W.P.No.223782/2020

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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 29^TH DAY OF JANUARY, 2021

BEFORE

THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ

WRIT PETITION No.223782/2020 (GM-CPC)

BETWEEN:

1.

Namdev S/o Rekhu Rathod

Aged about 59 years

Occ: Agriculture

R/o Gondikeri Thanda

Srinivas Saradagi

Tq. & Dist. Kalaburagi.

2.

Heeru S/o Rekhu Rathod

Aged about 55 years

Occ: Agriculture

R/o Gondikeri Thanda

Srinivas Saradagi

Tq. & Dist. Kalaburagi.

... Petitioners

(By Sri Venkatesh C. Mallabadi, Advocate

for Ameet Kumar Deshpande)

AND:

1.

Jagadevi D/o Hanmanth

@ Hanmanthappa Natikar

W/o Shivanand Jamadar

Aged about 45 years

Occ: Household & Agriculture

W.P.No.223782/2020

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R/o Chiknagaon

Tq. Basavakalyan

Dist. Bidar-585327

2.

Heerabai W/o Late Hanmanth

@ Hanmanthappa Natikar

Aged major

Occ: Household & Agriculture

R/o Srinivas Saradagi

Taluk & Dist. Kalaburagi-585106.

3.

Sharanappa S/o Late Hanmanth

@ Hanmanthappa Natikar

Aged about 55 years

Occ: Pvt. Service

R/o Srinivas Saradagi

Presently R/o Hotel Sudarshan

Opposite to RTO office

Chourasta Ummerga-413606

(Maharashtra State)

4.

Rukmani D/o Hanmanth

@ Hanmanthappa Natikar

W/o Ashok Natikar

Aged about 52 years

Occ: Household & Agriculture

R/o H.No.601

Jagan Patil Chawl Nocil Naka

Belapur Road, Thane

Mumbai (Maharashtra State)-400605.

5.

Neelamma W/o Sharanappa Natikar

Aged about 52 years

Occ: Household

R/o Donnur, Tq. Aland

Dist. Kalaburagi-585302.

... Respondents

W.P.No.223782/2020

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This Writ Petition is filed under Article 227 of the

Constitution of India, praying to issue a writ of certiorari to

quash the order dated 09.01.2020 passed on I.A.No.7 in

F.D.P.No.21/2013 on the file of the I Addl. Senior Civil

Judge, Kalaburagi, the certified copy of which is at

Annexure-F.

This petition coming on for Preliminary Hearing, this

day, the Court made the following:

ORDER

1.

The petitioners are before this Court seeking to

quash the order dated 09.01.2020 passed on

I.A.No.7 in FDP No.21/2013 by the 1^st Additional

Senior Civil Judge, Kalaburagi.

2.

The respondent Nos.1 and 2 being the plaintiffs

having succeeded in the suit for partition had

initiated final decree proceedings in FDP No.21/2013

for the purpose of enforcing the said preliminary

decree passed in O.S.No.77/2004. In the said final

decree proceedings, an application under Order 20

Rule 18 of CPC has been filed by the petitioners

W.P.No.223782/2020

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seeking for amendment of the property subject

matter of the preliminary decree to modify the same

from 544/2 to 544/3 which came to be opposed by

the petitioners herein. However, the Court allowed

the same holding that if at all, the petitioners have

any dispute and/or contention as regards the

amendment, the said application to be treated as

plaint by the petitioner herein, respondent therein

could file their objection, if necessary, issues be

framed and determine the matter.

3.

Sri Venkatesh C.Mallabadi, learned counsel for the

petitioners would submit that once a preliminary

decree is passed and it has attained finality, there

cannot be any change made in the preliminary

decree and as such the Final Decree Court ought not

to have considered the I.A.No.7 as plaint.

4.

Heard, Sri Venkatesh C. Mallabadi, learned counsel

for the petitioners and perused the application.

W.P.No.223782/2020

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5.

A perusal of the application filed under Order 20 Rule

18 by the decree holders respondent Nos.1 and 2

herein would indicate that after passing of the

preliminary decree, when the final decree Court

forwarded the same to the Tahsildar, taluka surveyor

Kalaburagi for effecting partition that the said

surveyor came to know of the owners of the other

land in Sy.No.544 having challenged the Hissa Phodi

effected in the said survey. In pursuance of the

same, the Deputy Director of Land Records by its

order dated 12.08.2009 in Appeal No.16/2009-10

modified and c