ORDER

Aggrieved by the order passed on IA filed under Order

14 Rule 5 read with Section 151 of Code of Civil Procedure (CPC) in OS.No.312/2020 dated 20.01.2024 passed by the III Additional Senior Civil Judge, Bengaluru, Rural District, the defendant therein has preferred this instant writ petition.

2. The respondent herein, who is the plaintiff in the Original Suit has filed OS.No.312/2020 with the following prayers;

"Therefore, it is most humbly and respectfully prayed before this Hon'ble Court that it may be pleased to pass a judgment and decree:

To declare that the plaintiff is the absolute owner in lawful possession and enjoyment of the suit schedule property.

a) Granting permanent injunction restraining the defendants, their heirs, men, agents, attorney or any other the person claiming under them from interfering with the peaceful possession and enjoyment of the schedule property by the plaintiff.

b) Grant cost of this litigation.

c) Grant any other relief/s which is deemed fit in the facts and circumstances of the case in the interest of justice and equity."

3. The petitioner who is the defendant, on the ground that suit schedule property was alienated in favour of her vendor on 02.03.1979 by the ancestor of the plaintiff/respondent herein and that her vendor has in turn sold the property to the petitioner/defendant by registered sale deed 20.10.1993, has prayed for dismissal of the suit.

4. Based on the pleadings the Trial Court has framed the following issues:

"1. Whether plaintiff proves that, she is the absolute owner and in possession of suit property?

2. Whether plaintiff proves that, the alleged interference of defendant?

3. Whether plaintiff is entitled for the relief of declaration as sought?

4. Whether plaintiff is entitled for the relief of permanent injunction?

5. What Decree or Order?"

5. The petitioner has filed an application under Order

14 Rule 5 read with Section 151 of CPC for framing of additional issues as follows;

"1. Whether the suit is valued properly and correct court fee is paid on the plaint?

2. Whether the defendant proves that, the suit is barred by law of limitation?

3. Whether the defendant proves that, the suit is not maintainable?"

6. The Trial Court has framed the additional issue as follows 'whether the Court fee paid by the plaintiff is in- sufficient'. Not satisfied by the same and on the ground that the additional issues on limitation and maintainability are necessary, the present writ petition is filed.

7. The case of the petitioner is that she has taken a specific defence before the Trial Court that the suit schedule property was alienated way back in the year 1979 by the ancestor of the respondent / plaintiff and that their family has no right title or interest since 1979 and that the petitioner/defendant has purchased the same in the year 1993 and she has become the absolute owner. The plaintiff/respondent has not challenged either of the sale deeds or has not made a prayer to the effect that the said sale deeds are not binding on her and for that reason, it is prayed that the Trial Court ought to have framed the other two additional issues on limitation and maintainability as prayed by the petitioner herein. On the said ground, it is prayed that the writ petition be allowed.

8. Per contra, learned counsel for the respondent takes contends that the property sold under the said sale deeds are different from the suit schedule property and he further justifies the order passed by the Trial Court and prays for dismissal of the writ petition. The question that arises for consideration is, did the Trial Court err in not framing the additional issues as prayed by the petitioner/defendant.

9. Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other.

10. The case of the plaintiff/respondent is that she is the owner of the suit schedule property and because of which she has prayed for a relief of declaration and permanent injunction against the defendant. The defenda