESPONDENT NO.5;
RESPONDENT NOS.6 TO 10 ARE SERVED;
VIDE ORDER DATED 10.04.2023, RESPONDENT NOS.2 TO 4
ARE TREATED AS LEGAL REPRESENTATIVES OF THE DECEASED
RESPONDENT No.1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI THEREBY QUASHING THE
IMPUGNED ORDER VIDE ANNEXURE-F DATED 07.11.2020 ON
I.A.NO.6 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT
B.BAGEWADI IN O.S.NO.112/2015, IN THE INTEREST OF
JUSTICE AND EQUITY. II) ISSUE A WRIT IN THE NATURE OF
MANDAMUS THEREBY ALLOWING I.A.NO.VI FILED BY THE
PETITIONERS IN O.S.NO.112/2015 TO AMEND THE WRITTEN
STATEMENT.
IN W.P.NO.202191 OF 2021:
BETWEEN:
1. BALASAHEBGOUDA
S/O SAHEBGOUDA PATIL @ BIRADAR
AGE. 61 YEARS, OCC. AGRICULTURE,
R/O. SOMANAL (SHARANA-SOMANAL),
TQ. B.BAGEWADI, DIST. VIJAYAPURA-586101
2. SHANKARGOUDA S/O SAHEBGOUDA PATIL
AGE. 64 YEARS, OCC. AGRICULTURE,
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WP No. 200163 of 2021
C/W WP No. 202191 of 2021
R/O. SOMANAL (SHARANA-SOMANAL),
TQ. B.BAGEWADI, DIST. VIJAYAPURA-586101.
3. SIDDANAGOUDA S/O RUDRAGOUDA PATIL
AGE. 51 YEARS, OCC. AGRICULTURE,
R/O. SOMANAL (SHARANA-SOMANAL),
TQ. B.BAGEWADI, DIST. VIJAYAPURA-586101.
4. SIDRAMAPPA S/O SIDNINGAPPA BIRADAR
AGE. 81 YEARS, OCC. AGRICULTURE,
R/O. SOMANAL (SHARANA-SOMANAL),
TQ. B.BAGEWADI, DIST. VIJAYAPURA-586101.
...PETITIONERS
(BY SRI. NARENDRA M. REDDY, ADVOCATE)
AND:
1. NINGAMMA W/O DUNDAPPA BIRADAR @ PATIL
RESPONDENT R-1 HAS EXPIRED RESPONDENT NOS.
2 TO4 ARE TREATED AS LR'S RESPONDENT NO.1
2. BASALINGAPPA S/O DUNDAPPA BIRADAR @ PATIL,
AGE: 53 YEARS, OCC: COOLIE,
R/O SAVANAHALLI,
TQ. & DIST. VIJAYAPUR. 586106
3. SAHEBGOUDA S/O DUNDAPPA BIRADAR @PATIL,
AGE: 38 YEARS, OCC: COOLIE,
R/O SAVANAHALLI,
TQ. & DIST. VIJAYAPUR. 586106
4. GANGADHAR S/O DUNDAPPA BIRADAR @PATIL,
AGE: 34 YEARS, OCC: COOLIE,
R/O SAVANAHALLI, TQ. & DIST. VIJAYAPUR.
5. RAVAJAPPA S/O KASHIPATI PATTAR,
AGE: 34 YEARS, OCC: AGRICULTURE
R/O SOMANAL (SHARANA-SOMANAL),
TQ. B.BAGEWADI, DIST. VIJAYAPUR. -586106
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WP No. 200163 of 2021
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6. SHANKARAGOUDA S/O GURANNAGOUDA PATIL,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O SOMANAL (SHARANA-SOMANAL),
TQ. B.BAGEWADI, DIST. VIJAYAPUR-586106.
7. AYYANAGOUDA S/O GURANNAGOUDA PATIL,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O SOMANAL (SHARANA-SOMANAL),
TQ. B.BAGEWADI, DIST. VIJAYAPUR-586106
8. RUDRAGOUDA S/O GURANNAGOUDA BIRADAR,
AGE: 76 YEARS, OCC: AGRICULTURE,
R/O SOMANAL (SHARANA-SOMANAL),
TQ. B.BAGEWADI, DIST. VIJAYAPUR-586106
...RESPONDENTS
(BY SRI. VINAYAK APTE, ADVOCATE FOR RESPONDENT NOS.2
TO 4;
SRI. D. P. AMBEKAR, ADVOCATE FOR RESPONDENT NO.5;
RESPONDENT NOS.2 TO 4 ARE THE LEGAL REPRESENTATIVES
OF THE DECEASED RESPONDENT NO.1;
CAUSE TITLE IS AMENDED VIDE COURT ORDER DATED
12.01.2024;
VIDE ORDER DATED 07.01.2025, SERVICE OF NOTICE TO
RESPONDENT NOS.6 TO 8 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF THE CERTIORARI THEREBY QUASHING THE
IMPUGNED ORDER VIDE ANNEXURE - F DATED 07.11.2020
PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, B.BAGEWADI
IN O.S NO.112/2015, IN THE INTEREST OF JUSTICE AND
EQUITY. B) ISSUE WRIT IN THE NATURE OF MANDAMUS
THEREBY ALLOWING I.A NO.VII FILED BY THE PETITIONERS IN
O.S NO.112/2015 TO AMEND THE WRITTEN STATEMENT.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN
AS UNDER:
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WP No. 200163 of 2021
C/W WP No. 202191 of 2021
CORAM: HON'BLE MR. JUSTICE R.NATARAJ
ORAL ORDER
The defendant Nos.1 and 3 in O.S. No.112/2015 pending
trial before the Senior Civil Judge and JMFC., Basavana
Bagewadi, (henceforth referred to as 'the Trial Court') have
filed W.P. No.200163/2021 challenging an order dated
07.11.2020 by which their application (I.A. No.6) filed under
Order VI Rule 17 of the Code of Civil Procedure, 1908 (for
short, 'CPC') to amend their written statement to incorporate a
counter claim was rejected.
2. The defendant Nos.4 to 6 and 8 in O.S.
No.112/2015 pending trial before the Senior Civil Judge and
JMFC., Basavana Bagewadi, have filed W.P. No.202191/2021
challenging an order dated 07.11.2020 by which their
application (I.A. No.7) filed under Order VI Rule 17 of CPC to
amend the written statement to incorporate a counter claim
was rejected.
3. The suit in O.S. No.112/2015 was filed for
declaration of title of the plaintiffs to the suit lands and for
recovery of the same from the defendants.
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4. The plaintiffs claimed that the suit lands belonged
to their predecessor and that their predecessor had engaged
distant relatives for cultivation of the same prior to the year
1980. They contended that till the death of their predecessor,
their relative was sharing the crop grown in the suit lands and
later, when the plaintiffs started visiting the suit lands, the
defendants refused to share the produce grown in the suit
lands. The plaintiffs, therefore, sought for a relief of declaration
of their title to the suit lands and for recovery of possession of
the same from the defendants.
5. Defendant Nos.1 and 3 filed a written statement
denying the claim of the plaintiffs. They also denied that the
predecessor of the plaintiff had engaged their predecessor for
cultivation of the suit lands. They claimed that the predecessor
of the plaintiffs was excluded from the possession of the suit
lands from the year 1980 which was within the knowledge of
the plaintiff No.1 and everyone in the village. Therefore, they
contended that the defendant Nos.3, 5 and 6 had perfected
their title to the suit lands by way of adverse possession.
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6. Similarly, defendant Nos.4 to 6 and 8 filed a
separate written statement reiterating the contentions urged by
the defendant Nos.1 and 3 in their written statement.
7. Based on these contentions, issues were framed by
the Trial Court and the suit was set down for trial. When the
suit was set down for the evidence of the defendants, two
applications, namely, I.A. No.6 and I.A. No.7 were filed by the
defendant Nos.1 and 3 as well as defendant Nos.4 to 6 and 8
respectively, to amend their written statement to incorporate a
counter claim/s for declaration that they had perfected their
title to the lands in R.S. No.160/1A and R.S. No.160/2
measuring 05 acres 38 guntas and 08 acres respectively,
situate at Somanal, B.Bagewadi taluk and which formed part of
the suit lands, by way of adverse possession. The said
applications were contested by the plaintiffs on the ground that
the same were filed long after issues were framed by the Trial
Court and after the suit was set down for evidence. They also
claimed that the defendants had already claimed that they had
perfected their title by way of adverse possession in respect of
some of the suit lands and therefore, there was no need to file
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application/s to amend the written statement to make a
counter claim.
8. The Trial Court after considering the contentions of
the plaintiffs and the defendant Nos.1 and 3 and 4 to 6 and 8,
rejected the applications (I.A Nos.6 and 7) in terms of the
impugned order on the ground that a counter claim is
permissible before issues are settled in the suit and only in
exceptional circumstances, the Court could exercise jurisdiction
to allow a counter claim after issues are settled. It also held
that allowing the amendment to the written statement/s would
change the nature of the defence raised by the said defendants
in their respective written statement.
9. Being aggrieved by the said order, defendant Nos.1
and 3, defendant Nos.4 to 6 and 8 are before this Court in W.P.
No.200163/2021 and W.P. No.202191/2021 respectively.
10. The learned counsel for the defendant
No.2/respondent No.5 in both the petitions contended that the
law as it stood when the defendant Nos.1 and 3 and defendant
Nos.4 to 6 and 8 filed their respective written statement was
that they could plead adverse possession to non-suit the
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plaintiffs. However, in view of the judgment of the Hon'ble
Apex Court in the case of Ravinder Kaur Grewal and Others
v. Manjit Kaur and Others [(2020) 9 SCC 706], a claim for
adverse possession could be now used as a sword. Therefore,
he contends that the defendant Nos.1 and 3 and 4 to 6 and 8
were entitled to seek for counter claim/s and this being an
exceptional circumstance, the Trial Court must have allowed
the defendant Nos.1 and 3 and defendant Nos.4 to 6 and 8 to
seek for counter claim/s.
11. Per contra, the learned counsel for the plaintiff
Nos.2 to 4 (respondent Nos.2 to 4 in both the petitions)
contended that the defendant Nos.1 and 3 and defendant Nos.
4 to 6 and 8 have already raised a claim of adverse possession
in their respective written statement. He submits that if the
defendants are able to establish that their possession had
become adverse to the right, title and interest of the plaintiffs,
then that would suffice and there is no need for the defendants
to make a counter claim for declaration of their title in respect
of some of the suit lands by way of adverse possession.
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12. I have considered the submissions of the learned
counsel for the plaintiff Nos.2 to 4 and the learned counsel for
the defendant No.2.
13. The defendant Nos.1 and 3 and defendant Nos.4 to
6 and 8 in their respective affidavit accompanying the
application Nos.6 and 7 had categorically mentioned that the
Hon'ble Apex Court had declared that the relief of counter claim
could also be claimed as a main relief departing from the
earlier view that it could be raised as a defence in a suit for
partition.
14. I have perused the written statement/s filed by the
defendant Nos.1 and 3 and defendant Nos.4 to 6 and 8 which
show that the said defendants had indeed taken a defence that
they had perfected their title to some of the suit lands by way
of adverse possession. As rightly contended by the learned
counsel for the defendant No.2, in view of the change in the
position of law, the defendant Nos.1 and 3 and 4 to 6 and 8
were entitled to seek for counter claim/s that they had
perfected their title in respect of some of the suit lands by way
of adverse possession. This being an exceptional circumstance,
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the Trial Court must have allowed the defendant Nos.1 and 3
and defendant Nos.4 to 6 and 8 to raise counter claim/s as that
would fully and conclusively determine the dispute between the
parties and also avoid multiplicity of proceedings.
15. In that view of the matter, W.P. No.200163/2021
and W.P. No.202191/2021 are allowed and the impugned
order dated 07.11.2020 passed by the Senior Civil Judge and
JMFC., Basavana Bagewadi, in O.S No.112/2015 rejecting the
applications, namely, I.A. Nos.6 and 7 filed by the defendant
Nos.1 and 3 (petitioners in W.P. No.200163/2021) and
defendant Nos.4 to 6 and 8 (petitioners in W.P.
No.202191/2021) respectively, for amendment of their
respective written statement to incorporate the counter claim/s
is set aside. The said applications are allowed. The defendant
Nos.1 and 3 and defendant Nos.4 to 6 and 8 are permitted to
amend their respective written statement in O.S. No.112/2015
and incorporate the counter claim/s. It is open for the plaintiff
Nos.2 to 4 to file a written statement to the counter claim/s, if
they are so advised.
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16. Since the suit is filed in the year 2015, the Trial
Court is requested to dispose off the suit - O.S No.112/2015 as
early as possible, at any rate, within a period of one year from
the date of receipt of a certified copy of this order.
Sd/-
(R.NATARAJ)
JUDGE
SMA
CT:SI
