IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION NOs.30097-30098 OF 2018 (GM-CPC) BETWEEN:
SMT. NILIMA, AGED ABOUT 63 YEARS, W/O SRI. NIKHIL UBHAYAKAR, RESIDING AT COTTAGE NO.3, PANDURANGA ASHRAM, 8TH MAIN, MALLESHWARAM, BENGALURU – 560 055.
... PETITIONER (BY SRI. SHANKARANARAYANA BHAT N, ADVOCATE) AND:
N. BHASKAR RAO SINCE DECEASED BY HIS LRs.
1. SRI. N.GURUPRASAD, AGED ABOUT 64 YEARS, S/O LATE N.BHASKAR RAO, RESIDING AT NO.47/1 – A, SAPHALYA, 13TH CROSS, 8TH MAIN, MALLESWARAM, BENGALURU – 560 003.
2. SRI. N.ASHWIN, AGED ABOUT 57 YEARS, S/O LATE N.BHASKAR RAO, RESIDING AT MASON NEST, 2ND FLOOR, 13TH CROSS, 6TH MAIN, MALLESWARAM, BENGALURU – 560 003.
... RESPONDENTS (BY SRI. N.MAHALINGA BHAT, ADVOCATE FOR R1; SRI. K.S.RAMESH, ADVOCATE FOR R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RELEVANT RECORDS AND SET ASIDE THE ORDER PASSED BY THE COURT OF THE 22ND ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-7) IN O.S.216/2007 ON I.A.NOS.1 & 2 OF 2018 DATED 22.06.2018 IS PRODUCED AND MARKED AS ANNEXURE – G IN THIS WRIT PETITION AND ETC., THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Mr.Shankaranarayana Bhat.N, learned Counsel for the petitioner.
Mr.N.Mahalinga Bhat, learned Counsel for respondent No.1 Mr.K.S.Ramesh, learned Counsel for respondent No.2.
Petition is admitted for hearing. With the consent of the parties, the same is heard finally.
2. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the Order dated 22.6.2018 passed by the trial Court, by which the application filed by 2nd respondent under Order XIV Rule 5 of Code of Civil Procedure has been disposed of by reframing the issues.
3. The facts give rise to filing of this writ petition briefly stated are, that the respondents have filed a Suit seeking the following reliefs:
“1. declaring the deed of Gift dated 24.11.2001 regd as Document No.4145/01-02 stored in CD No.01 of Book-I, before the Office of the sub-Registrar, Rajajinagar, Bangalore-10, not binding on the Plaintiff.
2. To further declare any subsequent acts regarding khatha transfer in respect of the schedule property in favour of the defendant as illegal and improper.
3. Consequent permanent injunction against the defendant, her husband and family members restraining from interfering with the peaceful possession, enjoyment and occupation of the schedule property by the plaintiff.”
In paragraph 4 of the plaint, the plaintiff has averred that Sri.N.Ganapath Rao had executed settlement deed dated 20.11.1974. The aforesaid fact has been admitted by the defendants in their written statement. At the stage of final arguments, 2nd respondent herein filed an application for framing the following issues:
“1. Whether the defendant proves that she acquired valid title and exclusive possession to the suit schedule property by virtue of the registered Gift Deed dated 24.11.2001 and the subsequent rectification of the said Gift Deed dated 17.11.2003, executed by her father viz., the deceased plaintiff in the above suit during his life time or not ?
2. Whether the nature of acquisition of the suit schedule property by the deceased plaintiff under the admittedly registered settlement deed dated 20.11.1974 between the father of plaintiff viz., Sri.N.Ganapath Rao and his children, whether the deceased plaintiff had the exclusive right, title and interest to in turn execute and register the Gift Deed dated 24.11.2001 and the subsequent rectification of the Gift Deed dated 17.11.2003 allegedly gifting away the entire suit schedule property in favour of the defendant or not ?”
4. The trial Court by the impugned Order dated 22.6.2018 while dealing with the aforesaid application, reframed the issues as follows:
“1. Whether the plaintiff proves that defendant got executed Gift Deed dated 24.11.2001 and as such Rectification Deed dated 17.11.2003 under mis-representation, fraudulent intention etc ?
2. Whether the defendant proves that plaintiff had clear title and possession over the suit property by virtue of registered Settlement Deed dated 20.11.1974 ?”
In the aforesaid facts and background, the petitioner has approached this Court.
5. Learned counsel for the petitioner submits that in the entire plaint, neither any averment nor any challenge has been made to the rectification dated 17.11.2003. Therefore, the first issue framed by the trial Court by the impugned Order cannot be sustained in the eye of law. It is further submitted that so far as the second issue is concerned, the execution of registered settlement deed is admitted by the parties. Therefore, no issue was required to be framed with regard to registered settlement deed. It is also urged that in any case, the burden is on the defendant to prove the fact that by virtue of settlement deed, the plaintiffs have acquired title and possession.
6. Learned counsel for respondent No.2 fairly submitted that no challenge has been made to Rectification deed dated 17.11.2003, however, it is admitted that the main document i.e., Gift deed has been challenged by the plaintiff. Therefore, the trial Court has rightly framed the first issue in the impugned Order. It is also submitted that the second issue has also been correctly framed as the defendant is the daughter and the plaintiff, who was the father had instituted the Suit.
7. Learned counsel for respondent No.1 has adopted the submissions made by learned counsel for respondent No.2.
8. I have considered the averments made by the learned counsel for the parties.
9. It is trite law that the issues have to be framed on the basis of the pleadings of the parties. From the averments made in the plaint, it is evident that there is lot of doubts about the Rectification deed dated 17.11.2003 in the entire plaint. In the absence any pleading with regard to rectification deed, first issue framed by the trial Court cannot be sustained in the eye of law as there is no pleading in the plaint.
10. From perusal of paragraph 4 of the plaint, as well as paragraph 8 of the written statement, it is evident that the execution of the registered Settlement deed is admitted by the parties to the Suit. Besides that, the fact whether or not the plaintiff has acquired title and possession over the suit schedule property by virtue of registered Settlement deed dated 20.11.1974, burden to prove the second issue viz., whether the defendant proves that plaintiff had clear title and possession over the property by virtue of registered Settlement Deed dated 20.11.1974, is on the plaintiff. Therefore, the aforesaid issue has also not been correctly framed, the impugned Order suffers from an error apparent on the face of the record, as well as non application of mind. The impugned order, therefore, cannot be sustained in the eye of law and it is, accordingly quashed and set-aside.
11. At this stage, learned counsel for the respondent No.2 submits that Suit for partition is instituted in the year 2007 and the parties are ready and willing to co-operate with the trial Court in speedy disposal.
12. In view of the aforesaid submissions and in the background of the fact that Suit is pending since 2007, the trial Court is directed to make an endeavour to dispose of the proceedings in the Suit, as expeditiously as possible, preferably within a period of six months from the date of receipt of certified copy of the order passed today.
Accordingly, the petition is disposed of.
Sd/- JUDGE ln.