SHRI. MOOGAPPA v. THIPPERUDRAPPA

5. SMT. MANJAMMA D/O. BASALINGAMMA, W/O. HALESHA, AGE: 40 YEARS, OCC: HOUSEHOLD WORK, R/O: HARIJANAKERE, ARASIKERE, TQ: HARAPANAHALLI, DIST: DAVANAGERE-583135.

6. SMT. THIPPAKA D/O. BASALINGAMMA, W/O. KARIBASAPPA, AGE: 33 YEARS, OCC: HOUSEHOLD WORK, R/O: BAYALA THUMBRAGUDDI VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135. (BY SRI. ROHIT S. PATIL, ADVOCATE) …PETITIONERS SAROJA HANGARAKI HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2024:KHC-D:14333 WP No. 116848 of 2019 AND:

1. THIPPERUDRAPPA S/O. SIDDALINGAPPA, (SINCE DECEASED R/BY HIS LRS)

9. SMT. DEVAMMA W/O. A. THIPPERUDRAPPA, AGE: 71 YEARS, VEERANNA S/O. A. THIPPERUDRAPPA, AGE: 46 YEARS, VENKATESH S/O. A. THIPPERUDRAPPA, AGE: 46 YEARS, SRINIVASA S/O A. THIPPERUDRAPPA, AGE: 43 YEARS, NAGARAJ S/O. A. THIPPERUDRAPPA, AGE: 41 YEARS, RAJESH S/O. A. THIPPERUDRAPPA, AGE: 39 YEARS, SMT. LAKSHMI D/O. LATE A. THIPPERUDRAPPA, THROUGH 1ST WIFE BASALINGAMMA AGE: 55 YEARS. SMT. JAYALAKSHMI 3RD WIFE OF LATE A. THIPPERUDRAPPA AGE: 75 YEARS, (RESPONDENTS NO.1 TO 8 ARE AGRICULTURIST R/O. BANAVIKALLU VILLAGE IN KUDLIGI TALUK BALLARI DISTRICT) ODA DURUGAPPA S/O. JOGAPPA, AGE: 63 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135. - 3 - NC: 2024:KHC-D:14333 WP No. 116848 of 2019

13. HONNAMMA W/O. EERAPPA, AGE: 71 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135. SARAPPA S/O. ERAPPA, AGE: 4 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135. THIPPAMMA W/O. THIPPESWAMY, AGE: 45 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135. MARISWAMY S/O. THIPPESWAMY, AGE: 20 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135.

14. KOMARAPPA S/O. JOGAPPA, (SINCE DECEASED R/BY HIS LR’S) 14(A) SMT. CHAITRA W/O. KOMARAPPA, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135.

17. BASAMMA W/O. NINGAPPA, AGE: ABOUT 65 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135. ADIVEMMA W/O. BASAPPA, AGE: 60 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583218. YALLAMMA W/O. KUNTA ERAPPA, AGE: 68 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135.

18. NAGAMMA W/O. OOKA EERAPPA, - 4 - NC: 2024:KHC-D:14333 WP No. 116848 of 2019

23. AGE: 65 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135. YALLAMMA W/O. MARIYAPPA, AGE: 70 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135. SHANTAMMA W/O. MOOGAPPA, AGE: 65 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135. MOOGAPPA S/O. MUDDE RANGAPPA, AGE: 30 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135. NAGARAJ S/O. MUDDE RANGAPPA AGE: ABOUT 28 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135. BASAVARAJA S/O. MUDDE RANGAPPA, AGE: ABOUT 26 YEARS, OCC: AGRICULTURIST, R/O: BANAVIKALLU VILLAGE, TQ: KUDLIGI, DIST: BALLARI-583135. …RESPONDENTS (DISPENSATION OF SERVICE OF NOITCE IN R/O. R1, R2 & R6 IS ACCEPTED; R3-R5, R8-R13 & R14(A) & R15-R23 SERVED & UNREPRESENTED; R7-NOTICE DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE ORDER ON I.A.NO.1 DATED 27.11.2019 IN FDP 6/2016 ON THE FILE OF CIVIL JUDGE AND JMFC COURT KUDLIGI VIDE ANNEXURE-D AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: - 5 - NC: 2024:KHC-D:14333 WP No. 116848 of 2019 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE H.P.SANDESH) Heard the learned counsel for the petitioner.

2. The notice has been served on the respondents and they have remained unrepresented. The prayer sought in this writ petition is to quash the order on I.A No.1/2018, dated 27.11.2019, passed in FDP No.6/2016, on the file of Civil Judge and JMFC Court, Kudligi, Bellary District, vide Annexure-D, which was filed under Order I Rule 10(2) r/w Section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) to come on record by respondent Nos.9 to 23.

3. The main contention of the counsel that the petitioner was the defendant in O.S No.62/2009 and preliminary decree came to be passed on 05.11.2015. It is contended that the petitioners have also filed FDP No.6/2016 and in the said FDP proceedings application I.A No.1/2019 is filed under Section 151 of the CPC and this application was also resisted by filing statement of - 6 - NC: 2024:KHC-D:14333 WP No. 116848 of 2019 objections and the Trial Court committed an error in allowing the said application and hence, the present petition is filed.

4. The main contention of the learned counsel for the petitioner that the Trial Court in a casual manner allowed the application without assigning the sufficient reason for impleading proposed respondents and the very approach of the Trial Court is erroneous. The Trial Court failed to observe that the determination of sale of the proposed respondents is not yet been done and without that the question of impleading proposed respondents in the final decree proceedings does not arise. The proposed respondents have right to claim in respect of family properties towards the branch of Siddalingappa which has not been properly considered by the Trial Court and hence, it requires interference.

5. Having heard learned counsel petitioner and also having considered the reason assigned by the Trial Court while allowing the application, the Trial - 7 - NC: 2024:KHC-D:14333 WP No. 116848 of 2019 Court comes to the conclusion that the proposed respondents have contended that without arraying them as parties to the suit in O.S No.62/2009, the plaintiff and defendants have obtained collusive decree and the proposed defendants are also joint family members of the plaintiff and defendants in O.S No.62/2009.

6. The counsel would vehemently contend that in the statement of objections specifically taken contention that the proposed impleading applicants are not the relatives of the plaintiff and defendants and there is no any relationship between them. On perusal of the entire statement of objection nowhere they have denied that they are not the joint family members except that they are not the relatives and the said fact is taken note by the Trial Court in the application. It is specifically stated that the plaintiffs and defendants in the said suit suppressing other coparceners and by furnishing partial and false genealogy before the Trial Court, obtained the preliminary decree as they are the family members and they have - 8 - NC: 2024:KHC-D:14333 WP No. 116848 of 2019 been excluded while filing the suit and obtained the decree. When such specific averments are made that they are also the other coparceners, the same has not been denied. When such being the case, the very contention of the petitioners’ counsel that the Trial Court has committed an error cannot be accepted. The FDP proceeding is the continuous proceedings of the suit and shares can be demarcated and modified in the said proceedings. When the impleading applicants specifically claim that they are joint family members and they have not been arrayed either as plaintiffs or defendants and obtained the decree, the Trial Court has not committed any error in allowing the application. Hence, I do not find any error committed by the Trial Court in allowing the application as the right of the proposed respondents has also to be adjudicated in a continuous proceedings i.e., in FDP. Hence, I do not find any ground to quash the impugned order.

7. The counsel also brought to the notice of this Court that the impleading applicants have also filed a suit - 9 - NC: 2024:KHC-D:14333 WP No. 116848 of 2019 in O.S.No.9/2016 and the same is filed before the same Court. Hence, both FDP proceedings and this suit may be considered together.

8. In view of the discussions made above, I pass the following: ORDER Writ petition is dismissed. The Trial Court is directed to consider FDP and the suit filed by the proposed applicants in O.S.No.9/2016 together and dispose of both within a period of one year from today The respective parties and counsel are directed to assist the Trial Court in disposal of the matter within the time stipulated. Sd/- (H.P.SANDESH) JUDGE PMP paa 1 to 5 NAA para 6 to end CT-MCK/List No.: 2 Sl No.: 5