IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.29658/2017 (GM-CPC) BETWEEN:
GANGADHARA MADIVALA, S/O MANJAYYA MADIVALA, AGED ABOUT 62 YEARS, R/AT NO.PERABE HOUSE, PERABE VILLAGE AND POST, PUTTUR TALUK, D.K.DISTRICT.
... PETITIONER (BY SRI B.S. SACHIN, ADVOCATE) AND:
1. NONAYYA MADIVALA, S/O MANJAYYA MADIVALA, AGED ABOUT 47 YEARS, R/AT NO. PERABE HOUSE, PERABE VILLAGE AND POST, PUTTUR TALUK, D.K.DISTRICT-574 201.
2. NALINI W/O THANIYAPPA, AGED ABOUT 55 YEARS, R/AT PADI HOUSE, SAJIPA MUNNUR VILLAGE AND POST, BANTWAL TALUK, D.K.DISTRICT-574 201.
3. ANNU @ SUNDARA MADIVALA, SINCE DEAD ON 28.6.2017 BY HIS LR’S 3(a) KAMALA, AGED ABOUT 56 YEARS, 3(b) AKSHAYA AGED ABOUT 20 YEARS, RESPONDENT NO.3(a) AND (b) IS THE WIFE AND SON OF DECEASED ANNU @ SUNDARA MADIVALA, R/AT NO. PERABE HOUSE, PERABE VILLAGE AND POST, PUTTUR TALUK, D.K.DISTRICT-574 201.
... RESPONDENTS …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 1.3.2017 PASSED IN O.S.6/2013 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND ACJM AT PUTTUR ON I.A.2 AT ANNEXURE-A AND CONSEQUENTLY ALLOW I.A. NO. 2 AS PRAYED FOR.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant No.1 filed the present writ petition against the order dated 01.03.2017 made in O.S.No. 6/2013 dismissing I.A.No.2 filed under Order XXVI Rule 9 r/w Section 151 of Code of Civil Procedure.
2. The first respondent herein who is the plaintiff before the Trial Court, filed suit for partition and separate possession in respect of suit schedule properties, morefully described in the plaint contending that the suit schedule properties are the joint family properties of plaintiff and defendants and there was no partition in the joint family and therefore, sought for the relief as prayed for in the plaint.
3. The petitioner/defendant No.1 and other defendants filed written statement, denied the plaint averments and contended that there was oral partition in the joint family. Therefore, the suit itself is not maintainable and therefore, sought for dismissal of the suit.
4. Even before commencement of evidence, the first defendant filed an application under Order XXVI Rule 9 r/w Section 151 of Code of Civil Procedure seeking to appoint a Court Commissioner to verify the separate possession of the property by the plaintiff and defendants, its boundaries , enjoyment, cultivation, age of improvements etc., reiterating the averments made in the written statement. The said application was resisted by the plaintiff by filing objections and it was contended that if the application is filed, it leads to collection of evidence and therefore, the application is not maintainable. It is further contended that the defendants have not produced any document to show that there was oral partition and that no oral partition was effected between the members of the joint family and therefore, sought for dismissal of the application.
5. The Trial Court, considering the application and the objections, by the impugned order dated 01.03.2017, dismissed the application filed by the first defendant under Order XXVI Rule 9 r/w Section 151 of Code of Civil Procedure. Hence the present writ petition is filed.
6. I have heard the learned counsel for the petitioner.
7. Sri B.S.Sachin, learned counsel for the petitioner/ first defendant, vehemently contended that the impugned order passed by the Trial Court rejecting the application for appointment of Court Commissioner is erroneous and contrary to the material on record. He further contended that there is a specific defence in the written statement that there was oral partition in the joint family. Therefore, appointment of Court Commissioner is necessary to inspect the spot and verify the respective possession of the properties with specific boundaries, in terms of the oral partition. The same has not been considered by the Trial Court and therefore, sought to set-aside the impugned order by allowing the writ petition.
8. Having heard the learned counsel for the petitioner, it is not in dispute that the plaintiff filed suit for partition and separate possession in respect of suit schedule properties contending that the plaintiff and defendants are the members of the joint family and there was no earlier partition. The same is disputed by the defendants by filing written statement specifically contending that there was an oral partition.
9. The averments made in the plaint and the written statement with regard to joint family and alleged oral partition between the members of the joint family has to be adjudicated after full-fledged trial between the parties, by producing oral and documentary evidence. Before evidence is commenced, the present application filed by the first defendant for appointment of Court Commissioner is nothing but collection of evidence. Since the plaintiff has filed the suit for partition and separate possession, it is for the plaintiff to prove that the suit schedule properties are the joint family properties and there was no earlier partition in the joint family and he is entitled to share.
10. The Trial Court considering the entire material on record, rightly recorded a finding that this is a suit filed by the plaintiff for partition and separate possession, it is the duty of the plaintiff to prove his case independently placing sufficient oral and documentary evidence before the Court. It is well settled principle of law that to know possession as well as cultivation, no commission is to be appointed. The burden is on the plaintiff to prove his case independently and prima- facie, if the burden is discharged by the plaintiff, then only burden will shift on the defendant to prove that there was an oral partition, which requires evidence. The application is pre-mature. The Trial court was justified in dismissing the application.
11. The petitioner/first defendant has not made out any ground to interfere with the impugned order passed by the Trial Court in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
12. It is needless to observe that after completion of evidence, both the parties are at liberty to file necessary application, if need arises in future, in accordance with law.
Sd/- JUDGE kcm