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2022 Supreme(Online)(Kar) 42237
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER, 2022
BEFORE
THE HON9BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.18193 OF 2022 (GM-CPC)
BETWEEN
MR. MADHU G
S/O LATE GANGAPPA
AGED ABOUT 54 YEARS,
RESIDING AT NO.43/23,
2ND CROSS, PROMENADE ROAD,
FRAZER TOWN,
BANGALORE- 560005.
...PETITIONER
(BY SRI. VIVEK SUBBA REDDY, SENIOR COUNSEL
ALONG WITH SRI. BHUSHAN GUDEKOTE, ADVOCATE)
AND:
1 . MR. G. PRAKASH
S/O LATE GANGAPPA
AGED ABOUT 66 YEARS
RESIDING AT 42/2,
PRAGATHI 1ST FLOOR,
2ND CROSS, MILLERS ROAD,
BENSON TOWN,
BANGALORE - 560046.
G. SRIDHAR
S/O LATE GANGAPPA
SINCE DECEASED BY LRS.,
2
2.
SMT. VANI SRIDHAR
MAJOR
W/O LATE SRIDHAR
3 . SMT. RAMYA
MAJOR,
D/O LATE SRIDHAR
4 . SMT. RIYA
MAJOR
D/O LATE SRIDHAR
RESPONDENT NOS.2 TO 4 ARE
ALL AT NO.112, 2ND CROSS,
OMBR LAYOUT, BANASWADI,
BANGALORE - 560043.
5 . SMT. MEENA MANJUNATH
MAJOR
W/O MANJUNATHA
D/O LATE GANGAPPA,
NO.51, 5TH CROSS,
HANUMANTH NAGAR,
BANGALORE - 560 019.
SMT. CHANDRIKA GURU
W/O SRI GURU
D/O LATE GANGAPPA
SINCE DECEASED BY LRS
6.
SRI GURU
MAJOR,
FATHER'S NAME NOT KNOW
7 . MISS. PREETHI
MAJOR,
D/O LATE CHANDRIKA GURU
8 . SRI. RAJESH
MAJOR
S/O LATE CHANDRIKA GURU
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RESPONDENT NOS.6 TO 8 R/AT
BLOCK NO.3, FLAT NO.252,
SHIRKEY APTS, BANASWADI
BANGALORE - 560043.
9 . SMT. ANITHA SHIVAPRAKASH
MAJOR
D/O LATE GANGAPPA
R/AT NO.08, CAMBRIDGE ROAD,
ULSOOR, BANGALORE - 560 008.
10 . SMT. VIDYA SUNDAR RAJ
MAJOR
D/O LATE GANGAPPA
R/AT BOSE ROAD,
SAKLESHPUR - 578134
HASSAN DISTRICT.
SMT. LEELA GANGAPPA
W/O LATE GANGAPPA
SINCE DECEASED
BY OTHER RESPONDENTS
WHO ARE LR'S
..RESPONDENTS
(BY SRI. S. SUBHASH, ADVOCATE FOR RESPONDENT NO.1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR RECORDS IN O.S.No.8523/2002 PENDING ON THE FILE OF
COURT OF XLIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
AT BENGALURU AND SET ASIDE THE IMPUGNED ORDER DATED
01.09.2022 PASSED ON I.A.No.21 IN O.S.NO.8523/2002
PENDING ON THE FILE OF COURT OF XLIV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AT BENGALURU VIDE ANNEXURE-J
AND ALLOW I.A.NO.21.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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The plaintiff in O.S. No.8523/2002 on the file of the
XLIV Additional City Civil and Sessions Judge, Bengaluru,
has filed this writ petition challenging an Order dated
01.09.2022 passed therein by which the Trial Court
rejected an application (I.A. No.21) filed by him under
Order XIV Rule 5 of the Code of Civil Procedure, 1908 (for
short, 8the CPC9) seeking to recast issue No.3 and to frame
an additional issue.
The suit in O.S. No.8523/2002 was filed inter
alia for the following reliefs, in respect of the property
bearing No.43/37, 2nd cross, Promnade Road, Frazer
Town, Bengaluru, measuring 40 feet x 60 feet.
"(a) Partition and Possession of 1/8th
share in the schedule properties by metes and
bounds;
(a-1) To set aside the alleged family
partition dated 5.08.1987 and the alleged
registered deed dated:22.03.1989 which is
registered as
document
No.4394/1988-89,
Book No.1, volume No.2830, Pages 1 to 10
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registered in the office of the Sub Registrar,
Shivajinagar, Bangalore registered on 4.5.1989
and re-open the same and direct 4.5.1989 and
re-open the same and direct fresh petition in
accordance with law as per clause (a) above."
Initially, the suit in O.S. No.8523/2002 was filed by the
plaintiff for partition and separate possession of item Nos.1
to 4 properties. The defendant No.2 filed an application in
I.A. No.12 for deleting item Nos.1 to 3 properties and the
same was rejected by the Trial Court in terms of the Order
dated 14.03.2019 against which defendant No.2 preferred
W.P. No.13289/2019 before this Court, which was allowed
by this Court in terms of the Order dated 05.10.2021 and
consequently, the application of the plaintiff for deletion of
suit schedule item Nos.1 to 3 properties was allowed.
Thus, the suit was only in respect of suit item No.4
(referred supra) which shall henceforth be referred to as
'suit property'.
3.
The plaintiff claimed that the suit property was
purchased by the defendant No.2 from out of the funds
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generated from the joint family properties which was the
subject matter of the suit in O.S. Nos.5240/1988 and
154/1989. The plaintiff claimed that after preliminary
decree was passed in the said two suits, defendant No.2
had utilized the funds of the joint family and had
purchased the suit property in his name and therefore,
they were entitled for an undivided share in the suit
property.
4.
The defendant No.2 contested the suit by
claiming that the suit property was his self acquisition and
that he had not utilized the funds of the joint family to
purchase the same.
5.
Based on these rival contentions, the Trial
Court framed the following issues:
"1. Whether the plaintiff proves that the
suit properties are the joint family properties
as pleaded?
2. Whether the contesting defendant
proves the family partition referred to in the
para 4 of the Written Statement?
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3.
Whether the contesting defendant
proves that the suit item No.4 property is the
self acquired property as contended ?
4.
Whether the plaintiff is entitled for
the 1/8th share in the suit schedule property ?
5.
To what relief?"
Additional Issues:
"1.
Whether
the
suit
is
not
maintainable for the reasons stated in para 3
of the written statement?
Whether the suit is barred by
principles of res judicata?"
Amongst the issues so framed, on an application in I.A.
No.18 filed by the defendant No.2, issue Nos.1 and 2 and
additional issues were struck off by the Trial Court in terms
of the Order dated 21.07.2022 and issue No.3 was
modified as follows:
"Whether the Plaintiff proves that the 2nd
defendant
purchased
the
suit
schedule
property by utilizing the joint family funds ?"
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Based on these issues, the plaintiff adduced his
evidence and was cross-examined. Later, when the case
was listed for evidence of the defendants, the plaintiff filed
an application under Order XIV Rule 5 of the CPC., to
recast the issue No.3 and frame an additional issue as
follows:
Issues as they
currently stand
Amendment sought
3. Whether the Plaintiff
p
