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2019 DIGILAW 237 (KAR)

Chandrakant Madhav Mane v. Surendra Tukaram Mane

2019-01-23

B.V.NAGARATHNA

body2019
ORDER : This writ petition is listed for preliminary hearing – B group. 2. I have heard learned counsel for the petitioners and perused the material on record. 3. Petitioners herein are plaintiff Nos.1 to 8 in O.S.No.87/2011. The said suit has been filed by them seeking the relief of partition and separate possession of their half share in the suit schedule properties. Another prayer sought for by them is to declare that the compromise decree passed in O.S.No.79/2010 dated 19.03.2010 on the file of the Principal Civil Judge and JMFC, Chikodi is not binding on them. Alternatively, plaintiffs have sought for possession of the suit schedule properties. In response to the plaint, the defendants appeared and filed written statement and counter claim under Order VIII Rule 6C of the Code of Civil Procedure, 1908 (CPC). In response to the counter claim, plaintiffs filed an application under Order VIII Rule 6C of the CPC seeking exclusion of the counter claim by the impugned order dated 08.03.2013. The said application has been dismissed. Being aggrieved, plaintiffs have preferred this writ petition. 4. Learned counsel for the petitioners submits that defendants in the suit could not have filed counter claim by seeking to add to the suit properties for the purpose of seeking the relief of partition and separate possession as the properties mentioned in the written statement-cum-counter claim are the self-acquired properties of the plaintiffs and therefore petitioners herein filed an application under Order VIII Rule 6C of CPC, which has been erroneously dismissed by the trial court. 5. Having heard learned counsel for petitioners and on perusal of the material on record, it is noted that the suit filed by petitioners herein is one for partition and separate possession. It is a settled position that all properties which are available for partition and separate possession and which are joint or ancestral properties have to be included in the plaint schedule. The defendants in the suit have a right to seek inclusion of the properties in the written statement-cum-counter claim filed by them. That is precisely what has been done in the instant case. 6. The defendants in the suit have a right to seek inclusion of the properties in the written statement-cum-counter claim filed by them. That is precisely what has been done in the instant case. 6. According to learned counsel for the petitioners, the properties sought to be included by the defendants are the properties of the plaintiffs and they were not included in the earlier suit namely O.S.No.79/2010 which has ended in a compromise decree and which compromise decree is assailed in O.S.No.87/2011, out of which this writ petition arises. Be that as it may. In view of the settled position of law, defendants have every right to include whatever properties they think are ancestral or joint family properties for the purpose of seeking the relief of partition and separate possession by way of counter claim. Order VIII Rule 6C of CPC states that where a defendant sets up a counter claim and the plaintiff contends that claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter claim, apply to the court for an order that such counter-claim may be excluded, and the court may, on the hearing of such application make such order as it thinks fit. 7. Applicability of the said provision depends upon the nature of the suit in the instant case. The suit filed by the plaintiffs/petitioners herein is one for partition and separate possession. As already noted all properties which have to be included for the purpose of seeking the said relief ought to be included in the plaint and if not included, the defendants can seek inclusion in the written statement or by way of counter claim. It is for the parties to prove as to whether those properties are available for partition or they are separate or self acquisition of any party and therefore not amenable for partition. That is a matter to be established during trial. In the circumstances, the application filed by the petitioners herein has been rightly dismissed by the trial Court. There is no merit in the writ petition. Writ petition is hence dismissed.