B. Veerappa, J.

1. This is defendants' writ petition against the order on I.A. No.8 dated 08.07.2016 filed under Order 14, Rule 5 (1) & (2) of Code of Civil Procedure by the legal representatives of the 1st defendant in O.S. No.595/2009 on the file of the II Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, dismissing the application with cost of Rs. 200/-.

2. The 1st respondent/plaintiff filed suit in O.S. No.595/2009 for declaration to declare that the plaintiff is the absolute owner of the plaint 'A' schedule property having acquired title over the same under the registered sale deed dated 29.01.1964 and for a judgment and decree directing the defendants to vacate and hand over vacant possession of the plaint 'C' and 'D' schedule properties to the plaintiff and also to direct each of the defendants to pay a sum of Rs. 3,000/- per month, as damages for their unauthorized use and occupation of the plaint 'C' and 'D' schedule properties from 21.08.2007 till they vacate and hand over vacant possession of the same to the plaintiff, contending that he acquired title to the A schedule property under a registered sale deed dated 29.01.1964 and he has been in possession and enjoyment of the same. In the A schedule property, there were three tenements. The plaintiff was in possession and enjoyment of one portion, and the other two portions were in the possession of defendant Nos.1 and 2 respectively. It was further contended that on 15.03.1965, the 1st defendant being the eldest son of the family, executed a release deed in favour of the family upon taking certain properties as his share and plaintiff was not a party to the said document. In the release deed dated 15.03.1965, there is a reference to plaint 'C' schedule property as if the same was given to him as his share, in reality, same was not allotted to him, etc.

3. The defendants filed written statement denying the plaint averments and contended that the 1st defendant is released from the joint family through a release deed dated 15.03.1965 and as per the released deed, 1st defendant has acquired a portion of the suit schedule property i.e., Sy.No.98/2, measuring 35 guntas, Sy.No.97/1 measuring 1 acre 35 guntas and 1 /3rd out of House property bearing khaneshumari No.66, New No.77, khatha No.78, with specific boundaries. Therefore, sought for dismissal of the suit. Subsequently, defendant No. 1(b) tiled additional written statement and raised various contentions.

4. When the matter was posted for cross-examination of P.W.1, the legal representatives of deceased 1st defendant filed application under Order 14, Rule 5 (1) and (2) of CPC to strike out issue No.4 and for framing the following additional issues:

(1) Whether the plaintiff proves that the suit schedule properties are not the joint family properties of the plaintiff, in view of judgment and decree in R.A. 7, 8 and 9/2002?

(2) Whether the plaintiff proves that the suit is not barred by principles of res-judicata, in view of judgment and decree in R.A. 7, 8 and 9/2002?

5. Reiterating the averments made in the written statement, the defendants contended that the plaintiff himself produced Exs.P.19 and 20 and the burden is on the plaintiff to establish that the schedule properties are not joint family properties and in the very judgment while answering issue No.) there is a clear finding to the effect that the release deed dated 15.03.1965 is not binding on the plaintiff and said order reached finality and therefore, the question of again proving the same does not arise at all. Therefore, prayed to strike out issue No.4 and frame additional issues as prayed for.

6. The said application was resisted by the plaintiff by filing objections and it was specifically contended that subsequent to the appearance of the defendants, the 1st defendant had filed his written statement and at paragraph 37 of the written statement, he has taken a specific contention as to how he acquired the 'C' schedule property. Based on the