The captioned writ petition is filed by the plaintiff

feeling aggrieved by the order dated 29.6.2017

wherein the learned Judge has proceeded to reject the

application filed in I.A.No.4 filed under Order XXIV

Rule 5 of CPC.

2.

The facts leading to the case are as under:

The present petitioner instituted a suit in

O.S.No.59/2015 seeking division in the suit schedule

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property and also her legitimate share in the suit

schedule properties by effecting partition by metes

and bounds. The petitioner is questioning the

settlement deed executed by late Smt. Kalyani in

favour of defendant No.1. The sum and substance of

the plaint is that the suit schedule property is

originally mulageni land and their mother Kalyani

purchased

the

mulageni

tenancy

rights

under

registered sale deed dated 3.4.1945 and therefore the

present petitioner contended that Form No.7 filed by

defendant No.1 was on behalf of the family and

therefore, the occupancy rights granted in favour of

defendant No.1 would enure to the benefit of the

petitioner also. The second limb of claim made by the

petitioner is that the alleged settlement deed is

seriously disputed by the plaintiff and the same is

specifically averred at Para (III) of the plaint. The

petitioner claims that defendant No.1 taking undue

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advantage of trust and confidence reposed by their

mother has concocted a fraudulent document styled

as settlement deed. Therefore, the petitioner claims

that settlement deed is not at all binding on the

petitioner and claimed her 1/3^rd share in the suit

schedule property.

2(a) Based on the rival contention, the trial

Court framed the following issues:

"1) Whether plaintiff proves that plaint 'A'

schedule property moolageni tenancy right was

purchased by mother of plaintiff and defendants

under registered sale deed dated: 3/4/1945?

2) Whether plaintiff further proves that plaintiff's

mother filed declaration before the Land Tribunal

in Form No.7 claiming occupancy right through

her son ie., 1st defendant, it was granted for and

on behalf of plaintiff's mother late Smt. Kalyani?

3) Whether plaintiff proves that 1st defendant by

playing a fraud on his mother got executed

Settlement Deed settling the plaint 'A' schedule

property in his favour?

4) Whether 1st defendant proves that the Land

Tribunal Karkala granted the occupancy right

absolutely in his favour in TRL 1749/76-77 dated:

10/1/1977, in the Order Land Tribunal has stated

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that 1st defendant previously acquired by him on

Moolageni

tenancy

right

as

per

registered

Settlement deed dated: 15/4/1968?

5) Whether the plaintiff proves that defendants

have refused to effect partition of suit property?

6) Whether the plaintiff is entitled partition and

separate possession of suit property as sought

for?

7) What order and decree?"

3.

The petitioner filed an application and

sought recasting of issues which is found at Annexure-

B to the writ petition. As it would be useful to

ascertain the actual controversy between the parties

and whether the order under challenge would warrant

interference and whether there would be requirement

of recasting of all issues as claimed by the petitioner

vide Annexure-B, the same is culled out as under:

"1. Whether the first defendant proves that

the registered Settlement Deed dated 15-04-

1968 alleged to have been executed in his

favour is true, valid and binding?

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2. Whether the plaintiff proves that the

alleged settlement deed is brought about by

undue influence and not voluntary?

3. Whether the plaintiff proves that the

defendant filed declaration for and on behalf

of his mother Smt.Kalyani?

4. Whether the plaintiff proves that the suit

properties are liable to division into three

equal shares ignoring the settlement deed?

5. What decree the parties are entitled?"

4.

Heard the learned counsel for the petitioner

Perused the issues framed by the Court below. I have

also perused the issues which are sought to be

recasted by the petitioner.

5.

If the averments made at Para III (a)