JUDGMENT : B. MURALIDHARA PAI, J. 1. The Defendant Nos.1, 6, 10, 12 and the legal representatives of Defendant No.5 have preferred this regular first appeal praying to set aside the judgment and decree dated 19.12.2019 passed by learned Principal Senior Civil Judge, Jamkhandi in O.S.No.97/2011 and consequently dismiss the counter claim. 2. For the sake of convenience, parties in this appeal are referred to as they are referred to in the original suit. 3. The suit in O.S. No.97/2011 was maintained by the Plaintiffs namely Sri Ramappa and Sri Laxaman, claiming partition and separate possession of their 1/5 th share in 18 items of properties more fully described in Schedule B of the plaint by meets and bounds and for other consequential reliefs on the ground that there was no equitable partition between parties to the suit. 4. The suit summons was served on all the Defendants. In spite of the same, Defendant Nos. 2,3,7,11,17 to 19 remained absent before the trial Court. As such they were placed ex-parte. Defendant No.3 is the mother of minor Defendant No.4. As she failed to appear before the court and protect the interest of minor Defendant No.4, an advocate by name Sri S.B.Muttikalli, Advocate, Jamkhandi was appointed as Court Guardian for him. He has filed a formal written statement on behalf of Defendant No.4 praying to decree the suit and to allot a share even to Defendant No.4. 5. Defendant Nos.1, 6, 10 and 12 have filed their common written statement in the case. Defendant No.5 has adopted their written statement by filing a memo. These defendants have contended that there was already a partition in the family during the life time of Sri Basalingappa i.e, during the year 1979 and that in the said partition all the sons of Sri Basalingappa have taken their respective shares and enjoying the properties fallen to their share exclusively. They have further stated that in the said partition Sri Basalingappa had retained properties bearing Sy.No.73/2/2, 125/2/2, 172/2/A and 206/2 for himself, which were also partitioned amongst his sons during the year 1985. They contended that Sy.No.235/2+3 is the property purchased by Sri Basappa from his individual efforts and without any aid of the joint family and as such neither the Plaintiffs nor Defendant Nos.13 to 19 have got any share in the said property. They contended that Sy.No.235/2+3 is the property purchased by Sri Basappa from his individual efforts and without any aid of the joint family and as such neither the Plaintiffs nor Defendant Nos.13 to 19 have got any share in the said property. They also submitted that the Plaintiffs and Sri Mallappa have sold the properties allotted to their share in the partition and therefore the suit is liable to be dismissed. 6. Initially, Defendant No.14 filed a written statement in the case on 23.6.2012 and prayed for dismissal of the suit on the ground that there was already a partition in the family and that all the branches of the family are in possession and enjoyment of their respective hissas in accordance with the partition and that all the parties to the partition have acted upon such partition. Defendant Nos.13, 15 and 16 adopted the written statement filed by Defendant No.14 by filing a memo on the same date. 7. Subsequently, on 18.10.2016 Defendant No.14 filed Counter Claim under Order VIII Rule 6A of CPC praying the relief of declaration that property bearing R.S. No.235/3A was joint family property of the Plaintiffs and the Defendants and it was partitioned as per the map annexed to the counter claim and for consequential relief of injunction as well as in alternatively, for partition and separate possession of 1/5 th share for Defendant Nos.13 to 16 in the said property by metes and bounds. 8. On the basis of above pleadings and the documents produced by parties to the suit, the trial Court framed the following: ISSUES 1) Whether Plaintiffs prove that suit schedule properties are anancestral joint family properties of themselves and Defendants? 2) Whether Defendant Nos. 1, 5, 6, 10 & 12 prove that already there was a partition in their family except in respect of suit land survey No.235/3? 3) Whether Defendant Nos. 1, 5, 6, 10 & 12 further prove that the suit land survey No.53/1/1+2/1+3/1 & suit land 88/2013 were acquired by their branch on the basis of will dated: 02-05-1990 executed by Smt Laxmi? 4) Whether Defendant Nos. 13 to 16 prove that already there was a partition? 5) Whether Plaintiff is entitled for the relief as sought for? 6) What order or decree? 9. During the pendency of the suit, Plaintiff No.1 died on 11.05.2015. 4) Whether Defendant Nos. 13 to 16 prove that already there was a partition? 5) Whether Plaintiff is entitled for the relief as sought for? 6) What order or decree? 9. During the pendency of the suit, Plaintiff No.1 died on 11.05.2015. Pursuant to the same, his legal representatives filed necessary applications and came on record. Subsequently, Plaintiff No.2 died on 26.07.2016. The legal representatives of Plaintiff No.1 did not show any interest to bring the legal representatives of Plaintiff No.2 on record. Meanwhile, legal representatives of Plaintiff No.1 filed a memo before the trial Court on 19.02.2018 stating that they are not interested and not willing to proceed with the matter and prayed to dismiss the suit as not pressed. Thereafter, Defendant Nos.13 to 16 filed applications to bring the legal representatives of Plaintiff No.2 on record. The said applications were allowed on 01.06.2018 and they were brought on record. 10. After carrying out amendment, the suit summons was issued to the legal representatives of Plaintiff No.2. In spite of service of such summons, the legal representatives of Plaintiff No.2 did not appear before the trial Court and did not show any interest either to prosecute the case or defend the suit. Thereafter, the legal representatives of Plaintiff No.1 filed one more memo before the trial Court on 13.03.2019 praying for permission to withdraw the suit. In the above circumstances, the legal representatives of Plaintiff Nos.1 and 2 did not come forward to adduce their evidence in the case. 11. The trial Court vide its order dated 20.06.2019 opined that it is a comprehensive suit and it requires to adjudication on merits of the case. As such it proceeded with the suit. In the said circumstances, the Defendants adduced their evidence, wherein Defendant Nos.14 and 12 deposed before the trial Court as DW-1 and 2 respectively and got marked documents at Exs.D-1 to 86. 12. As such it proceeded with the suit. In the said circumstances, the Defendants adduced their evidence, wherein Defendant Nos.14 and 12 deposed before the trial Court as DW-1 and 2 respectively and got marked documents at Exs.D-1 to 86. 12. Then the trial Court heard arguments on the side of contesting Defendants, considered the materials placed on record and decreed the suit in part holding that the branches of original Plaintiffs along with the branches of Sri Basappa, Sri Mallappa and Sri Mahadev are entitled for 1/5 th share each in property bearing RS.No.235/3A of Madarkhandi Village in Jamkhandi taluk on the ground that the said property continues to be the joint family property of the members of the family of Basalingappa and as such the parties are entitled to their share therein. 13. Being aggrieved by the said judgment and decree, Defendant Nos.1,6,10,12 and the legal representatives of Defendant No.5 have come up with this appeal. Defendant No.5 passed away after passing of the impugned judgment and decree leaving behind Appellant Nos.2 to 5 as his legal heirs. As such they have also joined in filing this appeal. Defendant No.1, who was the wife of Sri Basappa, died during pendency of the appeal. Her legal representatives i.e. Appellant Nos.2 to 8 were already on record. As such no necessity arose to bring her legal representatives on record. 14. During the course of argument, Sri S.A.Sondur learned counsel for Sri K.L.Patil and Sri S.S.Beturmath, learned counsels for Appellants vehemently submitted that the impugned judgment and decree is opposed to facts and law and it is illegal, arbitrary and perverse. He submitted that the trial Court has not at all appreciated the materials available on record and that the impugned judgment and decree has resulted in miscarriage of justice. He drew the attention of the Court to the factum that the decree in question is based on a counter claim sought against Co-Defendants and not against the Plaintiffs. He relied on the decisions in Rohit Singh and Others Vs State of Bihar reported in AIR 2007 SC 10 and Satyender and Others Vs Saroj and Others reported in 2022 LiveLaw (SC) 679 and submitted that the trial Court ought not have entertained the counter claim of Defendant Nos.13 to 16 set up against co- defendants. He relied on the decisions in Rohit Singh and Others Vs State of Bihar reported in AIR 2007 SC 10 and Satyender and Others Vs Saroj and Others reported in 2022 LiveLaw (SC) 679 and submitted that the trial Court ought not have entertained the counter claim of Defendant Nos.13 to 16 set up against co- defendants. He further relied on Angadi Chandranna Vs Shankar & Others ( 2025 INSC 532 ) and submitted that the trial Court has failed to take notice of lack of evidence to show abandonment of the rights of Defendant Nos.1 to 12 over the property in question or to presume blending of self acquired property of Sri Basappa with other joint family properties. He relied on decision rendered by Co-ordinate Bench of this Court in Bassanna since deceased by LRs Vs Dodda Basamma and Others (RFA No.5028/2011, DD 10.01.2012) and submitted that the trial Court has given much importance to the entries in land records ignoring unequivocal admission regarding prior partitions in the family. As such, he prayed to allow the appeal and to set aside the impugned judgment and decree. 15. Per contra, Sri V.M.Sheelvanth and Sri Hemanthkumar L. Havaragi, learned Counsels for Respondent Nos.10, 13, 15 and 16 as well as Sri Girish A. Yadwad, learned Counsel for Respondent Nos. 17, 19 and 20, supported the findings recorded by trial Court and its conclusion on the ground that the property in question was purchased by Sri Basalingappa in the name of Sri Basappa and the property in question i.e, land bearing R.S.No.235/3A is the joint family property. As such they submitted that no ground has been made out in this appeal to interfere with well reasoned impugned judgment and decree passed by the trial court. 16. In the light of the above facts and the rival contentions, the point that arises for our consideration is : Whether the trial Court is justified in allowing the counter claim of Defendant Nos.13 to 16? 17. The parties to the proceeding are not at dispute regarding their interse relationship. One Sri Basalingappa was the propositus of the family. He had five sons namely Sri Basappa, Sri Ramappa, Sri Laxaman Sri Mallappa and Sri Mahadeva and a sister by name Smt. Lakkawwa. 18. Sri Basappa died on 25.06.1978 leaving behind Defendant Nos.1 to 12 as his legal representatives. Sri Basalingappa died on 23.03.1985. One Sri Basalingappa was the propositus of the family. He had five sons namely Sri Basappa, Sri Ramappa, Sri Laxaman Sri Mallappa and Sri Mahadeva and a sister by name Smt. Lakkawwa. 18. Sri Basappa died on 25.06.1978 leaving behind Defendant Nos.1 to 12 as his legal representatives. Sri Basalingappa died on 23.03.1985. Smt. Lakkawwa died issueless on 08.01.1989. Sri Mahadev died on 12.05.2010 leaving behind Defendant Nos.16 to 19 as his legal representatives. Sri Malappa died on 03.01.2011 leaving behind Defendant Nos.13 to 16. Thus, admittedly Sri Basappa predeceased Sri Basalingappa and Smt. Lakkawwa. 19. The sons of Sri Basalingappa namely Sri Ramappa and Sri Laxman maintained the suit, claiming partition and separate possession of their 1/5 th share each in 18 items of properties, more fully described in schedule B of the plaint on the ground that there was no equitable partition and separate possession between parties to the suit. 20. In Para-5 of the plaint it is averred that on 8.10.1079 the propositus – Sri Basalingappa had settled and orally partitioned the ancestral joint family properties between himself and his sons and that accordingly mutation entry was effected under M.E. No.1893 dated 12.11.1979. In Para-6 of the plaint it is averred that the propositus–Sri Basalingappa died on 23.03.1985 and thereafter his share was again divided between his sons through a family arrangement and that mutation was effected under M.E. No.4421 dated 01.07.1985. In addition to the above, the Plaintiffs have categorically stated that though the names of the parties to the suit are entered in Record of Rights jointly, they are in possession and cultivation of the properties to the extent given to them. Thereby one can make out clear admissions on the side of the Plaintiffs regarding earlier two partitions taken place in their family and the parties concerned having acted upon such partition. 21. As per the averments of the plaint, the grievance of the Plaintiffs is that the partitions effected in the year 1979 and 1985 are unequal partitions and that excess land has been allotted to Defendant Nos.1 to 12 i.e, Sri Basappa’s Branch and that it is not binding on them. It is further contended that there is no separate Record of Rights and no separate hissa has been created till date. It is further contended that there is no separate Record of Rights and no separate hissa has been created till date. The Plaintiffs have also contended that earlier partitions were only temporary family arrangement between coparceners and that definite equal shares are not defined between the parties to the suit. The ultimate contention of the Plaintiffs is that there was no equitable partition of the joint family properties between the parties to the suit. 22. While narrating about the cause of action for the suit, in Para-11 of the plaint, it is averred that the cause of action for filing the suit arose on 21.07.2011 when the names of the Plaintiffs were deleted from Record of Rights of land bearing R.S. No.235/3A as per the order passed in a revenue proceeding. Thus, the averments of the plaint give an impression that the Plaintiffs herein had not raised any challenge to the family arrangements or the partitions effected in the family till 21.07.2011. 23. As observed by the co-ordinate bench of this Court in the case of Bassanna since deceased by Lrs. Vs Dodda Bassamma and Others , referred supra, when once partition was affected, mutation entry made or not made, will in no way affect the rights of the parties. As already pointed out, the Plaintiffs have sought relief of the partition and separate possession in the case on the ground that earlier partitions were unequal partitions. Nevertheless, it is to be noted that the Plaintiffs have not challenged the earlier partitions on specific grounds like fraud, coercion, lack of consent or violation of statutory shares etc. On the other hand, the averments of the plaint prima facie indicate implied admissions regarding the parties to the partition having acted upon such partitions or family arrangements by taking possession of their respective shares. As such, a partition, generally cannot be reopened solely on the ground of alleged inequality in allotting the shares. Added to the above, the legal representatives of the Plaintiffs have not shown any interest to prosecute the suit by adducing their evidence. In view of the same, trial court had no occasion to decide the matter based on the contentions of the Plaintiffs. Even the Defendants have no grievance in this regard as they also admit earlier partitions in the family. 24. In view of the same, trial court had no occasion to decide the matter based on the contentions of the Plaintiffs. Even the Defendants have no grievance in this regard as they also admit earlier partitions in the family. 24. Coming to the counter claim sought by Defendant Nos.13 to 16 in respect of the land bearing R.S.No.235/3A measuring 10 acres 21 guntas situated at Madarkhandi village, learned counsel for Defendant Nos.1, 6, 10, 12 and legal representatives of the Defendant No.5 has mainly contended that such a counter claim sought by Defendant Nos.13 to 16 against Co-Defendants was not maintainable. 25. In Rohit Singh and Others Vs State of Bihar Hon’ble Apex Court has held that, “18. Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co- defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an inter-pleader suit………“ 26. In Satyender and Others Vs Saroj and Others the Hon’ble Apex Court has reiterated that a counter claim can be set up only “against the claim of the Plaintiffs” 27. In Rajul Manoj Shah alias Rajeshwari Rasiklal Sheth Vs. Kiranbhai Shakarabhai Patel and Another (2025 INSC 1109) has reaffirmed that Order VIII Rule 6A of CPC provides counter claim shall be against the claim of the plaintiff and such right or claim shall be in respect of cause of action accruing to defendant against the plaintiff. 28. In the present case, the averments of the written statements filed by Defendant Nos.13 to 16 on 23.06.2012 and 18.10.2016 clearly go to show that they have sought the counter claim mainly against Defendant Nos.1 to 12 and particularly against Defendant Nos.1 to 3, 5, 6, 10, 12, 17 and 19 and that the counter claim is not against the Plaintiffs. It is because in their written statement filed on 23.06.2012 they have not only denied entire case of the Plaintiffs but also prayed for dismissal of the suit. 29. It is because in their written statement filed on 23.06.2012 they have not only denied entire case of the Plaintiffs but also prayed for dismissal of the suit. 29. Added to the above, learned counsel for Defendant Nos.1,6,10,12 and the legal representatives of Defendant No.5 submitted that Defendant Nos.13 to 16 have sought the counter claim based on a cause of action said to have arisen at a subsequent point of time than the time stipulated under Order VIII Rule 6A of CPC and as such Defendant Nos.13 to 16 could not have sought the counter claim in the suit. 30. The reading of Order VIII Rule 6A of the CPC makes it clear that the said provision enables a defendant to set up a counter claim to assert “any right or claim in respect of a cause of action accruing to him, either before or after the filing of the suit but before the Defendant has delivered his defense or before the time limited for delivering his defense has expired (emphasis supplied)”. 31. In Ashok Kumar Kalra Vs. Wing CDR.Surendra Agnihotri and Ors reported in (2020) 2 SCC 394 while answering a reference wherein clarification was sought as to the interpretation of Order VIII Rule 6A of CPC, Hon’ble Apex Court has noted the conditions for filing a counter claim under Order-VIII Rule-6A of the CPC as under : (i) Counter claim can be for claim of damages or otherwise. (ii) Counter claim should relate to the cause of action, which may accrue before or even after filing the suit. (iii) If the cause of action in the counter claim to one accrued after filing of suit, it should be one accruing before filing of the written statement or the time given for the same. 32. In Para 21 of the written statement, Defendant Nos.13 to 16 have specifically averred that in view of dismissal of their suit in O.S.No.64/2012 filed before learned Additional Civil Judge, Jamakhandi, they were constrained to file the counter claim in the case. Further, even in Para 22 of the written statement while narrating the cause of action for the suit, they have stated that the cause of action for maintaining the counter claim arose when their suit in O.S.No.64/2012 came to be dismissed on 27.09.2016. Further, even in Para 22 of the written statement while narrating the cause of action for the suit, they have stated that the cause of action for maintaining the counter claim arose when their suit in O.S.No.64/2012 came to be dismissed on 27.09.2016. Thus, the averments of the written statement filed on 18.10.2016 clearly go to show that Defendant Nos.13 to 16 are not seeking the counter claim based on the cause of action that arose either before or after the filing of the suit but before the Defendant has delivered his defense or before the time limited for delivering his defense has expired. 33. Learned Counsel for Defendant Nos.1, 6, 10, 12 and the legal representatives of Defendant No.5 has also contended that Defendant Nos. 13 to 16 have filed their counter claim when the suit was at the stage of evidence of the Plaintiffs and that they have filed the counter claim without seeking leave of the court in compliance with Order VIII Rule 9 of CPC. 34. The case papers reveal that Defendant Nos.13 to 16 have appeared before the trial Court through their counsel on 09.12.2011. They did not file their written statement till 23.06.2012. On 23.06.2012 they filed their written statement along with an application seeking permission to file their defense. The said application was allowed on 08.07.2013 and accordingly their written statement filed on 23.06.2012 was taken on record. Subsequently, on 18.10.2016 Defendant Nos.13 to 16 have filed additional written statement in the case praying for counter claim. The trial court has framed issues in the case on 14.02.2014 and thereafter the case was being adjourned at the stage of Plaintiffs’ evidence. Thereby it becomes clear that Defendant Nos.13 to 16 have set up counter claim after more than 4 years from the date of their initial written statement, which was filed on 23.06.2012 and after more than 2 years from the date of framing of the issues on 14.02.2014. 35. It is also relevant to note that Defendant Nos.13 to 16 have filed their additional written statement in the case on 18.10.2016 setting up counter claim without seeking leave of the court. Order VIII Rule 9 of CPC mandates that no pleading subsequent to the written statement of a defendant other than by way of defense to a set-off or counter claim shall be presented except by the leave of the Court. Order VIII Rule 9 of CPC mandates that no pleading subsequent to the written statement of a defendant other than by way of defense to a set-off or counter claim shall be presented except by the leave of the Court. The materials on record do not disclose Defendant Nos.13 to 16 having sought the leave of the trial court for coming up with a counter claim when they had already filed their written statement on 23.06.2012 and issues had been framed on 14.02.2014. The impugned judgment and decree makes it clear that the trial court has not considered these above referred lacunas before proceeding to decree the suit in part by accepting the counter claim of Defendant Nos.13 to 16. 36. Even otherwise, in the counter claim Defendant Nos.13 to 16 have sought for a declaration that property bearing R.S.No.235/3A was a joint family property of the parties to the suit and that there was already a partition of the said property as per the map annexed as schedule D to the counter claim and for consequential relief of injunction restraining Defendant Nos.1 to 3, 5, 6, 10,12, 17 and 19 from causing any sort of obstruction to Defendant Nos.13 to 16 being in peaceful possession and enjoyment of a strip in R.S. No.235/3A. When Defendant Nos.13 to 16 themselves have contended that there was division of the properties in the family, it is to be held that their prayer for declaration that only one of the properties i.e. land bearing R.S.No.235/3A was a joint family property is misconceived. On the other hand, they should have asserted their right over the portion of the property said to have been allotted to them in the partition. In the said circumstances, these Defendants could not even sought for alternative relief of partition and separate possession of their share in the land in question, which was barred by law as on the date of setting up counter claim. For the foregoing reasons, we hold that the trial court has erred in entertaining the counter claim of defendant Nos.13 to 16 and in proceeding to decree the suit in part based on such counter claim. 37. In the result, this Court proceeds to pass the following: ORDER i. The appeal is allowed. ii. For the foregoing reasons, we hold that the trial court has erred in entertaining the counter claim of defendant Nos.13 to 16 and in proceeding to decree the suit in part based on such counter claim. 37. In the result, this Court proceeds to pass the following: ORDER i. The appeal is allowed. ii. Consequently, the judgment and decree dated 19.12.2019 passed in O.S.No.97/2011 by learned Principal Senior Civil Judge, Jamkhandi is set aside and the counter claim of Defendant Nos.13 to 16 is dismissed. iii. The registry is directed to transmit the trial court record to the concerned court forthwith.