SHRI TIMMASAHEB S/O RAM KRISHNA RAO PATIL vs SMT BHARATI W/O RAMNAIK PATIL
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT DHARWAD
R
TH
DATED THIS THE 29 DAY OF AUGUST, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.106590 OF 2026 (GM-CPC)
BETWEEN:
SHRI TIMMASAHEB S/O RAM KRISHNA RAO PATIL,
AGE: 56 YEARS, OCC AGRICULTURIST,
R/O. GULBAL, TQ. AND DIST: BAGALKOT-587117.
… PETITIONER
(BY SRI. M.S. HALLIKERI, ADVOCATE)
AND:
1. SMT. BHARATI W/O RAMNAIK PATIL,
AGE: 45 YEARS, OCC. HOUSEHOLD,
R/O. SHIVAPATE AURAD HEADPOST,
TQ. RAMDURG, DIST. BELAGAVI-591123.
2. CHANDRAKANTH S/O RAMKRISHNA RAO PATIL,
AGE: 52 YEARS, OCC. AGRICULTURE,
R/O. GULBAL, TQ. AND DIST. BAGALKOT-587117.
3. NEELABAI D/O RAMKRISHNARAO PATIL
@ NEELABAI W/O SUNIL NAIK,
AGE: 40 YEARS, OCC. HOUSEHOLD,
R/O. HOSPET GALLI, GOKAK,
DIST. BELAGAVI-591307.
… RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT, ORDER
OR DIRECTION IN THE NATURE OF CERTIORARI BY QUASHING THE
IMPUGNED ORDER DATED 08.07.2026 PASSED ON I.A. NO.19 AND
20 IN O.S. NO.222/2022 BY THE COURT OF I ADDL. SENIOR CIVIL
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JUDGE AND JMFC BAGALKOTE VIDE ANNEXURE-K AND
CONSEQUENTLY REJECT THE I.A. NO.19 AND 20 VIDE ANNEXURE-G
AND H IN THE INTEREST OF JUSTICE AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
The captioned writ petition is filed assailing the common
orders passed on I.A.Nos.19 and 20 filed by defendant No.3
under Order VIII Rule 1A of the Code of Civil Procedure, 1908
(for short, ‘the CPC’) and the application filed under Order VIII
Rule 9(6) read with Order VIII Rule 6A and Section 151 of the
CPC.
2. Heard the learned counsel for the petitioner.
Perused the impugned order as also the written statement filed
by respondent No.1/defendant No.3 and the additional written
statement filed by defendant No.3, whereby she has sought
inclusion of certain additional properties and claimed a share
therein by filing the aforesaid applications. The said applications
have been allowed by the learned Trial Court, which order is
called in question in the present writ petition.
Digitally Signed by SACHIN
SHANKAR MAGADUM
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3. Before proceeding further, it would be appropriate
to extract the family tree furnished along with the plaint, which
reads as under:
Ramkrishna Rao Patil (deceased)
Shantabai W/o Ramkrishna Rao Patil (deceased) on 05/10/2010
Neelabhai Timmasab Chandrakanth Bharathi
Plaintiff Defendant.1 Defendant.2 Defendant.3
4. One Neelabhai, who is the plaintiff and sister of the
present petitioner and respondent No.3, instituted O.S.No.222
of 2022 seeking partition and separate possession. The present
petitioner is arrayed as defendant No.1, while the other
contesting sister, namely Bharathi, is arrayed as defendant
No.3.
5. Defendant No.3 entered appearance and filed her
written statement. Significantly, she admitted the claim of the
plaintiff and also sought determination of her legitimate share
in the suit properties. In substance, therefore, the written
statement filed by defendant No.3 assumed the character of a
Digitally Signed by SACHIN
SHANKAR MAGADUM
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claim for partition. In a partition suit, a defendant who supports
the plaintiff and asserts an independent right to a share, upon
payment of the requisite Court fee, cannot be treated merely as
a contesting defendant, but has to be regarded as a co-plaintiff
for all practical purposes.
6. During the pendency of the suit, the present
petitioner/defendant No.1 entered into a settlement with the
plaintiff, pursuant to which the plaintiff withdrew her claim in
the suit. It is subsequent to such withdrawal that defendant
No.3 filed an additional written statement, which is produced at
Annexure-F, seeking to bring on record certain additional
properties and claiming partition and separate possession
therein. The said additional written statement has been
nomenclatured as a counter claim under Order VIII Rule 6A of
the CPC.
7. The learned counsel appearing for the
petitioner/defendant No.1 would contend that once a counter
claim has already been raised, defendant No.3 could not have
been permitted to introduce a further or additional counter
claim by way of an additional written statement. According to
Digitally Signed by SACHIN
SHANKAR MAGADUM
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the petitioner, the learned Trial Court has, in substance,
permitted defendant No.3 to raise an additional counter claim,
which is impermissible in law.
8. The contention, in the considered opinion of this
Court, proceeds on an erroneous understanding of the nature of
proceedings in a partition suit. In this regard, it would be
apposite to extract the first written statement filed by
defendant No.3, which is evidenced at Annexure-C. Paragraph
Nos.1 to 5 are relevant. The same is extracted which reads as
under;
“1) ªÁ¢AiÀÄÄ ¸ÀzÀj zÁªÉAiÀÄ£ÀÄß ¥ÀæwªÁ¢AiÀÄgÀ «gÀÄzÀÞ vÀ£Àß 1/4 »¸ÉìAiÀÄ£ÀÄß PÉý
zÁªÉ ¸À°è¹zÀÄÝ ¤d«gÀÄvÀÛzÉ.
2) zÁªÁ D¹ÛUÀ¼ÀÄ ªÁ¢ ºÁUÀÆ ²æêÀÄw ±ÁAvÁ¨Á¬Ä gÁªÀÄPÀȵÀÚgÁªÀ ¥Ánî
EªÀgÀÄ ¸À£ï-2003 gÀ°è Rjâ¹zÀÄÝ ¤d«gÀÄvÀÛzÉ. ¸ÀzÀj D¹ÛUÀ¼À°è £À£ÀßzÀÄ 1/4
»¸Áì ¥Á®Ä EgÀÄvÀÛzÉ.
3) ªÁ¢ ªÀÄvÀÄÛ £Á£ÀÄ ¸ÀºÉÆÃzÀjAiÀÄgÀÄ EgÀÄvÉÛêÉ. CzÉà jÃwAiÀiÁV ¥ÀæwªÁ¢ £ÀA:1
ªÀÄvÀÄÛ 2 EªÀgÀÄ £ÀªÀÄä ¸ÀºÉÆÃzÀgÀgÀÄ EgÀÄvÁÛgÉ. ªÁ¢AiÀÄÄ ºÁdgÀÄ¥Àr¹zÀ
ªÀA±ÁªÀ½AiÀÄÄ ¤d«gÀÄvÀÛzÉ.
4) £ÀªÀÄä ªÀÄ£ÉvÀ£ÀzÀ°è zÁªÁ D¹ÛUÀ¼À°è AiÀiÁªÀÅzÉà jÃw¬ÄAzÀ ¥Á®ÄªÁnß
DVgÀĪÀ¢®è. 1£Éà ¥ÀæwªÁ¢AiÀÄÄ PÀAzÁAiÀÄ C¢üPÁjUÀ¼ÉÆA¢UÉ «Ä¯Á¦AiÀiÁV
¸ÀȶֹPÉÆAqÀ "qÀ" £ÀA:JZï-3/2013-14 EzÀÄ ¨Éà PÁAiÉÄݲÃj¬ÄAzÀ ªÀiÁrPÉÆAqÀ
zÁR¯É EgÀÄvÀÛzÉ. EzÀÄ £À£Àß ªÉÄÃ¯É §AzsÀ£ÀPÁgÀPÀ EgÀĪÀ¢®è. ªÀÄvÀÄÛ zÁªÁ
D¹ÛUÀ¼À°è £À£ÀßzÀÄ 1/4 »¸Áì ¥Á®Ä EzÀÄÝ, CzÀ£ÀÄß ªÉÄ|| £ÁåAiÀiÁ®AiÀÄzÀªÀgÀÄ £À£ÀUÉ
¥ÀævÉåÃPÀªÁV «AUÀr¹PÉÆqÀ®Ä DzÉñÀ ªÀiÁqÀ¨ÉÃPÀÄ.
5) £Á£ÀÄ ¸ÀzÀj zÁªÉAiÀÄ°è £À£Àß ¥Á°£À ºÀt PÉÆÃlð ¦üà ºÀtªÀ£ÀÄß vÀÄA§®Ä
¹zÀݤgÀÄvÉÛãÉ. CzÀÝjAzÀ ªÉÄ|| £ÁåAiÀiÁ®AiÀÄzÀªÀgÀÄ £À£Àß PÁ£ÀÆ£ÀħzÀÞ 1/4 »¸ÉìAiÀÄ£ÀÄß
¥ÀævÉåÃPÀªÁV PÉÆr¸À®Ä «£ÀAw EgÀÄvÀÛzÉ CAvÁ ¸À°è¹zÀ PÉʦüAiÀÄvï.”
Digitally Signed by SACHIN
SHANKAR MAGADUM
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9. A perusal of the aforesaid written statement makes
it evident that defendant No.3 did not dispute the plaintiff’s
claim. On the contrary, she supported the claim and asserted
her own entitlement to a one-fourth share in the suit
properties. She also expressed her readiness to pay the
requisite Court fee and sought a decree for separate possession
of her legitimate share.
10. The aforesaid written statement, though strangely
treated and nomenclatured as a counter claim, essentially
partakes of the character of a plaint in a partition action. In a
suit for partition, the nomenclature assigned to a party is not
decisive of the nature of the relief sought. A party arrayed as a
defendant, upon supporting the plaintiff’s claim and seeking
determination of his or her own share upon payment of the
requisite Court fee, would, for all practical purposes, stand in
the position of a co-plaintiff.
11. This position assumes greater significance in
partition proceedings. A partition suit is not merely an
adversarial contest between a plaintiff and defendants. The
very nature of the relief requires the Court to determine the
Digitally Signed by SACHIN
SHANKAR MAGADUM
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shares of all the co-sharers and, ordinarily, to bring all the
properties available for partition within the scope of the
proceedings. Therefore, when a defendant supports the plaintiff
and asserts an independent right to partition, the Court cannot
lose sight of the substantive nature of such a claim merely
because the party continues to be described as a defendant in
the cause title.
12. It is in this backdrop that the subsequent events in
the present case have to be considered. The plaintiff, after
entering into a settlement with defendant No.1, withdrew her
claim. The withdrawal of the plaintiff’s claim, however, did not
bring the entire lis to an end, since defendant No.3 had already
asserted her independent claim for partition by filing the
written statement and by undertaking to pay the requisite
Court fee.
13. Defendant No.3, thereafter, appears to have traced
certain additional properties which, according to her, are also
liable to be brought into the hotchpot for the purpose of
partition. Consequently, she filed the additional written
Digitally Signed by SACHIN
SHANKAR MAGADUM
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statement at Annexure-F seeking inclusion of such properties
and determination of her share therein.
14. The principal objection of the petitioner is that
defendant No.3 has, in substance, been permitted to introduce
an additional counter claim. This Court is unable to accept the
said contention. The additional claim made by defendant No.3
cannot be viewed in isolation as an independent counter claim.
It has to be examined in the context of the nature of the
original proceedings, namely, a suit for partition, and the
substantive claim already raised by defendant No.3 seeking her
legitimate share.
15. In a partition suit, the endeavour of the Court must
be to effectively and comprehensively determine the rights and
shares of the co-sharers in respect of all properties which are
available for partition. It is trite that a suit for partial partition
is ordinarily not maintainable when the properties sought to be
partitioned constitute part of a larger joint family estate.
Therefore, merely because certain properties were not initially
included in the plaint would not, by itself, compel a party
asserting a right therein to institute a fresh suit, particularly
Digitally Signed by SACHIN
SHANKAR MAGADUM
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when the pending proceedings can be suitably amended to
bring the entire dispute before the Court.
16. The initial burden, however, necessarily rests upon
defendant No.3, who seeks inclusion of the additional
properties, to establish that such properties are also joint
family/ancestral properties and are liable to be partitioned
amongst the parties. Once such foundational facts are asserted
and brought on record, the burden may shift upon the party
disputing the nature of those properties, depending upon the
nature of the defence raised.
17. The learned Trial Court, having considered the rival
contentions, has proceeded on the premise that the suit is one
for partition and that all properties which are liable to be
partitioned ought, as far as possible, to be brought within the
scope of the same proceedings. This Court finds no perversity
or jurisdictional error in the said approach.
18. In fact, after the plaintiff withdrew her claim, the
appropriate course perhaps would have been for the learned
Trial Court to consider transposing defendant No.3 as the
Digitally Signed by SACHIN
SHANKAR MAGADUM
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plaintiff, particularly since she had already asserted an
independent claim for partition and had paid or undertaken to
pay the requisite Court fee. Such transposition would have
obviated the procedural complications arising out of the
withdrawal of the original plaintiff.
19. Be that as it may, the mere fact that defendant
No.3 continues to be described as a defendant cannot defeat
her substantive claim for partition. Once she had entered the lis
by supporting the plaintiff’s claim and asserting her own
entitlement to a share, the subsequent withdrawal of the
plaintiff could not, by itself, extinguish the claim of defendant
No.3.
20. The contention that, upon withdrawal of the original
suit by the plaintiff, defendant No.3 ought necessarily to be
relegated to the remedy of filing a fresh comprehensive suit
also cannot be accepted. Such a course would result in
multiplicity of proceedings, particularly when all the concerned
parties are already before the Court and the controversy
relating to the properties and their respective shares can
effectively be adjudicated in the pending proceedings.
Digitally Signed by SACHIN
SHANKAR MAGADUM
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21. The approach of relegating defendant No.3 to a
fresh suit would also result in duplication of proceedings and
wastage of valuable judicial time. The Hon’ble Supreme Court
in Sampath Kumar v. Ayyakannu and Another, reported in
(2002) 7 SCC 559, has emphasised the need to avoid
multiplicity of proceedings and to permit appropriate
amendments so that the real controversy between the parties
is effectively adjudicated in the pending proceedings.
22. Merely because a party may, in a given
circumstance, institute a fresh suit, it does not follow that the
Court should invariably compel such party to pursue a separate
proceeding. Where the core dispute can be comprehensively
adjudicated in the pending suit, particularly a partition suit, the
Court ought to adopt an approach which avoids multiplicity of
litigation and facilitates complete adjudication of the rights of
the parties.
23. In the present case, the additional written
statement filed by defendant No.3 is required to be considered
in the aforesaid factual and legal background. The same cannot
be mechanically characterised as an additional counter claim
Digitally Signed by SACHIN
SHANKAR MAGADUM
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merely because the earlier written statement had been
nomenclatured as a counter claim. The substance of the claim
and the nature of the proceedings are required to be kept in
view.
24. This Court, therefore, finds no infirmity in the
impugned common orders passed by the learned Trial Court
permitting defendant No.3 to bring the additional properties on
record. The contention of the petitioner that defendant No.3
has been permitted to raise an additional counter claim,
thereby rendering the proceedings impermissible in law, is
based on a misconception of the nature of a partition action.
25. It is, however, made clear that the permission
granted to defendant No.3 to bring the additional properties on
record shall not, by itself, amount to an adjudication that the
said properties are joint family or ancestral properties or that
defendant No.3 has any share therein. All such questions are
required to be adjudicated by the learned Trial Court after
affording due opportunity to the contesting parties.
Digitally Signed by SACHIN
SHANKAR MAGADUM
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26. Defendant No.3 shall, therefore, have the initial
burden of establishing that the additional properties sought to
be included are liable to be brought into the partition
proceedings. The present petitioner/defendant No.1 shall be at
liberty to file her rejoinder/additional written statement and
contest the nature, character and availability of the said
properties for partition.
CONCLUSIONS
27. Having regard to the nature of the suit and the
pleadings placed on record, this Court is of the considered view
that the written statement filed by defendant No.3 cannot be
examined merely by its nomenclature. Though the same has
been described as a counter claim, the substance of the
pleading discloses that defendant No.3 has accepted the
plaintiff’s claim for partition and, in addition, asserted her own
independent entitlement to a share in the joint family
properties. Having paid the requisite Court fee and sought a
decree for partition and separate possession, defendant No.3
has, in substance, placed herself in the position of a co-plaintiff,
Digitally Signed by SACHIN
SHANKAR MAGADUM
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notwithstanding her description as defendant No.3 in the cause
title.
28. In a partition suit, the rights of the parties do not
depend entirely upon the plaintiff prosecuting the action. The
cause of action is founded upon the assertion of a right to
partition and separate possession of the joint family properties.
Once another co-sharer, who is arrayed as a defendant,
accepts the claim for partition and asserts her own right to a
share, the lis acquires an independent dimension insofar as
such defendant is concerned. The withdrawal of the original
plaintiff cannot, therefore, ipso facto extinguish the
independent claim already asserted by such co-sharer.
29. The expression “counter claim” occurring in Order
VIII Rule 6A of the CPC has to be understood in the context of
the nature of the proceedings. A counter claim ordinarily
enables a defendant to assert a claim against the plaintiff which
can be adjudicated in the same proceedings. However, in a
partition action, where a defendant supports the plaintiff and
seeks allotment of his or her own share in the very estate
which is the subject matter of the suit, such a claim has a
Digitally Signed by SACHIN
SHANKAR MAGADUM
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distinctive character. The Court is required to look to the
substance of the pleading and the relief sought rather than
merely the nomenclature assigned to it.
30. The subsequent pleading filed by defendant No.3,
therefore, cannot be rejected merely on the ground that it
amounts to a “second counter claim”. If the additional
properties are asserted to be part of the same joint family
estate and are necessary for an effective and complete
adjudication of the partition, the Court is entitled to consider
their inclusion in the pending proceedings, subject to the rights
of the other parties to contest the nature and character of
those properties.
31. More importantly, the withdrawal of the original
plaintiff’s claim does not result in the automatic termination of
the entire lis when another co-sharer has already asserted an
independent claim for partition. The right asserted by
defendant No.3 is not derived from the plaintiff’s willingness to
prosecute the suit. It is her own substantive right as a co-
sharer. Once such right has been asserted in the pending
proceedings and the requisite Court fee has been paid, the
Digitally Signed by SACHIN
SHANKAR MAGADUM
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withdrawal of the original plaintiff cannot be permitted to
defeat or extinguish that claim.
32. The consequence of the plaintiff’s withdrawal, in
such circumstances, is essentially procedural and not
substantive. The Court may, depending upon the facts and
stage of the proceedings, consider transposing the defendant
who is prosecuting an independent claim for partition as the
plaintiff, or otherwise permit the proceedings to continue on the
basis of the claim already brought before the Court. What
cannot be accepted is that withdrawal by the original plaintiff
should compel the remaining co-sharer to institute an entirely
fresh suit, notwithstanding that the parties, properties and
foundational dispute are already before the Court.
33. Such an approach is particularly necessary in a
partition suit because the object of the proceedings is to bring
the entire joint family estate and the rights of all necessary co-
sharers before the Court and to finally determine their
respective shares. If the proceedings are terminated merely
because the original plaintiff chooses to withdraw, despite an
independent claim having been asserted by another co-sharer,
Digitally Signed by SACHIN
SHANKAR MAGADUM
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it would result in multiplicity of proceedings and may also lead
to inconsistent findings in subsequently instituted litigation.
34. The Court, therefore, has to balance procedural
rules with the substantive nature of a partition action.
Procedural nomenclature cannot be permitted to defeat a
substantive right which has already been asserted in the
pending suit. The proper course is to permit the pending
proceedings to continue, subject to appropriate alteration in the
array of parties, pleadings and issues, wherever necessary, so
as to ensure complete and effective adjudication of the
surviving claim for partition.
35. In the present case, defendant No.3 had asserted
her entitlement to a share even before the plaintiff withdrew
the suit. Her claim, therefore, constituted a surviving and
independent claim for partition. The subsequent withdrawal by
the plaintiff did not efface that claim. The learned Trial Court
was consequently justified in considering the further pleading of
defendant No.3 in the context of the pending partition
proceedings rather than driving her to a separate suit.
Digitally Signed by SACHIN
SHANKAR MAGADUM
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36. At the same time, permitting the additional
properties to be brought on record shall not be construed as an
adjudication regarding their character or their availability for
partition. Defendant No.3, being the party seeking their
inclusion, must establish the foundational facts necessary to
show that such properties form part of the estate liable to
partition. The petitioner and other parties shall be entitled to
contest the same on all available grounds.
37. Consequently, the objection that defendant No.3’s
claim stood extinguished upon withdrawal of the original
plaintiff’s suit, or that she was necessarily required to institute
a fresh suit, cannot be accepted. The surviving claim of
defendant No.3 for partition constitutes a continuation of the lis
already pending before the Court and can appropriately be
adjudicated in the same proceedings, subject to compliance
with the requirements of pleadings, Court fee and framing of
appropriate issues.
38. It is accordingly held that the written statement
filed by defendant No.3, though described as a counter claim, is
required to be construed in substance as an assertion of her
Digitally Signed by SACHIN
SHANKAR MAGADUM
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independent right to partition, the subsequent additional
pleading is not liable to be rejected merely because it is
described as an additional counter claim, and the withdrawal of
the original plaintiff does not, by itself, terminate the surviving
cause of action of a co-sharer who has already asserted an
independent claim for partition in the pending suit.
39. For the foregoing reasons, this Court is of the
considered view that the impugned orders do not suffer from
any perversity, illegality or jurisdictional infirmity warranting
interference in exercise of the writ jurisdiction of this Court.
40. Accordingly, this Court proceeds to pass the
following:
ORDER
(i) The writ petition is dismissed .
(ii) It is made clear that the present
petitioner/defendant No.1 shall be entitled to file
her rejoinder/additional written statement in
response to the additional written statement filed
Digitally Signed by SACHIN
SHANKAR MAGADUM
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by defendant No.3. Upon receipt of the same, the
learned Trial Court shall consider the additional
written statement filed by defendant No.3 and
the rejoinder/additional written statement filed
by defendant No.1.
(iii) If, on account of inclusion of the additional
properties, any fresh issues arise for
consideration, the learned Trial Court shall frame
appropriate additional/fresh issues in respect of
such properties and thereafter proceed with the
suit in accordance with law.
(iv) All contentions of the parties are kept open.
(v) No opinion expressed herein shall be construed
as an adjudication on the title, nature or
character of the additional properties or on the
respective shares of the parties therein. The
learned Trial Court shall decide the same
independently, on the basis of the pleadings and
Digitally Signed by SACHIN
SHANKAR MAGADUM
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evidence placed before it, uninfluenced by any
observations made in this order.
Digitally Signed by SACHIN
SHANKAR MAGADUM
(SACHIN SHANKAR MAGADUM)
JUDGE
AM/-
CT:BCK
List No.: 1 Sl No.: 6