IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST 2017 BEFORE THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA WRIT PETITION Nos.8172-8175 OF 2016 (GM-CPC) BETWEEN:
1. SMT.KAMALA NARAYANA, AGED ABOUT 53 YEARS, W/O SRI.S.P.NARAYANA, JUNIOR COLLEGE ROAD, MADIEREI-571201. PRESENTLY RESIDING AT NO.108, 12TH CROSS, 6TH A MAIN, MAHALAKSHMIPURAM POST, J.C.NAGARA, KURUBARA HALLI, NEAR SHANKAR MUTT, BENGALURU-560 086.
JUNIOR COLLEGE ROAD, MADIKEREI TOWN-571201.
2. SMT.M.VANISHREE RAVISHANKAR, AGED ABOUT 48 YEARS, W/O SRI.M.RAVISHANKAR, JUNIOR COLLEGE ROAD, MADIKEREI, PRESENTLY RESIDING AT NUMBER7, I MAIN ROAD, BESANTNAGAR, CHENNAI-600090.
3. SMT.SUMAN N PONNANGALA, AGED ABOUT 38 YEARS, W/O SRI.NARAYANA PRASAD PONNAGALA, JUNIOR COLLEGE ROAD, MADIKEREI, PRESENTLY RESIDING OF ROOM NO.3, I BUILDING, A-1, WING, GROUND FLOOR, HAHUR VIVEKANANDA CO.OPERATIVE, HOUSING SOCIETY LIMITED, SARVODAYA NAGAR, MULUND WEST, MUMBAI-400080. …PETITIONERS (BY SRI.S.R.HEGDE HUDLAMANE, ADVOCATE) AND:
1. SRI.M.K.RAMESH, AGED ABOUT 78 YEARS, S/O LATE MAKKIMANE KRISHNAIAH, DOOR NUMBER 22/7, JUNIOR COLLEGE ROAD, MADIKEREI TOWN, KODAGU DISTRICT-571201.
2. SRI.ABDUL KHADER MUNDOL, AGED ABOUT 56 YEARS, S/O LATE ABDULA MUNDOL, TEKKI VILLAGE, AND POST, KASARAGOD DISTRICT, KERALA STATE-571021.
3. K.M.ABDULA KUNHI, AGED ABOUT 56 YEARS, S/O AHAMMED CHERIYAJI, INDIRANAGAR, CHENAGALA POST, KASARAGOD DISTRICT, KERALA STATE-571021.
4. SRI P.A.KUNHAMMED, AGED ABOUT 57 YEARS, S/O LATE ABOOBAKAR HAJI, SOLAR HOUSE, PUCHAKAD, KEEKANAM POST, PALLIKERA, KASARAGOD DISTRICT, KERALA STATE-571021.
5. SRI.P.HAMZA, AGED ABOUT 59 YEARS, S/O LATE ABBABAKAR HAJI, ANAS, POOCHAKAD, KEEKANAM POST, PALLIKEREA, KASARAGOD DISTRICT, KERALA STATE-571021.
6. SRI.N.A.ABDUL KHADER, AGED ABOUT 54 YEARS, S/O LATE K.ABDULLA, KALLUVALAPPLI HOUSE, CJM ROAD, KUDLU VILLAGE, KASARAGOD DISTRICT, KERALA STATE-571021.
7. SMT.K.NOORJAHAN, AGED ABOUT 51 YEARS, D/O SRI UMMER HAJI, W/O SRI.MOIDEEN KUTTY POCKER, ABDULLA MANZIL, ORAVANAGARA, KALAND VILLAGE, AND POST, KASARAGOD DISTRICT, KERALA STATE-571021.
8. SMT.V.MAIMOONA, AGED ABOUT 52 YEARS, D/O LATE V.MOHAMMED, W/O SRI.ABDULLA M.HANEEF, AYSHA MANZIL, ORAVANAGARA, KALAND VILLAGE AND POST, KASARAGOD DISTRICT, KERALA STATE-571021.
9. SMT.MOHAMMED NIZAM AHAMMED, AGED ABOUT 37 YEARS, S/O ABDULLA AHAMMED, APSARA VILLA, MELPARAMBA, KALNAD VILLAGE, AND POST, KASARAGOD DISTRICT, KERALA STATE-571021.
10. SRI.ABDULLA MOHAMMED KUTTY, AGED ABOUT 64 YEARS, S/O MUHAMMED KUTTY HAJI, KHADEEJA VILLA, NEW BEVINJE POST, CHENGALA, KASARAGOD DISTRICT, KERALA DISTRICT-571021.
11. SRI.HABIB UR REHMAN MUNDOL, AGED ABOUT 70 YEARS, S/O.SRI ABDULA MUNDAL, THEKKIL POST, CHENGALA, KASARAGOD DISTRICT, KERALA STATE-571021.
12. SMT.PREMA.S.RAO, AGED ABOUT 77 YEARS, W/O.SHRI.P.R.S.RAO, NO.J 104 AND 106, POORVA GRACER APARTMENT, AMRITHA HALLI, BELLARY ROAD, BENGALURU-92.
13. SRI.DR.G.K.BHAT KHANDIGE, AGED ABOUT 75 YEARS, S/O DR.K.KRISHNA BHAT, SAMUDDHI, NO.376, 24TH B CROSS, 44TH MAIN, BANASHANKARI 2ND STAGE, BENGALURU-70.
14. SHRI DR.JAYAPRAKASH KHANDIGE, AGED ABOUT 73 YEARS, S/O DR.K.KRISHNA BHAT, KHANDIGE CLINIC NO.15/9/480, KADRI POST, KADRI ROAD, MANGALURU-575003.
15. SMT.SUMALATHA V.BHAT, AGED ABOUT 71 YEARS, W/O SHRI.B.V.BHAT, NO.197, 2ND B MAIN, 3RD CROSS, 1ST PHASE, V.B.H. COMPLEX, GIRINAGARA, BENGALURU-560085.
16. SHRI.RAJARAMA KHANDIGE, AGED ABOUT 68 YEARS, S/O DR.K.KRISHNA BHAT, D.NO.28, KRISHNA, 5TH CROSS, 5TH BLOCK, KORAMANGALA, BENGALURU-560034.
17. SHRI.M.CHITTARAJAN, AGED ABOUT 71 YEARS, S/O LATE M.KESHAVA BHAT, NO.75, SHUBHADHA, 6TH CROSS, MARUTHI LAYOUT, VASANTHAPURA, BENGALURU-560061.
18. SHRI M.RADHAKRISHNA, AGED ABOUT 71 YEARS, S/O M.KESHAVA BHAT, NO.75, SHUBHADHA, 6TH CROSS, MARUTHI LAYOUT, VASANTHAPURA, BENGALURU-61.
19. SMT.SUMITHRA.G.KHANDIGE, AGED ABOUT 71 YEARS, W/O DR.G.K.KHANDIGE, NO.7, RAMANATHAN STREET, ALAGAPPA NAGARA, KILPAUK, CHENNAI-600010. …RESPONDENTS.
(BY SRI.G.V.NARASIMHAMURTHY FOR R2-11, V/O DT.8.6.16 SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT V/O DT.24.3.16 NOTICE TO R12-19 ARE DISPENSED WITH.) ******* THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO QUASH THE IMPUGNED ORDERS PASSED BY THE TRIAL COURT ON IA NO.XXV TO XXVIII (I.A.NO.25 TO 28) DTD.3.2.2016 MADE IN O.S.NO.43/2008 ON THE FILE OF CIVIL JUDGE SR.DIVISION AT MADIKERI, KODAGU DISTRICT AS PER ANNEXURE-K REJECTING ALL THE APPLICATIONS WITH COST BY EXERCISING THE SUPERVISORY JURISDICTION OF THIS COURT.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: -
ORDER Though these writ petitions are listed for preliminary hearing ‘B’ Group along with I.A.1/2017 filed for early hearing by respondent Nos.2 to 11, with the consent of learned counsel appearing on both sides, they are heard finally.
2. The petitioners herein are plaintiffs in O.S.No.43/2008, which is pending on the file of Civil Judge (Senior Division) at Madikeri. That suit has been filed by them against the defendants seeking the relief of partition and separate possession of the suit schedule properties. It is the contention of the plaintiffs that the said properties are joint family properties and that they are entitled to a share in the said properties.
3. During the pendency of the suit, plaintiffs had filed I.A.No.25 under Section 151 of CPC, I.A.No.26 under Order XVIII Rule 17 of CPC to recall PW.1, I.A.No.27 under Order XVI Rule 6 of CPC and I.A.No.28 under Order VII Rule 14(3) of CPC for the purpose of receiving the documents to recall PW.1 and to get the documents marked in evidence. Objections were filed to the said applications. By the impugned order dated 3.2.2016, the trial Court has dismissed the said applications essentially on the ground of res judicata. Being aggrieved plaintiffs have preferred these writ petitions.
4. I have heard the learned counsel for the petitioners and learned counsel for the respondents and perused the material on record.
5. It is noted from the issues and additional issues framed in the suit that the burden of proving issue Nos.1 to 5 is cast on the plaintiffs as they have approached the Court seeking the relief of partition and separate possession on the premise that the suit schedule properties are joint family properties and that defendant No.10 - their father, has sold the said property without the consent of the plaintiffs. Issue No.6 and additional issue Nos.1 and 2 have been framed, casting the burden on defendant No.1 or the other defendants to prove that the suit properties are not joint family properties. The bone of contention between the parties is with regard to suit item No.5 which has been sold by defendant No.1 in favour of defendant Nos.2 to 11, without the consent of plaintiffs. Plaintiffs contend that the said item also being an item of joint family, their father, defendant No.1 could not have alienated the same in favour of defendant Nos.2 to 11. In order to discharge their burden, plaintiffs had earlier filed similar applications. Those applications were dismissed on the short ground that the applications were not supported by sufficient reasons for being considered or for that matter being allowed. But plaintiffs have now filed applications giving in detail the reason as to why they could not file the documents at an earlier point of time and as to how those documents are necessary for discharging the burden cast on them so as to establish that the suit properties are joint family properties. As the burden of proof is cast on the plaintiffs, the applications ought to have been allowed. Therefore, the order of the trial Court dismissing the applications is quashed, the said applications are allowed. The trial Court is directed to recall PW.1 and permit the plaintiffs to mark the necessary documents and to dispose of the suit in accordance with law.
6. Writ petitions are allowed in the aforesaid terms. No costs.
Sd/- JUDGE NG* CT: RG