Karnataka High Court
Basappa S/O Allappa Javalagi vs Ilahai S/O Hussain Pendari on 22 June, 2017
Author: A.S.Bopanna
Bench: A.S.Bopanna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE A.S.BOPANNA
WRIT PETITION No.108390/2016 (GM-CPC)
BETWEEN:
SHRI BASAPPA S/O ALLAPPA JAVALAGI,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: SHIROL, TQ: MUDHOL,
DIST: BAGALKOT. ... PETITIONER
(BY SRI MAHANTESH R.PATIL FOR
SRI S.S.PATIL, ADV.)
AND:
1. SHRI ILAHAI ,
S/O HUSSAIN PENDARI @ BANAHATTI,
AGE: 65 YEARS, OCC: AGRICULTURE,
2. SHRI LAXMAN S/O RAMAPPA NAGANUR,
AGE: 50 YEARS, OCC: AGRICULTURE,
3. SMT.DURGAWWA W/O MANINGAPPA PANI
AGE: 40 YEARS, OCC: AGRICULTURE,
4. SHRI DEYAPPA S/O HUSSANAPPA AWARI,
AGE: 61 YEARS, OCC: AGRICULTURE,
5. SHRI RUDRAPPA S/O MURARI LAGALI,
AGE: 65 YEARS, OCC: AGRICULTURE,
6. SMT.JAMELA W/O LATEEF PENDARI,
AGE: 50 YEARS, OCC: AGRICULTURE,
2
7. SHRI VIJAYKUMAR S/OM SULOCHANA HADIMANI,
AGE: 30 YEARS, OCC: AGRICULTURE,
8. SHRI RAMESH S/O ADIVEPPA KADAKOL,
AGE: 48 YEARS, OCC: AGRICULTURE,
9. SMT.RENUKA W/O YAMANAPPA KADAKOL,
AGE: 48 YEARS, OCC: AGRICULTURE,
10. SMT.TUNGAWWA W/O RUDRAPPA BALOLAGIDAD,
AGE: 60 YEARS, OCC: AGRICULTURE,
11. SRI SANTOSH S/O HARISCHANDRA HAWARI,
AGE: 23 YEARS, OCC: AGRICULTURE,
12. MAHANANDA W/O RUDRAPPA SAGARGOL,
AGE: 48 YEARS, OCC: AGRICULTURE,
13. SHRI SIDDU S/O DHAREPPA MISHI,
AGE: 48 YEARS, OCC: AGRICULTURE,
ALL ARE R/O: RUDHRA SWAMI PETHA,
VIJAYAPUR ROAD, JAMKHANDI,
TQ: JAMKHANDI, DIST: BAGALKOT. ... RESPONDENTS
(BY SRI M.C.HUKKERI, ADV. FOR R-2 TO R-11 AND R-13,
R-1 AND R-12 SERVED)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
ON I.A. FILED U/O. IR 10(2) R/W. SEC.151 OF CPC.,
DATED:14.09.2016, PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, BAGALKOT IN P AND SC.NO.1/2016
PRODUCED AT ANNEXURE-H AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court assailing the order dated 14.09.2016 passed by the Court below on the IA 3 filed by the respondents herein under Order I Rule 10 (2) of the Code of Civil Procedure in P and SC No.1/2016.
2. The petitioner herein has filed the petition in P and SC No.1/2016 seeking grant of Succession Certificate in respect of a Will said to have been executed by one late Gangawwa w/o Rudrappa Munji. In the said proceedings, the respondents herein have filed an application under Order I Rule 10 (2) CPC seeking that they be allowed to come on record as opponent Nos.1 to 13. The Court below through the order impugned has allowed the application. The petitioner claiming to be aggrieved is before this Court in this petition.
3. The learned counsel for the petitioner while assailing the order would contend that the respondents herein cannot be considered as proper or necessary parties and therefore, the application ought not to have been allowed. It is his contention that in the application no reasons have been assigned by the respondents indicating the manner 4 of right to come on record. It is his further contention that if the case as putforth by them that they have certain right with regard to the property which was granted by way of occupancy right to late Gangawwa is to be taken note, such right, in any event would arise only after a decision is taken by this Court in the appropriate proceedings and at that stage, in any event, the respondents can claim their right. In that view, he contends that, at this stage, they have no right whatsoever and the application ought to have been rejected.
4. The learned counsel for the respondents would however seek to sustain the order passed by the Court below. It is pointed out that when a public notice was taken out with regard to the filing of the petition seeking Succession Certificate, the respondents herein having right over one item of the property which is claimed in the said proceedings have filed their application seeking that the Succession Certificate cannot be granted in respect of 5 such property. It is in that light they are to be considered as proper parties to the proceedings so as to putforth their contention. Hence, they contend that the order impugned does not call for interference.
5. In the light of the rival contentions, I have perused the petition papers. The right as claimed with regard to the property in question cannot be gone into in this petition. All that is necessary to be taken note is as to whether the Court below was justified in allowing the application filed by the respondents herein under Order I Rule 10 (2) CPC allowing them to come on record as opponents in P and SC No.1/2016. To the said extent, what cannot be lost sight is that when a petition seeking Succession Certificate is filed, the procedure followed is to call for objections if any by issue of public notice. In the instant case also, such procedure has been followed and in response when the respondents have indicated certain claim over one of the properties which is the subject 6 matter therein, even without there being an application under Order I Rule 10 (2) CPC, they were entitled to file their objections with the leave of the Court. Whether such right claimed to the property is to be accepted or not is a matter to be taken note by the Court below. Therefore, if in that light when a claim is made by the respondents, though at this juncture, the same need not be adjudicated certainly the right of the respondents to remain on record as opponents till consideration is made by the Court below cannot be denied to them. Therefore, the order impugned does not call for interference.
All questions on merits are left open to be urged before the Court below.
The petition is accordingly disposed of.
Sd/-
JUDGE Jm/-