- 1 - HC-KAR NC: 2025:KHC-D:11054 WP No. 103992 of 2020 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 30TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL WRIT PETITION NO. 103992 OF 2020 (GM-CPC) BETWEEN: SMT. ROHINI BHIMAJI KULKARNI, AGE: 57 YEARS, OCC: HOUSEHOLD WORK, R/O. ATHANI, NOW AT L.E.T. COLLEGE, VIDYA NAGAR, GOKAK, R/BY HER GPA HOLDER, SRI. BHIMAJI S/O. GOVINDRAO KULKARNI, AGE: 57 YEARS, OCC: RETD., R/O: ATHANI, NOW AT L.E.T. COLLEGE, VIDYA NAGAR, GOKAK. …PETITIONER (BY SRI. DINESH M. KULKARNI, ADVOCATE) AND: 1. SMT. CHAYA W/O. VITTALRAO PHADNIS, AGE: 64 YEARS, OCC: HOUSEHOLD WORK, R/O. NAVRUTUJA BUILDING, A/2/5, JAIHIND COLONY, OPPOSITE RAJARAM BOVI BUILDING, DOMBIVALI (WEST), DIST: THANE, STATE OF MAHARASHTRA. SMT. JAYSHRE W/O. DILIP DATAR SINCE DECEASED BY HER LRS. 2A. DILIP VASANT DATAR, AGE: 74 YEARS, R/O. NAVRUTUJA BUILDING, A/2/5, JAIHIND COLONY, OPPOSITE RAJARAM BOVI BUILDING, DOMBIVALI (WEST), DIST: THANE, STATE OF MAHARASHTRA. Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:11054 WP No. 103992 of 2020 2B JANHAVI JAYANT KULKARNI, AGE: 46 YEARS, R/O. NAVRUTUJA BUILDING, A/2/5, JAIHIND COLONY, OPPOSITE RAJARAM BOVI BUILDING, DOMBIVALI (WEST), DIST: THANE, STATE OF MAHARASHTRA. 2C. DEEPAK DILIP DATAR, AGE: 42 YEARS, R/O. NAVRUTUJA BUILDING, A/2/5, JAIHIND COLONY, OPPOSITE RAJARAM BOVI BUILDING, DOMBIVALI (WEST), DIST: THANE, STATE OF MAHARASHTRA. 3. SHRI VISHAL S/O. VITTARAO PHADNIS, AGE: 38 YEARS, OCC: AGRIL. & JOB, R/O. ATHANI, TAL: ATHANI, DIST. BELGAUM, NOW SO CALLED AS SHRI JAYANT A/F. VENKATESH KULKARNI, A/2/5,CO-OP HOUSING SOCIETY, DOMBIVALI (WEST), DIST: THANE, STATE OF MAHARASHTRA. …RESPONDENTS (BY SRI. PRASAD RAMESHRAO SIDHANTI, ADV. FOR R1 & R3; NOTICE TO R2(A) TO R2(C) SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE ORDER ON IA NO.8 DATED 04.12.2019 IN O.S.NO.649/2012 PASSED BY THE II ADDL. CIVIL JUDGE & JMFC, ATHANI, VIDE ANNEXURE-G, AS NULL AND VOID. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:11054 WP No. 103992 of 2020 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This petition is filed seeking following reliefs: a) To issue writ in the nature of certiorari by quashing the order on IA No.8 dated 04.12.2019 in O.S.No.649/2012 passed by the II Addl. Civil Judge & JMFC, Athani, vide Annexure-G, as null and void b) Issue any other writ or direction as this Hon’ble Court may deems fit, in the interest of justice and equity. 2. Sri. Dinesh M. Kulkarni, learned counsel appearing for the petitioner submits that the petitioner filed a suit for partition and separate possession and in the said suit, the defendant Nos.1 and 4 filed a written statement as well as counter claim. It is submitted that the petitioner/plaintiff filed an application seeking amendment of the plaint, seeking for additional prayer that the adoption deed executed by defendant No.1 in favour of defendant No.4 dated 28.05.1982 is illegal, bogus and not binding on the share of the plaintiff. Further amendment is narration of fact with regard to the illegal forged creation of document alleged to be relinquishment deed by the - 4 - HC-KAR NC: 2025:KHC-D:11054 WP No. 103992 of 2020 defendant No.1. However, the trial Court without considering any of the aspects rejected the application under the impugned order. It is submitted that the suit is for partition and separate possession, hence, question of limitation would not arise. The question of limitation is mixed question of law and fact, that can be tried in a pending suit and rejection of the application by the trial Court is incorrect. Hence, he seeks to allow the petition. 3. Per contra, Sri. Prasad Rameshrao Sidhanti, learned counsel appearing for the contesting respondents supports the impugned order of the trial Court and submits that the trial Court taking note of Article 57 of the Limitation Act, 1963, rightly rejected the additional prayer for declaration to declare the adoption deed dated 28.05.1982 is illegal. It is submitted that the defendants No.1 and 4 filed a counter claim on 24.11.2012 and written statement on 26.11.2012, those pleadings clearly mentioned with regard to the adoption and also relinquishment. However, the application is filed for amendment of the plaint in the year 2019 and on the ground of delay, the trial Court has rightly rejected the application, which does not call for any interference in these proceedings. - 5 - HC-KAR NC: 2025:KHC-D:11054 WP No. 103992 of 2020 4. I have heard the arguments of learned counsel for the petitioner, learned counsel for the respondent and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced on both sides. 5. The petitioner filed O.S.No.649/2012 for relief of partition and separate possession of the joint family property claiming that the plaintiff is the coparcener. In the said suit, the defendants No.1 and 4 filed counter claim and detailed written statement on 24.11.2012 and 26.11.2012 respectively. The perusal of the counter claim and the written statement clearly indicates that there is a averment with regard to the execution of the deed of adoption by the defendant No.1 in favour of the defendant No.4 dated 28.05.1982 and also with regard to the relinquishment deed dated 23.06.1982. In other words, the plaintiff was well aware about the adoption deed dated 28.05.1982 and the relinquishment deed dated 23.06.1982 when the written statement and counter claim was filed. However, the application for amendment was filed by the plaintiff on 23.10.2019 which is beyond the period of limitation as provided - 6 - HC-KAR NC: 2025:KHC-D:11054 WP No. 103992 of 2020 under Article 57 of the Limitation Act, 1963. The proposed relief sought by the plaintiff to declare the deed of adoption dated 28.05.1982 is illegal and beyond the period of limitation and in view of the same, the trial Court has rightly rejected the application. Insofar as amendment to paragraph ‘A’ to the plaint is concerned, the written statement and counter claim also makes a reference with regard to the relinquishment deed dated 23.06.1982 and the said written statement was filed in the year 2012. In the present application for amendment which is filed on 23.10.2019 is beyond the period of 6 ½ years. Considering these aspects, the trial Court has rejected the application. The findings recorded by the trial Court are neither perverse nor contrary to law calling for interference in the present proceedings. 6. For the aforementioned reasons, I am of the view that the writ petition is devoid of merits and the same is accordingly rejected. Sd/- (VIJAYKUMAR A.PATIL) JUDGE RKM /CT-AN List No.: 1 Sl No.: 3