In a partition suit, unilateral withdrawal by a plaintiff is not permitted if it adversely affects defendants' rights; defendants can assert claims by transposing themselves as plaintiffs.

ORDER :

M. NAGAPRASANNA, J.

Heard Sri.Shivaraju M.K., learned counsel appearing for the petitioner, Sri.Lakshmikanth K., learned counsel appearing for respondent Nos.1 and 2 and have perused the material on record.

2. The petitioner is the plaintiff, institutes a suit for partition, seeks dismissal of the suit as not pressed. The defendants then file an application seeking transposition as plaintiffs. The suit is for partition. In a suit for partition, the difference between the plaintiff and the defendant is illusory as everybody would get a share in the suit schedule property. Therefore, the application for transposition comes to be allowed. This is what is challenged before this Court.

3. This court in SHESHAMMA vs. RAMESH KUMAR AND ANOTHER , 2025 SCC OnLine Kar 14708, at paragraphs 9, 10, 13 to 17 has held as follows:

"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.

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, [(1996) 4 SCC 699 : 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)