The petitioner filed this writ petition seeking to quash

the

impugned

order

dated

12.06.2019

passed

on

I.A.No.XIV in O.S.No.225/2012 on the file of the Additional

Civil Judge and JMFC, Sankeshwar.

Brief facts leading to the filing of this writ

petition are as under:

Respondent Nos.1 to 3 filed a suit for partition and

separate possession in O.S.No.225/2012 against the

petitioner and respondent Nos.4 to 6. The petitioner filed

- 3 -

written statement denying the averments made in the

plaint. The petitioner has taken a specific defence in the

written statement that suit is bad for non-joinder of all the

properties and the same is barred by limitation. The trial

court framed issues. The petitioner filed an application in

I.A.No.XIV to frame additional issue with regard to

limitation and suit is not maintainable for partial partition

as respondent Nos.1 to 3 have not included all the joint

family properties. The said application was opposed by

respondent Nos.1 to 3 by filing objections. The trial court

after hearing the parties rejected the said application vide

order dated 12.06.2019. Hence, this writ petition.

Heard the learned counsel for the petitioner and

learned counsel for the respondents.

Learned counsel for the petitioner submits that

petitioner has taken a specific defence in the written

statement that suit is barred by limitation and also taken a

specific defence that respondent Nos.1 to 3 have not

included other joint family properties. He submits that the

- 4 -

suit for partial partition is not maintainable. He submits

that the trial court has not framed issue on the point of

limitation and maintainability of the suit for partial

partition. He submits that the trial court rejected the

application solely on the ground that plaintiff No.1 was

born on 27.09.1999 and plaintiff No.2 was born on

12.12.2002. He submits that trial court has recorded

finding on the merits of the case rather than recording

finding on the application. He submits that the impugned

order passed by the trial court is perverse and arbitrary.

Hence, on these grounds he prays to allow the writ

petition.

Per contra, learned counsel for the respondents

supports the impugned order. He submits that the

impugned order passed by the trial court is just and

proper and does not call for any interference by this court.

Hence, he prays to dismiss the writ petition.

Heard, perused the records and considered the

submission of the learned counsel for the parties.

- 5 -

7.

It is not in dispute that respondent Nos.1 to 3

filed the suit for partition and separate possession. The

petitioner filed written statement taking specific defence

that the suit filed by respondent Nos.1 to 3 is barred by

limitation. Further, the petitioner has also taken a specific

defence that respondent Nos.1 to 3 have not included

other joint family properties and hence, the suit for partial

partition is not maintainable. The trial court has recorded

finding on the merits of the case rather than recording

finding on the application. Order XIV Rule 1 of CPC reads

as under:

“1. Framing of issues. –

(1) Issues arise when a material proposition of fact or law is

affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact

which a plaintiff must allege in order to show a right to sue or a

defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party denied by

the other shall form the subject of distinct issue.

(4) Issues are of two kinds :

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the Court shall, after reading

the plaint and the written statements, if any, and [after

examination under rule 2 of Order X and after hearing the

- 6 -

parties or their pleaders], ascertain upon what material

propositions of fact or of law the parties are at variance, and

shall thereupon proceed to frame and record the issues on

which the right decision of the case appears to depend.