- 1 - NC: 2025:KHC-D:3656 WP No. 101342 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 101342 OF 2025 (GM-CPC) BETWEEN: SRI. KADAPPA SUBRAI KOCHARI, AGE: 72 YEARS, OCC: PENSIONER, R/O. NEAR POLICE STATION, GOKAK ROAD, HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309. …PETITIONER (BY SRI. S.H. MITTALKOD, ADVOCATE) AND: 1. SMT KALLAWA SINCE DEAD BY HER LRS 1.1 IRABASSAVVA D/O. SUBRAI KOCHARI, AGE: 56 YEARS, OCC: SERVICE, R/O.15TH BLOCK, KORAMANGALA, BENGALURU-560034. 1.2. TUKARAM S/O. SUBRAI KOCHARI, AGE: 64 YEARS, OCC: AGRICULTURE, R/O. PLOT NO.1031, NEAR STADIUM, RAMTHEERTH NAGAR, BELAGAVI-591265. 2. KADAPPA BASAWA HOLER SINCE DEAD BY HIS LRS 2.1 HIRABI KADAPPA BASTWAD, AGE: 72 YEARS, OCC: AGRICULTURE, R/O. HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309. 2.2 UDAY KADAPPA BASTAWAD, AGE: 62 YEARS, OCC: AGRICULTURE, R/O. HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309. ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.27 17:00:44 +0530 - 2 - NC: 2025:KHC-D:3656 WP No. 101342 of 2025 2.3 VIJAYKUMAR KADAPPA BASTWAD, AGE: 52 YEARS, OCC: AGRICULTURE, R/O. HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309. 2.4 SANJU KADAPPA BASTWAD, AGE: 62 YEARS, OCC: AGRICULTURE, R/O. HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309. 3. UDAYKUMAR KADAPPA BASTWAD, AGE: 62 YEARS, OCC: NIL, R/O. NEAR POLICE STATION, GOKAK ROAD, HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309. 4. SANJEEVKUMAR S/O. KADAPPA BASTWAD, AGE: 60 YEARS, OCC: AGRICULTURE, R/O. NEAR POLICE STATION, GOKAK ROAD, HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309. …RESPONDENTS (BY SMT. SUNANDA P. PATIL, ADVOCATE FOR R1(1-2), R2(2-3), R3 & R4) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI AND QUASH THE COMMON ORDER DATED 05.11.2024 PASSED BY THE SENIOR CIVIL JUDGE, HUKKERI IN IAS 6 AND 7 ON 5-11-2024 AND CONSEQUENTLY ALLOW I.AS NO.6 AND 7 FILED UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908, IN EP NO.141/2015 AT ANNEXURE-A; MODIFIED THE IMPUGNED ORDERS CLARIFYING THAT THE HANDING OVER OF POSSESSION HALF SHARE OF KALLAWA TO RESPONDENT1.1 AND 1.2 ENSURES THE BENEFIT OF THIS PETITIONER ALSO; GRANT SUCH OTHER RELIEF/S AS THIS HON'BLE COURT DEEMS FIT TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:3656 WP No. 101342 of 2025 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. The petitioner is before this Court seeking for the following reliefs: a. Issue a writ of certiorari and quash the common order dated 05.11.2024 passed by the Senior Civil Judge, Hukkeri in I.A.s 6 and 7 on 5-11-2024 and consequently allow I.A.s no.6 and 7 filed under section 151 of the Code of Civil Procedure, 1908, in EP No.141/2015 at Annexure-A; b. Modified the impugned orders clarifying that the handing over of possession half share of Kallawa to Respondent 1.1 and 1.2 ensures the benefit of this petitioner also; c. Grant such other relief/s as this Hon'ble Court deems fit to grant in the facts and circumstances of the case. 2. One Smt. Kallawwa had preferred a suit in O.S.No.82/2000 before the Senior Civil Judge at Hukkeri for partition and separate possession of the plaintiff’s half share in the suit property. The 1st defendant had filed a written statement denying the plaint averments. The petitioner herein was the defendant No.2 therein had adopted the said written statement. The trial Court had decreed the suit and - 4 - NC: 2025:KHC-D:3656 WP No. 101342 of 2025 FDP proceedings in FDP.No.11/2013 had been filed and a final decree was also drawn up on 08.07.2015. Subsequently, Ex.P.No.141/2015 had been filed. It is at the final stage, when the execution proceedings was in the closing stage a bailiff having been appointed to handover the possession to respondents No.1.1 and 1.2 that the petitioner filed an application on 28.03.2022 seeking for delivery of possession to the petitioner along with respondents No.1.1 and 1.2. another application had been filed under Section 151 of CPC for rejection of the bailiff report and issuance of fresh warrant to the bailiff to handover the possession to the petitioner and respondents No.1.1 and 1.2. Both applications having been objected to, the execution Court vide its order had dismissed those applications. It is challenging the same, petitioner is before this Court. 3. The submission of learned counsel Sri S.H.Mittalkod is that the petitioner has committed a mistake by - 5 - NC: 2025:KHC-D:3656 WP No. 101342 of 2025 adopting the written statement filed by the 1st defendant. The petitioner being defendant No.2 in the said suit in O.S.No.82/2000. His submission is that the relationship between himself and Kallavva not being in dispute. The decree holders respondents No.1.1 and 1.2 being his sister and brother respectively, the petitioner is also entitled to equal share with them in mother Kallavva’s property and as such applications filed ought to have been rightly considered and orders passed. 4. A perusal of the impugned order, more particularly at paragraph No.12 thereof would indicate that the petitioner who was defendant No.2 in O.S.No.82/2000 has adopted the written statement filed by the 1st defendant, wherein the right of the Kallawwa in regard to the properties have been disputed and denied so also the relationship with the family been denied. This aspect of the relationship being denied would have to be separately considered, - 6 - NC: 2025:KHC-D:3656 WP No. 101342 of 2025 when the petitioner has adopted the said written statement. When the relationship is denied, the petitioner cannot now claim being the legal heir of Kallavva he is entitled to equal share with respondents No.1.1 and 1.2. The petitioner chose to remain quite till the year 2022 even though the execution petition was filed in the year 2015 and it is only when the delivery of the possession was required to be made to respondents No.1.1 and 1.2 that such an application came to be filed by the petitioner seeking for delivery of a portion of the property in his favour claiming 1/3rd right. 5. The relationship having been disputed, it would be for the petitioner to establish relationship now to claim right under Kallavva by a separate proceedings since rights of the petitioner has not been determined in any of proceedings till date, that being so, I am of the considered opinion that applications filed by the petitioner in I.A.Nos.VI and VII as - 7 - NC: 2025:KHC-D:3656 WP No. 101342 of 2025 indicated above have been rightly rejected by the executing Court. It is for the petitioner to file separate proceedings to establish his rights, if any. The observations made in the present order and that in the order dated 05.11.2024 passed in Ex.P.141/2015, would not come in the way of determination of the right of the petitioner in a suit, if and so filed by the petitioner. 6. With the above observations the petition stands disposed. Sd/- (SURAJ GOVINDARAJ) JUDGE CKK CT-MCK List No.: 1 Sl No.: 40