IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.13536 OF 2017(GM-CPC) BETWEEN:
SMT.ADILAKSHMMA W/O.THIMMAIAH AGED ABOUT 41 YEARS R/O.NELADIMMANAHALLI VILLAGE KALLEMBELLA HOBLI SIRA TALUK – 572 125 TUMKUR DISTRICT.
(BY SRI RAGHAVENDRA B.R., ADVOCATE) AND:
1. RANGANNA S/O.LATE RANGAPPA AGED ABOUT 74 YEARS R/AT.NANDIHALLI VILLAGE KORA HOBLI – 572 128 TUMKUR TALUK & DISTRICT.
2. DODDA KAMIAH S/O.LATE SANNA KAMAIAH AGED ABOUT 70 YEARS KORA HOBLI – 572128 TUMKUR TALUK & DISTRICT.
... PETITIONER 3. THE SPECIAL LAND ACQUISITION OFFICER KARNATAKA INDUSTRIAL DEVELOPMENT BOARD (KIADB), RASTHROTHANA BUILDING NRUPATHUNGA ROAD BANGALORE – 560 009.
... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED ON I.A. UNDER ORDER XIV RULE 5 OF CPC PASSED BY TRIAL COURT IN O.S.NO.1252/2011 DATED 20.02.2017 ON THE FILE OF II ADDL. CIVIL JUDGE AND JMFC AT TUMKUR VIDE ANNX-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:
O R D E R The plaintiff has filed the present writ petition against the order dated 20.02.2017 made in O.S.No.1252/2011 rejecting the application filed by the plaintiff under Order XIV Rule 5 of Code of Civil Procedure by imposing cost of Rs.500/-.
2. The petitioner – plaintiff filed suit for partition and separate possession of the suit schedule properties and also for declaration that the registered sale deed dated 27.10.2006 is not binding on her and for her equal share in Item No.2 of the suit schedule property and also for a direction the third defendant not to disburse the compensation amount in favour of the defendant Nos.1 and 2 which was awarded for acquisition of the suit schedule properties, contending that the plaintiff is the only daughter of defendant No.1. The plaintiff and defendant No.1 constituted Hindu undivided joint family and now the plaintiff is residing with her husband without division of the suit schedule properties which are the ancestral and joint family properties of the plaintiff and defendant No.1. The plaintiff and defendant No.1 are in joint possession and enjoyment of the suit schedule properties. The defendant No.2 is the purchaser of Item No.2 of the suit schedule property. Therefore, he has been made as a party to the suit. Defendant No.3 who is the Land Acquisition Officer is also one of the necessary party to this suit, because the suit schedule properties are acquired by defendant No.3 for industrial purpose. It was further contended that there was no partition in the joint family properties. Therefore, she is entitled for equal share in the suit schedule properties.
3. Defendant No.1 filed the written statement and contended that the suit filed by the plaintiff is not maintainable. But admitted that the plaintiff and the first defendant constituted Hindu undivided joint family and they are in possession of the joint family properties. It was further contended that he is the bonafide agriculturist and he is carrying on agricultural operations in both the schedule properties after the schedule property had fallen to his share and in a family partition held between himself and his brothers and also he is in enjoyment of the suit schedule properties. He further contended that he has borrowed a hand loan of Rs.40,000/- from the second defendant by agreeing to repay the same with 2% interest within 5 years. The second defendant agreed to pay the said amount with a condition that the first defendant shall execute the nominal sale deed in respect of Item No.2 of the schedule property in his name as a guarantee of the said hand loan amount and interest thereon. Defendant No.1 received hand loan amount of Rs.40,000/- from the second defendant on 27.10.2006 and executed nominal sale deed in his favour etc., Hence, he sought for dismissal of the suit.
4. The second defendant filed the written statement denying the plaint averments and contended that he is the bonafide purchaser of the Item No.2 of the schedule property. He further contended that the suit filed by the plaintiff is not maintainable and sought for dismissal of the suit.
5. The trial Court on the basis of the pleadings has framed seven issues on 05.10.2012. When the matter was posted for plaintiff’s further evidence, the plaintiff has filed application under Order XIV Rule 5 of Code of Civil Procedure to modify Issue No.5 to the effect that-
“Whether second defendant has to prove that the bonafide purchaser and first defendant has to discharge antecedents debt and necessary sale over the suit Item No.2 property?”
6. The application filed by the plaintiff under Order XIV Rule 5 of Code of Civil Procedure was objected by the defendant No.1 contending that the application is not maintainable. It is contended that when the matter was posted for cross examination of the plaintiff, she has filed the said application. It is further contended that the first defendant was the absolute owner of the suit schedule property bearing Sy.No.14/3 measuring 2 acres 13 guntas. The defendant No.2 has purchased only 1 acre of land in Sy.No.14/3 and it is only the nominal sale deed. Therefore, the application is not maintainable.
7. The second defendant filed the objections and contended that he is the bonafide purchaser from the first defendant and also contends that he has purchased only portion of first defendant’s property, but not the entire property. He further contends that the property sold in his favour can be apportioned to the share of the first defendant. Hence, sought for dismissal of the application.
8. The trial Court after considering the application and the objections, rejected the application filed by the plaintiff. Hence, the present writ petition is filed.
9. I have heard the learned counsel for the petitioner.
10. Sri. Raghavendra, learned counsel for the petitioner contends that the impugned order passed by the trial Court rejecting the application filed under Order XIV Rule 5 of Code of Civil Procedure is erroneous and contrary to the materials on record. He further contends that as per the pleadings, the first defendant has misused the income of the plaintiff without the knowledge of the plaintiff and without legal necessity has alienated Item No.2 i.e., 1 acre of the land in favour of the second defendant. Therefore, it is just and necessary to modify Issue No.5 as proposed in the application. It is further contended that modification of Issue No.5 is very much necessary and is entirely different from Issue No.5 which was proposed by the trial Court, earlier. Therefore, he prays for quashing the impugned order passed by the trial Court by allowing the writ petition.
11. Having heard the learned counsel for petitioner, it is an admitted fact that the plaintiff filed the suit for partition and separate possession in respect of the suit schedule properties contending that the plaintiff and first defendant are members of the joint family and there was no partition. The first defendant filed the written statement denying the plaint averments except relationship and that there was no partition between the plaintiff and the first defendant. He has further contended that he has executed a sale deed in respect of one acre of land to the second defendant, as a nominal sale for the amount due payable by him. The second defendant contended that he is the bonadife purchaser and he is in possession of one acre of land from the date of purchase.
12. The trial Court after considering the pleadings has framed the following issues:-
“1. Whether plaintiff proves that the suit schedule properties are the ancestral and joint family properties of the plaintiff and 1st defendant?
2. Whether plaintiff proves her equal share in the suit schedule properties? If so, to what extent?
3. Whether plaintiff proves that the sale deed dated 27.10.2006 is not binding on her share in the suit schedule Item No.2 property?
4. Whether 2nd defendant proves that the suit is bad for mis-joinder or non-joinder of necessary parties?
5. Whether 2nd defendant proves that he is the bonafide purchaser of the suit schedule Item No.2 property?
6. Whether plaintiff is entitled for the reliefs as prayed?
7. What order or decree?”
13. The present application filed by the plaintiff is to modify Issue No.5. The original issue and the proposed modification of issue sought by the plaintiff reads as under:-
Original Issue:
“Whether 2nd defendant proves that he is the bonafide purchaser of the suit schedule Item No.2 property?”
Modification of the Issue:
“Whether second defendant has to prove that the bonafide purchaser and first defendant has to discharge antecedents debt and necessary sale over the suit Item No.2 property?”
14. After considering the pleadings and issues framed, the trial Court has recorded a finding that there is no much difference with the original Issue No.5 and proposed modified Issue No.5, since defendant No.2 has to prove that he is the bonafide purchaser of Item no.2 of the schedule property and when it comes to the bonafide purchaser, he has to prove all the legal necessity of the first defendant etc., Under these circumstances, the modification of Issue No.5 will not serve any purpose. It is further held that the plaintiff has taken sufficient opportunity to lead her chief examination. Thereafter, further chief examination was taken as Nil and posted for cross-examination of the plaintiff. At that time, the present application is filed. Hence, it is for the plaintiff to cross examine DWs’1 & 2 to prove that the alienation made by the first defendant in favour of the second defendant to an extent of one acre of land is not binding on her. Ultimately, it is for the second defendant as per the original issue and proposed modified issue to prove that he is the bonafide purchaser from the first defendant in respect of Item No.2 of the property. The impugned order passed by the trial Court is just and proper, no interference is called for under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
Sd/- JUDGE VMB