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IN THE HIGH COURT OF DHARWAD BENCH

Dated this the 13 th day of February 2014

Before

THE HON’BLE MR. JUSTICE N. KUMAR

WRIT PETITION NO.63884 OF 2012 (GM-CPC)

BETWEEN

1. SHRISHAIL S/O DODDA IRAPPA @ IRAPPA HEJJIGAR AGE: 14 YEARS, OCC: STUDENT, R/BY HIS NEXT FRIEND NATURAL MOTHER NAMELY BHIMAVVA PETITONER NO.6 R/O , DIST:

2. UDDAPPA S/O DODDA IRAPPA @ IRAPPA HEJJIGAR AGE: 17 YEARS, OCC: STUDENT, REPRESENTED BY HIS NEXT FRIEND NATURAL MOTHER NAMELY BHIMAVVA PETITONER NO.6 R/O. GOKAK, DIST: BELGAUM

3. BHIMAVVA D/O. DODDA IRAPPA @ IRAPPA HEJJIGAR AGE: 27 YEARS, OCC: STUDENT, R/O. GOKAK, DIST: BELGAUM. : 2 :

4. IRAWWA D/O. DODDA IRAPPA @ IRAPPA HEJJIGAR AGE: 24 YEARS, OCC: STUDENT, R/O. GOKAK, DIST: BELGAUM.

5. IRAPPA S/O. DODDA IRAPPA @ IRAPPA HEJJIGAR AGE: 30 YEARS, OCC: STUDENT, R/O. GOKAK, DIST: BELGAUM.

6. BHIMAVVA W/O. DODDA IRAPPA @ IRAPPA HEJJIGAR AGE: 56 YEARS, OCC: AGRICULTUR R/O. GOKAK, DIST: BELGAUM ...PETITIONERS

(By SRI SHREEHARSH A.NEELOPANT, ADVOCATE)

AND

1. MALLAVVA W/O. UDDAPPA HEJJIGAR AGE: 86 YEARS, OCC: AGRICULTURE, R/O. LAKKADGALLI, GOKAK, DIST: BELGAUM.

2. DODDA IRAPPA @ IRAPPA HEJJIGAR AGE: 61 YEARS, OCC: AGRICULTURE, R/O. LAKKADGALLI, GOKAK, DIST: BELGAUM

3. IRAPPA S/O. AJJAPPA HEJJIGAR AGE: 18 YEARS, OCC: STUDENT, R/O. LAKKADGALLI, GOKAK, DIST: BELGAUM

4. GOURAWWA KALLAPPA KONNU AGE: 54 YEARS, OCC: HOUSEHOLD : 3 :

R/O., TQ: GOKAK, DIST: BELGAUM.

5. GOURAWWA W/O. BHIMAPPA SHINGALAPUR AGE: 61 YEARS, OCC: AGRICULTURE, R/O. UPPARHATTI, TQ: GOKAK, DIST: BELGAUM.

6. BHAGAWWA D/O. BHIMAPPA SHINGALAPUR AGE: 46 YEARS, OCC: AGRICULTURE, R/O. UPPARHATTI, TQ: GOKAK, DIST: BELGAUM.

7. DHAREPPA S/O. BHIMAPPA SHINGALAPUR AGE: 44 YEARS, OCC: AGRICULTURE, R/O. UPPARHATTI, TQ: GOKAK, DIST: BELGAUM.

8. JAGADISH S/O. BHIMAPPA SHINGALAPUR AGE: 41 YEARS, OCC: AGRICULTURE, R/O. UPPARHATTI, TQ: GOKAK, DIST: BELGAUM.

9. SATTEPPA S/O. BHIMAPPA SHINGALAPUR AGE: 38 YEARS, OCC: AGRICULTURE, R/O. UPPARHATTI, TQ: GOKAK, DIST: BELGAUM.

10. SHIPU @ SHIAPUTRAPPA S/O. BHIMAPPA SHINGALAPUR AGE: 26 YEARS, OCC: AGRICULTURE, R/O. UPPARHATTI, TQ: GOKAK, DIST: BELGAUM. : 4 :

11. SHIVAKKA D/O. BHIMAPPA SHINGALAPUR AGE: 34 YEARS, OCC: AGRICULTURE,

R/O. UPPARHATTI, TQ: GOKAK, DIST: BELGAUM.

12. SHNATAWWA D/O. BHIMAPPA SHINGALAPUR AGE: 31 YEARS, OCC: AGRICULTURE, R/O. UPPARHATTI, TQ: GOKAK, DIST: BELGAUM. ...RESPONDENTS

(BY SRI SANTOSH S HATTIKATAGI FOR R1; SRI SACHIN S. MAGADUM, ADVOCATE FOR R8;

(R2, 3, 4 ARE SERVED; (R5, 7, 9 AND 10 – SERVICE OF NOTICE HELD SUFFICIENT)

THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF PRAYING TO ISSUE A WRIT OR DIRECTION OR ORDER IN THE NATURE OF WRIT OF CERTIORARI TO SET-ASIDE THE ORDER DATED 24.03.2012 PASSED BY THE 1st ADDITIONAL SENIOR CIVIL JUDGE, GOKAK IN O.S.NO.12/2006 ON I.A. NO.11 FILED UNDER ORDER 6 RULE 17 OF CPC AS PER ANNEXURE-A AND ALLOW THE I.A.NO.11 DATED 21.11.2011, FILED BY THE PETITIONERS FOR AMENDMENT.

THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: : 5 :

O R D E R

The plaintiffs have filed a suit for partition and separate possession. In the body of the plaint, it is specifically averred that the decree passed in

O.S.No.256/2003 is a collusive one, it does not bind the plaintiffs to any extent and, therefore, the plaintiffs are entitled to a decree for partition and separate possession.

The said facts are denied. Issues have been framed.

Plaintiffs have adduced evidence. At that stage, an application was filed for amendment of the plaint to reiterate the aforesaid facts and also to seek relief of a declaration that the said decree is a nullity. The said application is dismissed. Aggrieved by the said order, the present writ petition is filed.

2. As, in the plaint, there is a reference to the said proceedings and the plaintiffs have specifically pleaded that it is a collusive decree void ab initio and does not affect their rights and therefore they want partition and separate : 6 :

possession. Now, the plaintiffs want to reiterate the same by way of amendment and also to incorporate an additional prayer seeking a declaration that the said decree is null and void.

3. In a suit for partition, if the plaintiff establishes that the schedule property is a joint family property and establishes the relationship between the parties and further establishes that there is no partition, he would be entitled to a decree. All alienations made or decrees obtained to which he plaintiff is not a party and which are collusive in nature would not come in the way of his enforcing his right to partition. No such declaration is specifically necessary because if a decree is obtained by collusion, it is void.

Therefore, the Trial Court rightly dismissed the amendment application. No merit. Petition dismissed.

SD/- JUDGE Kms