Karnataka High Court
Smt Sheshamma vs Sri Ramesh Kumar on 30 July, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 10.07.2025
Pronounced on :30.07.2025 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CIVIL REVISION PETITION No.144 OF 2025
BETWEEN:
1 . SMT.SHESHAMMA
W/O LATE K.NAGARAJA RAO,
SINCE DECEASED BY HER LRs.
a. SMT.N.PRATHIBA RAJA KUMARI
D/O LATE K.NAGARAJA RAO
AGED ABOUT 63 YEARS
RESIDING AT NO.1038, 27TH MAIN
9TH BLOCK, JAYANAGAR
BENGALURU - 560 069.
b. SRI N.KEERTHIRAJ
S/O LATE K.NAGARAJ RAO
AGED ABOUT 61 YEARS
RESIDING AT NO.1038, 27TH MAIN
9TH BLOCK, JAYANAGAR
BENGALURU - 560 069.
c. SRI RAJESH KUMAR N.,
S/O LATE K.NAGARAJ RAO
AGED ABOUT 58 YEARS
RESIDING AT NO.1038, 27TH MAIN
9TH BLOCK, JAYANAGAR
2
BENGALURU - 560 069.
... PETITIONERS
(BY SRI SAINATH, ADVOCATE FOR LR's OF THE
PETITIONER)
AND:
1. SRI RAMESH KUMAR
S/O LATE P.RAMACHANDRA RAO,
AGED ABOUT 60 YEARS,
PRESENTLY R/AT BRAHMIN'S STREET, PARAPANNAHALLI
VILLAGE,
JIGANI HOBLI, ANEKAL TALUK,
BENGALURU DISTRICT - 560 105.
2. JAYANTHIMALA
D/O LATE P.RAMACHANDRA RAO,
AGED ABOUT 57 YEARS,
PRESENTLY R/AT BRAHMIN'S STREET, PARAPANNAHALLI
VILLAGE,
JIGANI HOBLI, ANEKAL TALUK,
BENGALURU DISTRICT - 560 105.
... RESPONDENTS
(BY SRI RAMACHANDRA G.BHAT, ADVOCATE)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF CIVIL PROCEDURE CODE 1908, a) CALL FOR THE RECORDS
OF O.S.NO.8121/2012 WHICH IS PENDING FOR HEARING ON IA's
ON THE COURT OF LXXV ADDL.CITY CIVIL AND SESSION JUDGE
BENGALURU CITY; SET ASIDE THE ORDER DATED 21.03.2024
(ANNEXURE -A) AND CONSEQUENTLY ALLOW THE MEMO FILED BY
THE PETITIONER TO DISMISS THE SUIT.
3
THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 10.07.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The plaintiff, since deceased represented by her legal
representatives/petitioners 1(a) to 1(c) are before this Court calling
in question an order dated 21.03.2024, passed by the LXXV
Additional City Civil and Sessions Judge, Bengaluru City in
O.S.No.8121 of 2012, rejecting the memo filed by the plaintiff
seeking dismissal the suit as not pressed.
2. Facts, in brief, germane are as follows: -
Before embarking upon consideration of the issue on merits, I
deem it appropriate to notice the protagonists to the lis. The
plaintiff, original petitioner one Smt.Sheshamma dies during the
proceedings. Therefore, petitioners 1(a) to (c), the legal heirs of
Sheshamma are brought on record as petitioners. The defendants
are also represented by their legal heirs as defendants 1(b) and
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1(c) and they are respondents 1 and 2 in this revision petition. All
are members of the same family.
3. One Keshavaiah, owner of the suit schedule properties had
three children. The other member of the family K. Ramachandraiah
had several children. All the parties enter into a family arrangement
on 30-12-1998 by drawing up a family settlement deed. A suit is
then instituted on some dispute between the members of the family
in O.S.No.2086 of 2006, seeking partition of the suit schedule
properties. The said suit ends up in a compromise not between all
the parties to the suit but between few of them on 18-11-2006. The
parties to the compromise were the families of Keshavamurthy,
defendants 2 to 5, Defendants 11, 12, 13 and 14 excluding the
plaintiff. In accordance with the compromise, several properties
were distributed which led the other persons who are not parties to
the compromise to file a suit in O.S.No.8121 of 2012 again seeking
partition of the suit schedule properties, which were according to
the plaintiff, joint family properties. The original plaintiff
Sheshamma contended that she owns 1/6th share in the suit
schedule properties as a coparcener and so had filed the suit for
5
partition. The plaint later comes to be amended to declare the
compromise decree dated 18-11-2006 as not binding on
Sheshamma, the plaintiff. Sheshamma dies during the
proceedings. On 08.08.2019, the legal representatives of
Sheshamma were brought on record. When both the defendants
died during the pendency of the proceedings, their legal
representatives have come on record. The proceedings go on.
Written statement was filed by the defendants. Long thereafter, on
18-01-2023, the petitioners file a memo seeking dismissal of the
suit as not pressed. Respondents 1 and 2 objected to the filing of
the memo on the score that it was filed 11 years after institution of
the suit and it was a collusion between the plaintiff and defendants
2 to 18 leaving out respondents 1 and 2, who are the legal
representatives of the original defendants. On 30.01.2023, several
of the defendants filed their memo of 'no objection' for withdrawal
or dismissal of the suit and to receive compensation. Respondents 1
and 2 filed a memo enclosing plethora of judgments objecting to
the withdrawal of the suit. It is their claim in the objections that
their legitimate share, which they have inherited through their late
mother should be determined. The concerned Court in terms of the
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order impugned, relying on the judgment of the division bench of
this Court in the case of SMT.GOWRAMMA v. NANJAPPA1,
rejected withdrawal memo on the score that in a suit for partition;
plaintiff and the defendants are on equal footing and if anyone
objects to withdrawal of the suit, the suit may be continued by the
defendants, transposing themselves as plaintiffs in the suit. By a
subsequent order dated 01-02-2025, the concerned Court allows
respondents 1 and 2 to transpose themselves as plaintiffs 2 and 3
and prosecute the suit seeking their share. It is aggrieved by the
aforesaid action, the petitioners are before this Court.
4. Heard Sri Sainath, learned counsel appearing for the
petitioners and Sri Ramachandra G. Bhat, learned counsel
appearing for the respondents.
5. The learned counsel appearing for the petitioners would
vehemently contend that institution of the suit and its withdrawal is
the prerogative of the plaintiff. She is the master of the suit. The
learned counsel would submit that the Court was not justified in
relying on the judgment of the division bench in the case of
1
2001 SCC OnLine Kar. 501
7
SMT.GOWRAMMA (supra) as the ratio laid down therein is entirely
different. The application under Order XXIII Rule 1 CPC filed by the
plaintiff generates an unqualified right to withdraw the suit and if no
permission to file a fresh suit is sought, the plaintiff becomes liable
for costs as the Court may reward. There is no provision under the
CPC, which requires the Court to refuse permission to withdraw the
suit and compel the plaintiff to proceed with it. He would place
reliance upon the judgment of the Apex Court in the case of
R.RAMAMURTHI AIYAR (DEAD) v. RAJA V.RAJESWARARAO,
reported in AIR 1973 SC 643 to buttress his submission that
under Order XXIII Rule 1 CPC the Court can reject the petition for
withdrawal of a suit filed by the plaintiff on a very limited
circumstance only when a preliminary decree has already been
passed and not otherwise. He would submit that the case in
SMT.GOWRAMMA (supra) is per incurium as it does not consider
the issue appropriately. No preliminary decree is drawn in the case
at hand and there is no determination of rights of parties.
Therefore, the suit must be permitted to be withdrawn.
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6. On the converse, the learned counsel appearing for the
respondents submits that the family settlement deed or a
compromise decree earlier arrived at is not binding on the
respondents. The daughters of Keshavamurthy were married to the
sons of the original plaintiff and they very well knew about the
family settlement deed of the year 1998, since they have received
money on the said settlement. Defendant No.1, mother of
respondents 1 and 2 was seriously ill and passed away before she
could file the written statement. The memo for withdrawal has
within it a hidden agenda to help defendants 6 to 18 and
defendants 3 and 5 who are daughters-in-law of the plaintiff.
Solely because some of the legal representatives of the 1st
defendant have no objection to the memo, it cannot be said that all
other respondents also should agree for withdrawal giving up their
share or right in the property. He would seek dismissal of the
petition.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
9
8. The gravamen of the matter is, whether in a suit for
partition, quintessentially inter se amongst the members of
the family with regard to undivided property, a plaintiff
enjoys an unfettered liberty to withdraw from the fray,
leaving others similarly placed in the lurch. The said issue
though ostensibly simple, calls for nuanced engagement and
consideration.
9. Before embarking upon consideration of the subject issue
on its merit, I deem it appropriate to notice the judgment of the
division bench judgment in the case of SMT.GOWRAMMA (supra)
upon which the concerned Court has placed its reliance to reject the
memo. The division bench has held as follows:
".... .... ....
7. On the other hand, learned Counsel appearing for the
respondent No. 1 (plaintiff) submitted that the plaintiff in a suit
is the dominus litis and he has the right and freedom to
withdraw the suit filed by him or seek dismissal at any point of
time and a defendant has no right to oppose such withdrawal or
dismissal. It is also contended that dismissal of the suit would in
no way prejudice a defendant in a partition suit as the
defendant who wants a partition can always file a fresh suit for
partition, and the dismissal of the plaintiff's suit would not in
any way affect a defendant's right to file such suit.
10
8. Therefore the question that arises for consideration is,
whether in a partition suit, the plaintiff can be permitted to
withdraw the suit, or whether a suit can be dismissed as settled
out of Court between plaintiff and some of the defendants, when
other defendants have also sought partition and separate
possession.
9. At the outset it should be noticed that the reason given
by the trial Court for rejecting the objection of first and fifth
defendant to the memo of the plaintiff for dismissing the suit, is
wholly erroneous. The Trial Court has held that defendant's
prayer for partition is a counter claim; and that a counter claim
is permissible only in a money suit and not in a partition suit;
and therefore the counter claim was not tenable. Firstly, when a
defendant in a suit for partition seeks his or her share in
property by paying court-fee, such a defendant is not making a
'counter claim' against a plaintiff alone. He is virtually joining
the plaintiff in seeking the relief. He is seeking relief for himself
not only against the plaintiff, but also the other defendants. The
Court below, therefore, fell into an error by treating the written
statement in a suit for partition seeking separate possession of
the defendants' share as a counter-claim against the plaintiff.
Secondly, the Court also fell into an error in assuming that a
counter claim is permissible only in a money suit and not in any
other suit.
10. in Jagmohan v. Dera Radha Swami Satsang [AIR
1996 SC 2222.] the Supreme Court has held that a counter
claim is no longer confined to money claims or to a cause of
action of the same nature as original action of the plaintiff. This
Court, while considering the nature and scope of a counter
claim, as contrasted from a set off, in State Trading Corporation
of India Limited v. Vanivilas Co-Operative Society Limited [
R.F.A. No. 551/1994 dd 29.3.2001.] has held that counter-claim
need not be restricted to money suits only. Hence, the ground
on which the fifth defendant's objection (to plaintiff's request for
dismissal) has been rejected is untenable. Be that as it may.
Whether a claim for share by a defendant in a partition suit is a
counter-claim is not the issue. The question is whether a
defendant seeking a share is also in the position of a plaintiff
and whether the original plaintiff cannot therefore withdraw the
11
suit without the consent of the defendant, who is in the position
of a plaintiff.
11. In Tukaram MahaduTandel v. Ramchandra
MahaduTandel [ AIR 1925 Bombay 425.] the Bombay
High Court held as follows:--
"But there are other and wider considerations
which lead me to hold that plaintiff could not have
withdrawn so as to defeat the defendants' claim. It is
relevant to point out that in a partition suit a
defendant seeking a share is in the position of a
plaintiff and one plaintiff cannot withdraw without
the permission of another." The Court further
emphasised that though as a general proposition, a
plaintiff may at any time withdraw a suit, a plaintiff
cannot always in all circumstances withdraw a suit.
This was approved and followed by the Supreme
Court in R. Ramamurthi v. Rajeshwara Rao [AIR 1973
SC 643.] .
12. In Ajita Debi v. Hossenara Begum [AIR 1977 Cal
59.] the Calcutta High Court reiterated the following
principle:
"In our view, where an application has been
made under Order XXIII, Rule 1 the plaintiff is
entitled to withdraw his suit and the defendants
cannot be heard to oppose such prayer. But the said
legal right of the plaintiffs to withdraw the suit is not
unconditional or absolute. The Court can only exercise
its jurisdiction in favour of the plaintiffs where the
interests of the defendants are not adversely affected
in any way it the plaintiff are allowed to withdraw the
suit. To Illustrate, in a partition suit by a sole plaintiff
against defendants, the former cannot be allowed to
withdraw the suit inasmuch as a defendant having a
cause of action against such plaintiff, may be allowed
to be transposed as plaintiff in the suit...."
"Where an application simpliciter has been
made under Order 23 Rule 1, the Court cannot compel
the plaintiff to proceed with the suit and the
defendants cannot be allowed to complain against
12
such order. But where there is an affinity or identity
of interests between the plaintiffs and one or more of
the defendants, the plaintiffs cannot be allowed to
withdraw or to compromise the suit with one of the
defendants if an application on behalf of other
defendants having an interest in the suit is made for
their transposition to the category of plaintiffs and for
transposition of the plaintiffs to the category of the
defendants under Order 1, Rule 10."
13. The above principle was followed and
reiterated B. Pattabhiramayya v. B.
Gopalakrishnayya [AIR 1986 AP 270.] . It was held that if
a Court grants permission to the plaintiff to withdraw a
partition suit without giving notice to all the contesting
defendants, it acts without jurisdiction, as the Court had
denied the defendants their lawful right to prosecute the
suit by getting transposed as plaintiff. The contention
based on the decision of the Supreme Court in Hulas
Rai v. K.B. Bass and Company [AIR 1968 SC 111.] that
there was an unqualified right in a plaintiff to withdraw
the suit as dominus litis was rejected by pointing out the
exceptions to such right is pointed out by the Supreme
Court itself in the said decision.
14. In Manohar Singh v. Sardar Bal [ AIR 1987
Rajastan 177.] a Learned Single Judge of the Rajastan
High court held that in a suit for partition, even the
defendants have the same right as plaintiff to claim
partition and the manner in which the parties are arrayed
as plaintiffs or defendants in the suit is not material; and
the defendants can always be transposed as plaintiffs and
can continue the suit if they feel that the plaintiff is not
continuing the suit in their interest and therefore, in a
suit for partition, the plaintiff has no absolute right to
withdraw a suit under Order 23 Rule 1 of the Code of Civil
Procedure.
15. When a suit for partition is filed, by a member
of a joint family, he expresses his unequivocal intention
to separate himself from the joint family and
consequently there is a severance of joint family status
from the date of suit. A suit for partition is invariably
13
brought in respect of all the joint family properties. Every
person (including female members) who is entitled to a
share on partition is impleaded as plaintiff or defendant,
having regard to the fact that any decree which gives a
property or a portion of a property to a plaintiff, takes
away the right of the other members in that property or
portion of the property, and non-impleading of the
necessary parties will lead to its dismissal. (Where
however partition is claimed branch-wise by any
particular branch, it may be sufficient if the heads of all
the branches are made parties). In a suit for partition,
each defendant is entitled to seek partition and separate
possession of his share by paying the specifically
prescribed Court Fee for such purpose. When a plaintiff
seek partition, he is seeking partition not only against the
defendants but also against his co-plaintiff, if any.
Similarly when a defendant seeks partition, the relief is
sought not only against the plaintiffs, but against the co-
defendants also. In other words, each party to a suit for
partition, whether a plaintiff or defendant, who seeks the
relief of partition and separate possession by paying
separate Court Fee, is in the position of plaintiff with
reference to all other parties to the suit. When a
defendant seeks partition and separate possession of his
share, in a suit for partition filed by a plaintiff, the
defendant's claim is neither a set off, nor a 'counter-
claim' against the plaintiff in the traditional sense, but is
one of a wider scope. The Karnataka Court Fees and Suits
Valuation Act, 1958 treats a counter-claim and a
defendants' claim for partition differently by providing for
them under Section 8 and 35(3) respectively and
prescribes different types of Court Fee. Therefore, when
the defendants in a suit have paid separate Court Fee and
sought partition and separate possession of their shares
also, the suit cannot be dismissed as withdrawn or
settled out of Court by plaintiff with other defendants.
16. The procedure to be adopted by Courts in a
partition suit, when a plaintiff wants to withdraw the suit,
or when plaintiff wants the suit to be dismissed as settled
out of Court with some defendants, can be summarised
thus:
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(i) When a plaintiff wants a partition suit to be
dismissed or withdrawn as settled out of Court, the
Court should require notice of such application or
memo to all other parties (not only all defendants,
but co-plaintiffs if any) and hear the parties.
(ii) If all parties are agreeable for the dismissal or
withdrawal, the Court may grant the request.
(iii) If any defendant has already sought partition and
separate possession by paying Court Fee and
opposes the dismissal/withdrawal, it shall permit
such defendant to transpose himself/herself as
plaintiff and continue the suit, irrespective of
whether he makes an application for transposition
or not.
(iv) Even if no defendant has sought the relief of
partition and separate possession, till then, the
Court may in appropriate cases permit any
defendant who files an application in that behalf, to
get himself transposed as plaintiff and claim
partition and separate possession by paying
necessary Court Fee and continue the suit. Refusal
to grant such permission should be for valid
reasons to be assigned by the Court."
(Emphasis supplied)
The division bench holds that the plaintiff in a partition suit
is not a solitary suitor but a representative of a class of
potential claimants. In such context, the unilateral
withdrawal of a suit if permitted, would work injustice upon
those defendants who have espoused, or may yet espouse,
15
similar claims. The division bench lays down in crystalline
clarity that in suits for partition, the dichotomy between the
plaintiffs and the defendants is illusory; all parties asserting
their rights in a suit for partition stand on equal footing.
The division bench considers the judgments rendered by the Apex
Court and that of the High Court of Bombay and holds that the
Court can exercise its jurisdiction in favour of the plaintiff to
withdraw the suit only if the interest of the defendant is not
adversely affected in any way. If one or more defendants object to
the withdrawal of the suit for partition, the plaintiff cannot be
allowed to withdraw the suit, if one defendant's interest in the suit
is put to jeopardy. In those circumstances, those categories of
defendants can always transpose themselves as plaintiffs and in
that light holds that a suit for partition, if there is objection, cannot
be withdrawn in its entirety. The defendants are entitled to
transpose themselves as plaintiffs. The concerned Court has
passed the impugned order in strict consonance with what the
division bench has held.
16
10. Following the aforesaid judgment, another division bench
in the case of SMT.MAHADEVI v. MALLIKARJUN2, has held as
follows:
".... .... ....
5. However, the judgment referred to hereinabove lays
down the procedure to be followed in cases such as this. The
facts of that case were almost similar to the present case on
hand and the Division Bench while referring to the decision in
the case of Jagmohan v. Dera Radha Swami Satsang [(1996) 4
SCC 699 : AIR 1996 SC 2222] , has noticed that the Supreme
Court has laid down that a counter claim is no longer confined to
money claims or to a cause of action of the same nature as an
original action of the plaintiff and that this Court in State
Trading Corporation of India Ltd. v. Vanivilas Co-Operative
Society Ltd. [2001 (5) Kant. LJ 570] , has held that a counter
claim need not be restricted to money suits only. Therefore, it
was held that whether a claim for a share by a defendant in a
partition suit, is a counter claim was not the issue. The
question was, whether the defendant seeking a share is
also in the position of a plaintiff and whether the original
plaintiff cannot therefore withdraw the suit without the
consent of the defendant who is in the position of the
plaintiff. After noticing the judgment of other High Courts
namely, Tukaram MahaduTandel v. Ramchandra
MahaduTandel [AIR 1925 Bom. 425], R.
Ramamurthi v. Rajeshwara Rao [(1972) 2 SCC 721: AIR
1973 SC 643], Ajita Debi v. Hossenara Begum [AIR 1977
Calcutta 59], wherein it was held that where an
application has been made under Order XXIII Rule 1
C.RC, the plaintiff is entitled to withdraw the suit and
defendants cannot be heard to oppose such a prayer but
the said legal right of the plaintiff, to withdraw the suit,
is not unconditional. The Court can only exercise its
power in favour of the plaintiff where the defendant's
right is not adversely affected if the plaintiff is allowed to
withdraw the suit. The sole plaintiff normally cannot be
2
2016 SCC OnLine Kar 6400
17
allowed to withdraw the suit. The defendant may be
allowed to be transposed as plaintiff in the suit. And that
the above principle was followed and reiterated in the
case of PattabHiramayya v. B. Gopalakrishnayya [AIR
1986 Andhra Pradesh 270] , while placing reliance on the
decision of the Supreme Court in the case of Hulas
Rai v. K.B. Bass and Co. [AIR 1968 SC 111] . It was laid
down that the procedure to be followed by Courts in a
partition suit when the plaintiffs want to withdraw the
suit or when the plaintiff wants the suit to be dismissed
as settled out of Court with some defendants as
compromised, as follows:
"8. The procedure to be adopted by Courts
in a partition suit, when a plaintiff wants to
withdraw the suit, or when plaintiff wants the suit
to be dismissed as settled out of Court with some
defendants, can be summarised thus:
(i) When a plaintiff wants a partition suit to be
dismissed or withdrawn as settled out of
Court, the Court should require notice of
such application or memo to all other
parties (not only all defendants, but co-
plaintiffs if any) and hear the parties.
(ii) If all parties are agreeable for the dismissal
or withdrawal, the Court may grant the
request.
(iii) If any defendant has already sought
partition and separate possession by paying
Court Fee and opposes the
dismissal/withdrawal, it shall permit such
defendant to transpose himself/herself as
plaintiff and continue the suit, irrespective
of whether he makes an application for
transposition or not.
(iv) Even if no defendant has sought the relief of
partition and separate possession, till then,
the Court may in appropriate cases permit
any defendant who files an application in
that behalf, to get himself transposed as
plaintiff and claim partition and separate
possession by paying necessary Court Fee
18
and continue the suit. Refusal to grant such
permission should be for valid reasons to be
assigned by the Court."
6. In the above view of the matter, though the Trial
Court has reserved liberty to the appellant to file a fresh
suit, the procedure as laid down by this Court is the
appropriate procedure, to be followed and hence the
matter is remanded to enable the appellant to be
transposed as plaintiff, and to adjudicate the suit in
accordance with law. Hence the Trial Court shall take
appropriate steps to issue notice to the other parties
after the appellant is permitted to transpose himself as
plaintiff and the proceeding shall go on in accordance
with law. The impugned judgment is set-aside."
(Emphasis supplied)
The division bench reiterates the view taken in the case of
SMT.GOWRAMMA (supra) and holds that when a plaintiff files an
application for withdrawal of a partition suit, then the defendants
need not be directed to file a fresh suit with regard to his claim and
instead the appropriate procedure is to transpose the defendants as
plaintiffs and allow them to continue with the suit in accordance
with law.
11. A co-ordinate bench of this Court in the case of
SHRI.SANGAPPA v. SHRI.SADASHIV3, holds as follows:
3
W.P.No.107673 of 2017 decided on 09-01-2023
19
".... .... ....
5. Per contra, learned counsel for respondents-
defendants No.7 to 15 submits that having regard to the
undisputed fact that the suit was one for partition and
separation possession in which all parties occupy the
status of plaintiff and defendant and in the light of the
judgment of the Division Bench of this Court in the case
of Smt.Gouramma V/s Nanjappa and others, ILR 2001
KAR 4853, when the plaintiffs sought to withdraw their
claim as not pressed, it was the duty of the trial Court to
call upon the defendants to state as to whether they have
no objection for suit to be dismissed as not pressed or
transpose them as the plaintiffs upon their request and
consequently the trial Court was fully justified in passing
the impugned order permitting defendants No.7 to 15 to
be transposed as additional plaintiffs to the suit. It is
therefore submits that there is no merit in the petition
and same is liable to be dismissed.
6. The law relating to transposition of defendants as
plaintiffs in a suit for partition when the plaintiffs intend to
withdraw their claim by way of settlement or otherwise is no
longer res-integra in the light of the judgment of the Division
Bench of this Court in the case of Smt.Gouramma supra
wherein it is held as under:
"8. Therefore, the question that arises for
consideration is, whether in a partition suit, the plaintiff can
be permitted to withdraw the suit, or whether a suit can be
dismissed as settled out of Court between plaintiff and some
of the defendants, when other defendants have also sought
partition and separate possession.
9. At the outset it should be noticed that the reason
given by the Trial Court for rejecting the objection of first
and fifth defendants to the memo of the plaintiff for
dismissing the suit, is wholly erroneous. The Trial Court has
held that defendant's prayer for partition is a counterclaim;
and that a counter-claim is permissible only in a money suit
and not in a partition suit; and therefore the counter-claim
was not tenable. Firstly, when a defendant in a suit for
partition seeks his or her share in property by paying Court
20
fee, such a defendant is not making a 'counterclaim' against
a plaintiff alone. He is virtually joining the plaintiff in
seeking the relief. He is seeking relief for himself not only
against the plaintiff, but also the other defendants. The
Court below, therefore, fell into an error by treating the
written statement in a suit for partition seeking separate
possession of the defendants' share as a counter-claim
against the plaintiff. Secondly, the Court also fell into an
error in assuming that a counter-claim is permissible only in
a money suit and not in any other suit.
10. In JAG MOHAN CHAWLA AND ANR. V. DERA
RADHA SWAMI SAT-SANG AND ORS., the Supreme Court
has held that a counter-claim is no longer confined to
money claims or to a cause of action of the same nature as
original action of the plaintiff. This Court, while considering
the nature and scope of a counter-claim, as contrasted from
a set off, in STATE TRADING CORPORATION OF INDIA
LIMITED, BANGALORE V. VANIVILAS COOPERATIVE SUGAR
FACTORY LIMITED, HIRIYUR, CHITRADURGA DISTRICT,
2001(5) Kar. L.J. 570 has held that counter-claim need not
be restricted to money suits only. Hence, the ground on
which the fifth defendant's objection (to plaintiff's request
for dismissal) has been rejected is untenable. Be that as it
may. Whether a claim for share by a defendant in a
partition suit is a counterclaim is not the issue. The question
is whether a defendant seeking a share is also in the
position of a plaintiff and whether the original plaintiff
cannot therefore withdraw the suit without the consent of
the defendant, who is in the position of a plaintiff.
11. In TUKARAM MAHADU TANDEL V. RAMCHANDRA
MAHADU TANDEL, AIR 1925 Bom. 425 the Bombay High
Court held as follows:
"But there are other and wider considerations which
lead me to hold that plaintiff could not have
withdrawn so as to defeat the defendants' claim. It is
relevant to point out that in a partition suit a
defendant seeking a share is in the position of a
plaintiff and one plaintiff cannot withdraw without
the permission of another".
The Court farther emphasised that though as a general
proposition, a plaintiff may at any time withdraw a suit, a
plaintiff cannot always in all circumstances withdraw a
21
suit. This was approved and followed by the Supreme
Court in R. Ramamurthi Aiyar (dead) by L.Rs v. Raja V.
Rajeswararao.,
12. In SMT. AJITA DEBI V MUSST. HOSSENARA
BEGUM AND ORS., the Calcutta High Court reiterated the
following principle:
"In our view, where an application has been made
under Order 23, Rule 1 the plaintiff is entitled to
withdraw his suit and the defendants cannot be
heard to oppose such prayer. But the said legal right
of the plaintiffs to withdraw the suit is not
unconditional or absolute. The Court can only
exercise its jurisdiction in favour of the plaintiffs
where the interests of the defendants are not
adversely affected in any way if the plaintiffs are
allowed to withdraw the suit. To illustrate, in a
partition suit by a sole plaintiff against defendants,
the former cannot be allowed to withdraw the suit
inasmuch as a defendant having a cause of action
against such plaintiff, may be allowed to be
transposed as plaintiff in the suit....."
"Where an application simpliciter has been
made under Order 23, Rule 1, the Court cannot
compel the plaintiff to proceed with the suit and the
defendants cannot be allowed to complain against
such order. But where there is an affinity or identity
of interests between the plaintiffs and one or more of
the defendants, the plaintiffs cannot be allowed to
withdraw or to compromise the suit with one of the
defendants if an application on behalf of other
defendants having an interest in the suit is made for
their transposition to the category of plaintiffs and
for transposition of the plaintiffs to the category of
the defendants under Order 1, Rule 10."
13. The above principle was followed and reiterated
in BANGARU PATTABHIRAMAYYA AND ORS. V. BANGARU
GOPALAKRISHNAYYA AND ORS., It was held that if a
Court grants permission to the plaintiff to withdraw a
partition suit without giving notice to all the contesting
defendants, it acts without jurisdiction, as the Court had
denied the defendants their lawful right to prosecute the
22
suit by getting transposed as plaintiff. The contention
based on the decision of the Supreme Court in HULAS RAI
BAIJ NATH V. K.B. BASS AND COMPANY, that there was
an unqualified right in a plaintiff to withdraw the suit as
dominus litis was rejected by pointing out the exceptions
to such right is pointed out by the Supreme Court itself in
the said decision.
14. IN MANOHAR SINGH V. MST. SARDAR BAI AND
ORS., a learned Single Judge of the Rajasthan High Court
held that in a suit for partition, even the defendants have
the same right as plaintiff to claim partition and the
manner in which the parties are arrayed as plaintiffs or
defendants in the suit is not material; and the defendants
can always be transposed as plaintiffs and can continue
the suit if they feel that the plaintiff is not continuing the
suit in their interest and therefore, in a suit for partition,
the plaintiff has no absolute right to withdraw a suit under
Order 23, Rule 1 of the Code of Civil Procedure.
15. When a suit for partition is filed, by a member
of a joint family, he expresses his unequivocal intention
to separate himself from the joint family and
consequently there is a severance of joint family status
from the date of suit. A suit for partition is invariably
brought in respect all the joint family properties. Every
person (including female members) who is entitled to a
share on partition is impleaded as plaintiff or defendant,
having regard to the fact that any decree which gives a
property or a portion of a property to a plaintiff, takes
away the right of the other members in that property or
portion of the property, and non-impleading of the
necessary parties will lead to its dismissal. (Where
however partition is claimed branch-wise by any
particular branch, it may be sufficient if the heads of all
the branches are made parties.) In a suit for partition,
each defendant is entitled to seek partition and separate
possession of his share by paying the specifically
prescribed Court fee for such purpose. When a plaintiff
seeks partition, he is seeking partition not only against
the defendants but also against his co-plaintiff, if any.
Similarly when a defendant seeks partition, the relief is
sought not only against the plaintiffs, but against the co-
23
defendants also. In other words, each party to a suit for
partition, whether a plaintiff or defendant, who seeks the
relief of partition and separate possession by paying
separate Court fee, is in the position of plaintiff with
reference to all other parties to the suit. When a
defendant seeks partition and separate possession of his
share, in a suit for partition filed by a plaintiff, the
defendant's claim is neither a set off nor a 'counter claim'
against the plaintiff in the traditional sense, but is one of
a wider scope. The Karnataka Court Fees and Suits
Valuation Act, 1958 treats a counter-claim and a
defendant's claim for partition differently by providing for
them under Sections 8 and 35(3) respectively and
prescribes different types of Court fee. Therefore, when
the defendants in a suit have paid separate Court fee and
sought partition and separate possession of their shares
also, the suit cannot be dismissed as withdrawn or settled
out of Court by plaintiff with other defendants.
16. The procedure to be adopted by Courts in a
partition suit, when a plaintiff wants to withdraw the suit,
or when plaintiff wants the suit to be dismissed as settled
out of Court with some defendants, can be summarised
thus:
(i) When a plaintiff wants a partition suit to be
dismissed or withdrawn as settled out of Court, the
Court should require notice of such application or
memo to all other parties (not only all defendants,
but co plaintiffs if any) and hear the parties.
(ii) If all parties are agreeable for the dismissal or
withdrawal, the Court may grant the request.
(iii) If any defendant has already sought partition and
separate possession by paying Court fee and
opposes the dismissal/withdrawal, it shall permit
such defendant to transpose himself/herself as
plaintiff and continue the suit, irrespective of
whether he makes an application for transposition
or not.
24
(iv) Even if no defendant has sought the relief of
partition and separate possession, still then, the
Court may in appropriate cases permit any
defendant who files an application in that behalf, to
get himself transposed as plaintiff and claim
partition and separate possession by paying
necessary Court fee and continue the suit. Refusal
to grant such permission should be for valid
reasons to be assigned by the Court.
17. In this case, the suit for partition was filed in
the year 1990. The fifth defendant had filed her written
statement seeking separation of her share in October
1993 and paid Court fee. Even the first defendant sought
separate possession of her share in November 1997. The
suit was sought to be withdrawn by the plaintiff after
evidence, when the matter was listed for final arguments.
While it is true that the withdrawal of the suit by the
plaintiff would not bar the fifth defendant from filing a
fresh suit for partition, there is no reason why fifth
defendant should not be permitted to continue the suit by
transposing herself as a plaintiff. But for the fact that the
plaintiff had filed the present suit in the year 1990 and
the fifth defendant was under the impression that she can
get her share also in the said suit (having sought such
share in 1993), she might have filed a separate suit long
back. Therefore, the fifth defendant was justified in
opposing the dismissal of the suit. In view of the
objections of the fifth defendant to the memo for
withdrawal on the specific ground that each defendant in
a partition suit seeking his or her share is in the position
of co-plaintiff, the Court ought to have permitted the fifth
defendant to continue the suit by transposing her as the
plaintiff. Even though the fifth defendant did not make
any specific application for transposition, it was clear from
her objections that she wanted the suit to be continued
and specifically pleaded that she was in the position of
the plaintiff In the circumstances, the appropriate course
was to direct her to be transposed as plaintiff and then
proceed with the matter.
18. In view of the above, we allow the appeal as
follows:
25
(i) The order dated 3-2-1998 passed in O.S. No. 5 of
1991 on the file of the Civil Judge, Bangalore Rural
District (dismissing the suit by accepting the memo
of the plaintiff for dismissal) is set aside.
(ii) The fifth defendant in the suit is permitted to get
herself transposed as plaintiff 2 and the plaintiff is
transposed as defendant 10.
(iii) The suit by original plaintiff (who is renumbered as
plaintiff 1 on transposition of 5th respondent) shall
stand dismissed as settled out of Court.
(iv) The suit with transposed 5th defendant as plaintiff
2 shall be continued from the stage at which was
dismissed, if necessary by permitting parties to let
in further evidence, having regard to the changed
circumstances.
(v) As the suit is of the year 1990, the Court shall
endeavour to dispose off the matter expeditiously.
(vi) Parties to bear their respective costs."
The coordinate bench also follows the law laid down by the division
bench in SMT.GOWRAMMA's case and holds that if the plaintiff
applies for withdrawal of suit for partition, the defendants are
entitled to be transposed as plaintiffs and continue with the suit.
12. Another coordinate Bench in the case of SUDHA v.
KAVERAMMA4 has held as follows:
4
2018 SCC OnLine Kar 2089
26
".... .... ....
10. Thus, in view of the law declared, in every suit
for partition, if a memo is filed by the plaintiff to
withdraw the suit, it is incumbent upon the trial court to
verify and record notice of the Memo filed by the plaintiff
for withdrawal of the suit and afford an opportunity to
the defendant/s to either transpose themselves as
plaintiff/s in the suit for adjudication of their claim for
separate share/s, if any, or in the alternative, to accede
to such request for dismissal of the suit, and in fact, it
held by this court in Gowramma v. Nanjappa (supra) that
such opportunity ought to be afforded to the defendant/s
not only in cases where a claim is made for separate
share/s and sufficient court fee is paid, but also in cases
where the defendant is yet to file such claim and pay
sufficient court fee.
11. However, in the case on hand, though admittedly the
appellants had filed a Memo, instead of a written statement
assertirg separate one-fifth shares, the trial court has not
recorded that the defendants, including the appellants, were on
notice of either the advance application or the Memo dated
11.9.2015 filed by the plaintiff or that the defendants had
agreed io the terms of the Memo dated 11.9.2015 filed by the
Plaintiff. Therefore, this court is of the opinion that, in view of
the law laid down by this court
in Gowramma v. Nanjappa (supra), the trial court could not
have proceeded to pass the impugned order and decree without
notice of the Memo by the plaintiff to the defendants and
without ascertaining whether the defendants/appellants also
agreed to the same or intended to transpose themselves as
plaintiffs and continue the suit for adjudication for their
respective claims for separate shares. As such, the impugned
order and decree, at least insofar as the appellants (because the
other defendants have not chosen to challenge the impugned
order and decree) is liable to be set aside and the suit in O.S.
No. 87/2014 on the file of the Senior Civil Judge and CJM at
Madikeri be restored on the file of the trial court for adjudication
of the appellants' claim with opportunity to the appellants in
terms of the procedure provided for in paragraph-16 of the
decision of this court in Gowaramma v. Nanjappa (supra).
27
12. Accordingly, the impugned order and decree are
modified setting aside the impugned order and decree in O.S.
No. 87/2014 on the file of the Senior Civil Judge and CJM at
Madikeri insofar as the appellants and restoring the suit in O.S.
No. 87/2014 on the file of the Senior Civil Judge and CJM at
Madikeri for adjudication of the appellants' claim in accordance
with the procedure provided for in paragraph-16 of the decision
of this court. The appeal is disposed off in terms above. No
costs."
(Emphasis supplied)
13. Earlier to the aforementioned judgments, the Apex Court
in the case of DWARIKA PRASAD v. NIRMALA5, holds as follows:
".... .... ....
24. What is relevant to notice is that the late father of
Respondent 1 did not claim any exclusive title to the properties
in himself. He claimed partition of the properties as one of the
joint owners. Initially, the suit was not only decreed in his
favour but also in favour of the third brother. It is well settled
that in a suit for partition of the joint properties every
defendant is also in the capacity of the plaintiff and
would be entitled to decree in his favour, if it is
established that he has a share in the properties.
Therefore, the suit for partition of the joint properties,
filed by the late father of Respondent 1, could not have
been dismissed as withdrawn without notice to another
brother, who was also entitled to a share in the
properties."
(Emphasis supplied)
5
(2010) 2 SCC 107
28
The Apex Court holds that in a suit for partition of joint
properties, every defendant is also in the capacity of the
plaintiff and would become entitled to a decree in his favour,
if it is established that he has a share in the property.
14. The Apex Court in the case of A.KRISHNA SHENOY v.
GANGA DEVI G6 holds that in a suit for partition, every interested
party is deemed to be a plaintiff. Law does not bar passing
numerous preliminary decrees. The Apex Court holds as follows:
".... .... ....
6. Both the Courts have wrongly construed the wills relied
upon by the petitioners, in disbelieving the evidence of the
witnesses, who attested. In support of his contention, learned
counsel has made reliance upon the decisions rendered by this
Court in Malluru Mallappa (Dead) Through Legal Representatives
v. Kuruvathappa and Others, (2020) 4 SCC 313 and Somakka
(Dead) by Legal Representatives v. K.P. Basavaraj (Dead) by
Legal Representatives , (2022) 8 SCC 261.
7. Upon perusal of the impugned order and the
preliminary decree passed by the Trial Court, we find no error
warranting interference. Order XLI, Rule 31 of the CPC has been
complied with under the impugned order, inasmuch as adequate
reasoning has been rendered. Suffice it is to state that the High
Court has considered the contentions on merit and, therefore,
dealt with the issues involved.
8. Section 10 of the CPC has got no application in
the case on hand. Admittedly, we are dealing with a suit
6
S.L.P. (Civil) No.8080 of 2019 decided on 11-09-2023
29
for partition, in which every interested party is deemed to
be a plaintiff. Law does not bar passing of numerous
preliminary decrees. The fact that the applicants are the
sisters of the petitioner is not in dispute.
9. In such view of the matter, they ought to have been
arrayed as defendants in the main suit itself. The dismissal of
the application during the final hearing proceeding has got no
bearing on the application filed seeking yet another preliminary
decree. Both the Courts had rightly disbelieved the unregistered
wills executed in favour of the petitioner ignoring the two
daughters."
(Emphasis supplied)
15. It becomes apposite to refer to the judgment rendered by
a division bench of this Court in the case of SRI.SRINIVAS v.
SRI.M.C. NARAYANASWAMY in RFA 946 OF 2018 decided on
26-07-2024, which holds that it is a settled principle of law
that a suit for partition is a recurring and continuing cause of
action and the right to seek partition is a substantive right.
16. In the light of lucid elucidations of law by the Apex Court
and the division benches of this Court and the single bench as well,
the order of the concerned Court requires to be noticed. It reads as
follows:
30
"ORDER ON MEMO
The plaintiff counsel filed the memo to dismiss the suit as
not pressed and he submitted in the memo that, the plaintiff is
aged about 87 years and unable to walk and her health issues
also does not permit her to prosecute the case and as per her
knowledge there was already a partition of the properties by
virtue of partition deed dated 30-12-1998 and the plaintiffs
children want to abide by the said partition and not interested
plaintiff getting in any share in the property and plaintiff decide
to withdraw all the averments allegations in the plaint,
rejoinder, any other affidavit whatsoever and she is not claiming
any share in the compensation amount deposited by defendant
No.21 in the above suit as she admits the partition dated
30-12-1998 and prays to allow the defendant No.6 to 18 to
receive the deposit amount as their lands were acquired by the
defendant No.21 or as they agree upon and the plaintiff has no
objection for this.
2. The defendant No.1(a), (d) to (g), defendant No.2 to
4, 6, 15(b, c) & defendant No.16 to 18 filed memo and
submitted that, these defendants agree and admit the contents
of the memo and they have also filed affidavit to give effect to
the same and they have no objection to dismiss the same and
memo filed by the plaintiff and no objection for defendant No.6,
11(a), 12, 13 and 15(a to c).
3. The defendant No.1(b) and (c) filed an application
under Order 18 Rule 2 (3A) of C.P.C. prays to received on
record, in the interest of justice and equity.
4. In the annexed affidavit, the legal heirs of 1st
defendant has submitted that, the case is filed by Sheshamma
who is none other than the sister of his deceased mother
Sharadamma. The plaintiff has filed a memo for withdrawal of
the suit and he is insisting that his counter claim has to be
adjudicated since it is a suit for partition. The suit was posted
for submitting their arguments on the memo filed by the
plaintiff, On 04.09.2023. On that day to his ill health he could
not appear before this Court. He had been informed that due to
ill health his counsel also did not appear and therefore the suit
stands posted for orders on the memo and the hearing is
31
scheduled on 30.09.2023. His failure to attend this Court on
04-09-2023 is not deliberate. He has filed necessary application
in that regard. Hence, this application.
5. The defendant No.1(b & c) submitted on 15.09.2023
that, the memo filed by the plaintiff may be dismissed.
6. Heard the arguments.
7. It is pertinent to note that, D1(a), (d) to (g) and D.6-
18 no objection on 30-01-2023. The defendant No.1(a), (d) to
(g), defendant No.2 to 4, 6, 15(b, c) & defendant No.16 to 18
filed memo saying that, they have no objection.
8. It is pertinent to note that the suit filed by the
plaintiff is for partition and possession by meters and
bounds and at present plaintiff and some defendants
decided not to contest the matter. But, defendant No.1(b)
and (c) not ready for the same and they want to contest
the matter.
9. In a partition suit both plaintiff and defendant's
are standing on the same foot as plaintiffs and if plaintiff
does not want to contest the matter then defendant can
come as plaintiff by transposing. Here in this case the
ratio laid down in Gowramma v. Nanjappa is applicable
even though the plaintiff is the master of his plaint and
he can withdraw his suit or part of his claim in the suit,
but in the partition suit plaintiffs and defendants stand in
equal foot and if any one objects to the withdrawal of the
suit then the suit may be continued as plaintiffs by
transposing themselves in the suit.
10. Here in this case, the defendant No.1(b , c) strongly
opposing the withdrawal of the suit and this suit is filed for
partition in which they also have the relief as the same relief
sought by the plaintiff and proceed to pass the following:
32
ORDER
The memo filed by the plaintiff to withdraw the suit is
hereby dismissed."
(Emphasis added)
The concerned Court was answering a memo filed by the plaintiff
seeking to withdraw the suit. The memo comes to be rejected
following the judgment of the division bench in the case of
SMT.GOWRAMMA (supra) holding that the plaintiff may be the
master of her plaint, but in a suit for partition, the plaintiff and
defendants are on equal footing and, therefore, the memo comes to
be rejected.
17. In the present suit, respondent Nos.1 and 2 - the
objectors to the withdrawal of the suit, have clearly
articulated their intent to pursue their lawful claim to the
properties in question. The concerned Court in consonance
with the well settled position of law, rightly permitted their
transposition as plaintiffs. To permit withdrawal in the face
of such objections, would amount to denial of justice to
those who still seek adjudication in a suit for partition.
Thus, the unmistakable inference is, sustainability of the order and
unsustainability of the claim of the plaintiffs.
18. Finding no infirmity much less, perversity in the order,
this Court declines to interfere in its revisional jurisdiction of this
Court under Section 115 of the Code of Civil Procedure.
19. The Civil Revision Petition is thus, rejected.
I.A.Nos.1 and 2 of 2025, are disposed, as a consequence.
Sd/-
(M.NAGAPRASANNA)
JUDGE
NVJ
CT:MJ
