The court determined that a specific prayer for cancellation in a suit justifies the removal of maintainability issues incorrectly framed by the Trial Court.

ORDER :

S.R. Krishna Kumar, J.

In this petition, petitioners seek the following reliefs:

"a) set aside the impugned Order passed by the Hon'ble Court of XVI additional City Civil and Sessions Judge CCH- 12, Bengaluru City, on L.A. No. VII in O.S. No. 6753/2022 dated 13-10-2025 vide ANNEXURE-A,

b) to pass such other order or direction as this Hon'ble deems fit in the circumstance of the Petitioners case and

c) to call for records in O.S.No.6753/2022 on the file of the XVI addl. City Civil and Sessions Judge CCH-12, Bengaluru City."

2. This petition by the plaintiffs in O.S.No.6753/2022 on the file of the learned XVI Additional City Civil and Sessions Judge (CCH-12) at Bengaluru, is directed against the impugned order dated 13.10.2025, passed on I.A.No.VII, whereby the said application filed by the petitioners/plaintiffs under Order XIV Rule 5 to strike off issue No. 4, was rejected by the Trial Court.

3. Heard the learned counsel for the petitioners and learned counsel for respondents No.1 and 2 and perused the material on record.

4. A perusal of the material on record will indicate that the petitioners/plaintiffs instituted the aforesaid suit against the respondents/defendants seeking partition and separate possession of their alleged share in the suit schedule properties, cancellation of the registered Partition Deed and for other reliefs. The said suit having been contested by the respondents/defendants, the Trial Court framed the following issues for its consideration:

"1) Whether the plaintiffs prove that suit schedule properties are the ancestral and joint family properties of plaintiff and defendant No.1 to 7 through propositus late Anjinappa?

2) Whether the plaintiffs prove that they are entitled to get 1/6^th share together to plaintiff No.1 to 4 and another 1/6^th share together to plaintiffs No.5 and 6 by metes and bounds with separate possession?

3) Whether the plaintiffs prove that the partition deed dated 17.06.2021 is made without proper share by allotting disproportionate shares?

4) Whether the plaintiffs prove that suit is maintainable without prayer for cancellation of partition deed dated 17.06.2021 as in paragraph 9 of the plaint, pleaded the necessity of cancellation of registered partition deed dated 17.06.2021?

5) Whether the defendant No.1 and 2 prove that there is no cause of action to this suit?

6) Whether the defendants No.1 and 2 prove that Court fee paid is insufficient?

7) Whether the defendants No.1 and 2 prove that the suit is bad for non-joinder and misjoinder of parties?

8) Whether the defendants No.1 and 2 prove that the suit is barred by law of limitation?

9) Whether the plaintiffs are entitled to the relief as sought for?

10) What order or decree?"

5. Subsequently, the petitioners/plaintiffs filed the instant application seeking deletion/striking off of issue No.4 on the ground that the said issue pertains to maintainability of the suit, without there being a prayer for cancellation of the Partition Deed. The said application having been opposed by the respondents/defendants, the Trial Court proceeded to pass the impugned order rejecting I.A.No.VII, aggrieved by which, the petitioners/plaintiffs are before this Court by way of the present petition.

6. A perusal of the material on record will indicate that, in the original suit, the petitioners/plaintiffs have sought for the following prayers:

"a…pass judgment and decree for partition and separate possession of the schedule properties in respect of Plaintiffs 1/6^th share by meets and bounds and

b…to cancel the registered partition deed dated 17-6-2021 and same has been registered in the office of the Sub-Registrar, Gandhinagar (Kacharakanahalli), Bangalore vide Registration No.KCH-1-00476-2021-22, CD NO.KCHD.842 dated 19-6-2021 and same is not binding on the Plaintiffs and

c. to pass such other order or decree as this Hon'ble Court deems fit in the circumstances of the Plaintiffs case and to award means profit, in the interest of justice and equity."

7. In this contex