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2019 Supreme(Kar) 2115
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B. Veerappa, J.
Smt. Roopa D/O. Shivananda Reddy And Ors. - Petitioners
Versus
Sri Shivananda Reddy S/O Late K T Nagappa Reddy And Ors. – Respondents
W.P. No.7088 of 2019(GMCPC)
Decided On : 20-03-2019
Advocate Appeared:
For the Petitioner: Sri. C M Nagabushana, Adv.
For the Respondent: Sri. Rama Mohan M, Adv. Sri. M. S. Varadarajan, Adv.
Headnote:
Civil Procedure Code,1908 - Section 151 - Order 14 – Rule, 5(2) - Hindu Succession Act - Section,8 - Joint family properties - Schedule properties - Plaintiffs that suit came to be filed for partition and separate possession and consequential reliefs against defendants contending that suit schedule properties are joint family properties of plaintiffs and defendants and there was no partition defendants filed written statement contending at first instance that suit schedule properties were joint family properties but after filing additional written statement they contended that earlier there was partition between defendants and their father and suit filed by plaintiffs is not maintainable and sought for dismissal of suit –Held, Court considering application and objections has held that burden of proving all additional issues lies on defendants as per their written statement filed respectively and plaintiffs have to establish their case as per contentions took in pleadings of plaint as suit schedule properties are joint family properties and during period when issues were framed additional defendants were not impleaded and therefore additional issues came to be framed trial Court failed to notice that after additional defendants were defendant filed an application for framing additional issues which came to be rejected- It is also not in dispute that after framing of additional issues by learned Judge as submitted by learned counsel for parties were not allowed to adduce any evidence on proposed additional issues framed by trial Court - Framing of additional issues without there being proper evidence and pleading would not arise- Therefore as already stated above trial Court permitted all parties to adduce and produce evidence based on original issues framed in suit- If that is so there was no necessity for trial Court to frame additional issues without any reasons and proceed with judgment without allowing parties to adduce their evidence on additional issues framed - Petition disposed
ORDER :
Petitioners who are plaintiffs before the trial Court filed the present writ petition against the order dated 04.02.2019 passed on I.A.38 in O.S.No.3844/1995 on the file of the 38th Additional City Civil Judge, Bengaluru, thereby partly allowing the application filed by the petitioners under Order 14 Rule 5(2) read with Section 151 of Code of Civil Procedure.
2. It is the case of the petitioners – plaintiffs that the suit came to be filed for partition and separate possession and consequential reliefs against the defendants contending that suit schedule properties are the joint family properties of plaintiffs and defendants and there was no partition. The defendants filed written statement contending at the first instance that the suit schedule properties were joint family properties, but after filing additional written statement they contended that earlier there was partition between defendants 1 to 3 and their father and the suit filed by the plaintiffs is not maintainable and sought for dismissal of the suit.
3. Based on the aforesaid pleadings, the trial Court at the inception framed issues as hereunder :
a. Whether the defendants prove that the suit is bad for non-joinder of necessary parties?
b. Whether the plaintiffs prove cause of action?
c. Whether the plaintiffs are entitled for the relief of partition and separate possession as prayed in the plaint?
d. What decree or order?
4. On the basis of the issues, parties were allowed to lead evidence. Accordingly, plaintiffs and defendants adduced and produced their evidence and after completion of evidence when the matter was posted for arguments, the 3rd defendant filed an application on 07.02.2017 under Order 14 Rule 5 read with Section 151 of CPC seeking to frame additional issues as hereunder:
a. Whether the defendants 4 to 7 prove that the suit schedule properties are ancestral properties:
b. Whether defendants 4 to 7 prove that they are in possession and enjoyment of the suit schedule property on the date of filing of the suit?
c. Whether the defendants 1 to 3 prove that the sale deed executed by them earlier to filing of the suit and after filing of the suit or their family and legal necessities?
d. Under Section 8 of the Hindu Succession Act the plaintiffs and defendants 4 to 7 are entitled for their legitimate share in the suit schedule properties?
5. The said application came to be rejected on the same day of filing of the application i.e., on 07.02.2017. However, on 03.01.2018, the learned Judge contrary to the order passed on 07.02.2017 framed following additional issues:
a. Whether the defendants 3 and 6 prove that there has been partition held in between late Sri. K. T. Nagappa Reddy with his 3 sons dated 10.08.1982?
b. Whether defendant No.3 proves that suit schedule properties are the self acquired properties of late Sri. K. T. Nagappa Reddy?
c. Whether the defendants 4, 5 and 7 are entitled to their respective shares in the suit schedule properties i.e., item Nos. 1 to 11?
d. Whether the defendant No.12 proves that suit filed by the plaintiffs is bad for misjoinder of the parties?
e. Whether the 11th defendant proves that he is owner and the bonafide purchaser of a portion of land in Sy.No.33/2 situated at Chikkabellandur village?
f. Whether the 15th defendant proves that he is the owner and the bonafide purchaser of the land to an extent of 0.12 guntas in Sy.No.98 situated at Doddakannahalli from 2nd defendant under registered sale deed dated 27.01.1995, document No.7882/199494?
g. Whether the 19th defendant proves that he is the owner and the bonafide purchaser of the land to an extent of 0.48½ guntas is Sy.No.98 situated at Doddakannahalli from the 2nd defendant under registered sale deed dated 18.06.2004 and 02.05.2008 respectively from defendant No.2?
6. Thereafter, the present plaintiffs filed an application on 08.01.2018 to strike out and delete additional issues 1, 2 and 4 to 7 raised by the trial Court suo motu on 03.01.2018 contending that against the order
