IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.49047/2017 (GM – CPC) BETWEEN:
RAMAKRISHNA SHETTY S/O UMAVATHI SHETTY 57 YEARS R/AT PALLATTE GUTTU HOUSE MARKET ROAD, NADSAL VILLAGE P.O. PADUBIDRI – 574111 UDUPI DISTRICT. ... PETITIONER [BY SRI K.S.VYASA RAO, ADV.] AND:
1. DEVESHA SHETTY 42 YEARS 2. HARISH SHETTY 40 YEARS 3. GULABI SHETTY 70 YEARS 4. SHOBHAVATHI SHETTY 38 YEARS 3RD RESPONDENT IS THE WIFE AND OTHER RESPONDENTS ARE THE CHILDREN OF LATE GOPAL SHETTY ALL ARE R/AT THENKA BETTU HOUSE DOOR No.2-205, PADUBETTU VILLAGE P.O. PADUBIDRI – 574111 UDUPI DISTRICT.
5. CHANDRASHEKAR SHETTY S/O SOOUR SHETTY 58 YEARS OPP. GIRI CHICKEN STALL P.O. PADUBIDRI – 574111 UDUPI DISTRICT. …RESPONDENTS [BY SRI K.PRASANNA SHETTY, ADV. FOR R-1 TO R-4; V/O DATED 07.02.2019, NOTICE TO R-5 DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER ANNEXURE-A DATED 16.09.2017 PASSED BY III ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI ON I.A. No.10 IN O.S.NO.513/2015.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard the learned counsel for the parties.
2. The petition arises against of the order passed by the Court of Civil Judge & JMFC, Udupi in O.S.NO.513/2015 whereby the application filed by the petitioner herein under Order XIV Rule 5[1] and Section 151 of Code of Civil Procedure, 1908 to frame additional issues mentioned in the application has been rejected.
3. The respondents herein had filed O.S.No.513/2015 seeking the preliminary decree for partition, declaring that the plaintiffs are entitled to 4/6 share in the plaint properties and directing division of the plaint properties into 6 fair and equal shares by metes and bounds and allotment and delivery of four such share to the plaintiffs.
4. In the said suit proceedings, issues were framed as under:
“1. Whether plaintiffs prove that the suit schedule properties are the joint family properties?
2. Whether plaintiffs prove that they are entitled for share?
3. Whether defendants prove that the suit is bad for non-joinder of necessary parties?
4. Whether the court fee paid is proper and sufficient?
5. Whether plaintiffs are entitled for the reliefs sought?
6. What order of decree?”
5. The petitioner has sought for further additional issues to be framed which are as under:
“01] Whether the 1st defendant proves that the suit properties are the joint family properties of LRs of late Dasu Shetty?
02] Whether the 1st defendant proves that father of the 2nd defendant Sooru Shetty was not a tenant of suit property? If so, whether the defendant proves that 2nd defendant is a unnecessary party to suit?
03] Whether the 1st defendant proves that they have affected vast and valuable improves in item No.2 of the plaint A schedule property?
04] What is the income of the suit schedule properties? If so, at what rate?
05] Whether the suit of the plaintiff is hit by abandonment, waiver, ouster, adverse possession and limitation?
06] Whether the suit is barred by law of limitation?”
6. Learned counsel Sri.K.S.Vyasa Rao appearing for the petitioner would submit that the petitioner restricts the claim only to the proposed additional issue Nos. 4 to 6 to be framed and submits that the Trial Court has not assigned any reasons in rejecting the claim of the petitioner regarding framing of these issues.
7. Learned counsel for the respondents supporting the impugned order submits that, the additional issues sought to be framed are not necessary in a partition suit. More particularly, when the parties are claiming their rights through Dasu Shetty – the original tenant who filed the application before the Land Tribunal.
8. In the circumstances, this Court is of the considered opinion that there is some force in the arguments advanced by the learned counsel for the respondents in as much as framing of additional issues as proposed by the petitioner is concerned. These issues are not necessary in a partition suit that too the relief sought in the plaint is only for partition not for injunction. The additional issues now proposed would be broadly covered in the original issues framed on 23.07.2016.
There is no jurisdictional error in the order impugned. Writ petition stands dismissed.
In view of the dismissal of the writ petition, all the pending IAs shall stand disposed of and interim order granted also stands vacated.
Sd/- JUDGE NC.