IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA W.P.No. 7088/2019 (GM-CPC) BETWEEN 1. SMT. ROOPA D/O. SHIVANANDA REDDY AGED ABOUT 34 YEARS, 2. SMT LALITHA D/O SHIVANANDA REDDY AGED ABOUT 32 YEARS, 3. SRI NAVEEN S/O SHIVANANDA REDDY AGED ABOUT 30 YEARS, ALL ARE R/AT B-CHANNASANDRA VILLAGE, BANASWADI POST BANGALORE – 560043 (BY SRI. C M NAGABUSHANA, ADV.) AND 1. SRI SHIVANANDA REDDY S/O LATE K T NAGAPPA REDDY AGED ABOUT 56 YEARS 2. SRI K N SHIVASHANKAR REDDY S/O LATE K T NAGAPPA REDDY AGED ABOUT 63 YEARS R1 & R2 R/AT DODDA KANNAHALLI VILLAGE KARMALLARAM POST ... PETITIONERS BANGALORE SOUTH TALUK BENGALURU - 560034 3. SRI K N SANANDA GANESH S/O LATE K T NAGAPPA REDDY AGED ABOUT 61 YEARS R/AT DODDA KANNAHALLI VILLAGE, KARMALLARAM POST BANGALORE - 560035 PRESENTLY RESIDING AT NO 32/2, GOWRISHANKARA NILAYA, CHURCH GATE, SIDDAPURA ROAD, CHIKKA KANNAHALLI, KARMALARAM POST BENGALURU - 560035 4. SMT KANAKARATHNAMMA W/O LATE KRISHNA REDDY D/O LATE K T NAGAPPA REDDY AGED ABOUT 71 YEARS R/AT DODDA KANNAHALLI VILLAGE, KARMALLARAM POST BANGALORE - 560035 5. SMT PADMA W/O CHANDRA REDDY AGED ABOUT 51 YEARS R/AT DODDA KANNAHALLI VILLAGE, SARJAPURA ROAD, KARMALLARAM POST, BANGALORE - 560035 6. SMT. PARVATHAMMA W/O L RAJAGOPALA D/O LATE K T NAGAPPA REDDY AGED ABOUT 51 YEARS R/AT NO 272/2 2ND B MAIN ROAD, KORAMANGALA 8TH BLOCK ADUGODI POST BANGALORE- 560030 7. SMT GOWRAMMA W/O LATE VEERAPPA REDDY D/O LATE K T NAGAPPA REDDY AGED ABOUT 74 YEARS R/OF KUVEMPU ROAD B CHANNASANDRA BANGALORE - 560043 8. SMT SHAMANTHA W/O K N SANANDA GANESH AGED ABOUT 57 YEARS R/AT DODDA KANNAHALLI VILLAGE, KARMALLARAM POST BANGALORE - 560035 PRESENTLY RESIDING AT NO 32/2, GOWRISHANKARA NILAYA, CHURCH GATE, SIDDAPURA ROAD, CHIKKA KANNAHALLI, KARMALARAM POST, BENGALURU - 560035 9. SMT. P SUJATHA W/O S G PRABHAKAR D/O M PAPAIAH AGED ABOUT 51 YEARS R/AT NO 242/22 2ND CROSS VENKATAPURA MAIN ROAD, KORAMANGALA EXTENSION, BANGALORE - 560034 10. S G PRABHAKAR S/O GUNDAPPA AGED ABOUT 58 YEARS R/AT NO 243/22, CHANDANA NIVASA, 2ND CROSS, VENKATAPURA MAIN ROAD, KORAMANGALA POST, BANGALORE - 560034 11. SRI THOMAS S/O JOSEPH AGED ABOUT 65 YEARS R/AT NO 100, KHB COLONY KORAMANGALA BENGALURU - 560095 12. ADARSH GROUP DEVELOPERS NO 10, ANAND BHAVAN 3RD FLOOR, MARKETING DIVISION, DR VITTAL MALLYA ROAD, BENGALURU - 560001 REPREESENTED BY SRI B M KARANESH 13. SMT RADHAMMA W/O LATE K SRINIVASA REDDY AGED ABOUT 71 YEARS 14. SRI JAGADEESH REDDY S/O LATE K SRINIVASA REDDY AGED ABOUT 51 YEARS 15. SRI SATISH REDDY S/O LATE K SRINIVASA REDDY AGED ABOUT 49 YEARS 16. SRI SURESH REDDY S/O LATE K SRINIVASA REDDY AGED ABOUT 47 YEARS R13 TO R16 ARE RESIDING AT NO 27, KASAVANAHALLI, KARMALARAM POST SARJAPURA ROAD, BENGALURU - 560034 17. K A SURESH REDDY S/O K A SRINIVASA REDDY AGED ABOUT 47 YEARS RESIDING AT KASAVANAHALLI, KARMALARAM POST SARJAPURA ROAD, BENGALURU - 560034 18. INDUSHEKARA REDDY S/O SRI SHANKARA REDDY AGED ABOUT 51 YEARS R/AT AGARA VILLAGE, SARJAPURA ROAD, AGARA POST, BENGALURU NOW AT NO 547/12, A BLOCK, 1ST CROSS, 15TH MAIN SAHAKARA NILAYA BENGALURU - 560092 19. R ANURADHA D/O MUNIYAPPA REDDY AGED ABOUT 49 YEARS R/AT AGARA VILLAGE, SARJAPURA ROAD, AGARA POST, BENGALURU - 560035 20. R GOPALA KRISHNA REDDY S/O RAMAIAH REDDY AGED ABOUT 59 YEARS R/AT AGARA VILLAGE, SARAJAPURA ROAD, AGARA POST BENGALURU - 560035 21. SMT C SHOBITHA D/O K CHOWDA REDY AGED ABOUT 48 YEARS R/AT AGARA VILLAGE SARJAPURA ROAD, AGARA OST BENGALURU - 560035 NOW AT KASAVANAHALLI VILLAGE VARTHUR HOBLI, BENGALURU - 560034 22. SMT RADHAMMA W/O K N SHIVASHANKARA AGED ABOUT 60 YEARS R/AT BEHIND ROYAL MARBLE, DODDAKANNAHALLI, KARMALARAMA POST, VARTHUR HOBLI, SARJAPURA MAIN ROAD BENGALURU EAST TALUK PRESENTLY RESIDING AT TIRUMALA TEMPLE ROAD DODDAKANNHALLI BENGALURU - 560035 23. SRI S SUNIL KUMAR KARWAR S/O L SHAMASUNDAR KARWAR AGED ABOUT 56 YEARS, R/AT FLAT NO. 124, 8TH MAIN OPP YESHWANTHAPURA POLICE STATION, MALLESHWARAM BENGALURU - 560055 24. M/S INDUS TECH PARK PVT LTD A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 HAVING ITS OFFICE AT NO. 2, SERIVCE ROAD, YESHWANTHPURA BENGALURU - 560022 REPRESENTED BY ITS MANAGING DIRECTOR MR VIVEK KUMAR HAVING ITS REGISTERED OFFICE AT NO 5-6, SUNDAR MANSION, RAGHAVENDRA ROAD, BENGLAURU - 560022 ... RESPONDENTS (BY SRI. RAMA MOHAN M, ADV. FOR C/R2 SRI. M. S. VARADARAJAN, ADV. FOR R3 NOTICE TO R1, R4 TO R24 IS D/W V/O DT.20.03.2019 ********* THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD:4.2.2019 ON IA NO.38 PASSED IN O.S.NO.3844/1995 ON THE FILE OF THE XXXVIII ADDITIONAL CITY CIVIL AND SESSION JUDGE, BENGALURU AT ANNEXURE- H AND THEREBY ALLOW THE APPLICATION FILED BY THE PETITIONERS UNDER ORDER XIV RULE 5[2] R/W SECTION 151 OF THE CPC AT ANNEXURE-F.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners who are plaintiffs before the trial Court filed the present writ petition against the order dated 04.02.2019 passed on I.A.38 in O.S.No.3844/1995 on the file of the 38th Additional City Civil Judge, Bengaluru, thereby partly allowing the application filed by the petitioners under Order 14 Rule 5(2) read with Section 151 of Code of Civil Procedure.
2. It is the case of the petitioners – plaintiffs that the suit came to be filed for partition and separate possession and consequential reliefs against the defendants contending that suit schedule properties are the joint family properties of plaintiffs and defendants and there was no partition. The defendants filed written statement contending at the first instance that the suit schedule properties were joint family properties, but after filing additional written statement they contended that earlier there was partition between defendants 1 to 3 and their father and the suit filed by the plaintiffs is not maintainable and sought for dismissal of the suit.
3. Based on the aforesaid pleadings, the trial Court at the inception framed issues as hereunder:
a. Whether the defendants prove that the suit is bad for non-joinder of necessary parties?
b. Whether the plaintiffs prove cause of action?
c. Whether the plaintiffs are entitled for the relief of partition and separate possession as prayed in the plaint?
d. What decree or order?
4. On the basis of the issues, parties were allowed to lead evidence. Accordingly, plaintiffs and defendants adduced and produced their evidence and after completion of evidence when the matter was posted for arguments, the 3rd defendant filed an application on 07.02.2017 under Order 14 Rule 5 read with Section 151 of CPC seeking to frame additional issues as hereunder:
a. Whether the defendants 4 to 7 prove that the suit schedule properties are ancestral properties:
b. Whether defendants 4 to 7 prove that they are in possession and enjoyment of the suit schedule property on the date of filing of the suit?
c. Whether the defendants 1 to 3 prove that the sale deed executed by them earlier to filing of the suit and after filing of the suit or their family and legal necessities?
d. Under Section 8 of the Hindu Succession Act the plaintiffs and defendants 4 to 7 are entitled for their legitimate share in the suit schedule properties?
5. The said application came to be rejected on the same day of filing of the application i.e., on 07.02.2017. However, on 03.01.2018, the learned Judge contrary to the order passed on 07.02.2017 framed following additional issues:
a. Whether the defendants 3 and 6 prove that there has been partition held in between late Sri. K. T. Nagappa Reddy with his 3 sons dated 10.08.1982?
b. Whether defendant No.3 proves that suit schedule properties are the self acquired properties of late Sri. K. T. Nagappa Reddy?
c. Whether the defendants 4, 5 and 7 are entitled to their respective shares in the suit schedule properties i.e., item Nos. 1 to 11?
d. Whether the defendant No.12 proves that suit filed by the plaintiffs is bad for mis- joinder of the parties?
e. Whether the 11th defendant proves that he is owner and the bonafide purchaser of a portion of land in Sy.No.33/2 situated at Chikkabellandur village?
f. Whether the 15th defendant proves that he is the owner and the bonafide purchaser of the land to an extent of 0.12 guntas in Sy.No.98 situated at Doddakannahalli from 2nd defendant under registered sale deed dated 27.01.1995, document No.7882/1994-
94?
g. Whether the 19th defendant proves that he is the owner and the bonafide purchaser of the land to an extent of 0.48½ guntas is Sy.No.98 situated at Doddakannahalli from the 2nd defendant under registered sale deed dated 18.06.2004 and 02.05.2008 respectively from defendant No.2?
6. Thereafter, the present plaintiffs filed an application on 08.01.2018 to strike out and delete additional issues 1, 2 and 4 to 7 raised by the trial Court suo motu on 03.01.2018 contending that against the order passed by the trial Court dated 10.07.2017 rejecting the plaint in O.S.No.3844/1995 the plaintiffs preferred appeal R.F.A.No.1400/2017 before this Court and this Court while allowing the appeal vide order dated 08.11.2017 directed the trial Court to dispose of the suit within three months. Thereafter, the learned counsel for both parties addressed their arguments before the trial Court. In the written statement filed by 3rd defendant on 27.02.1996, he had nowhere stated that the suit schedule properties are the self acquired properties nor there was any partition on 10.08.1982 as alleged. The 3rd defendant also examined as D.W.1 in the year 2015 and in the cross-examination in chief it was stated that except item No.9 all other items in the suit schedule properties are joint family properties and that even regarding item No.9 he has not produced any documentary evidence to show that he had sufficient funds to acquire the same, etc. The 3rd defendant filed objections to the application filed by plaintiffs.
7. The trial Court considering the application and objections, by the impugned order dated 04.02.2019 allowed the application filed by the plaintiff in part and deleted additional issue No.1. Hence, the present writ petition is filed.
8. I have heard the learned counsel for the parties to the lis.
9. Sri. C.M.Nagabhushana, learned counsel for the petitioners contended that the impugned order passed by the trial Court deleting only additional issue No.1 and retaining the other issues are erroneous and contrary to the material on record. He further contended that the 3rd defendant had already filed I.A.36 under Order 14 Rule 5 of CPC seeking to frame additional issues which came to be dismissed on 07.02.2017 and that the said order having attained finality, additional issues of the same character could not have been framed. He further contended that the trial Court by order dated 02.11.2018 has observed thus:
“At this stage the issues already framed only by the side of the plaintiff to prove. However, subsequent purchasers filed independent written statement. Hence, issues are to be framed on purchasers who filed individual written statement and the advocate filed power for defendant No.15 with no objection from previous counsel.”
10. Learned counsel for the petitioners further contended that having recorded the above observation, issues would have been framed on purchasers who filed individual written statement. Therefore, framing the issues calling upon the defendants 3 to 7 to prove issues 1 to 3 is not only contrary to the said observation but also contrary to the order passed by the trial Court on 07.02.2017 rejecting the application filed by the 3rd defendant for framing additional issues.
It is further contended that the trial Court failed to notice that defendants 11, 12, 15 and 19 who were purchasers have filed written statements way back in the years 2009 to 2011 and defendants have also led their evidence on the issues which were framed originally and none of the purchasers insisted for framing of any additional issues before adducing their evidence and as such now framing of such issues at the time of hearing the arguments on the main suit for the second time is not only contrary to the Order 14 Rule 5 of CPC but also opposed to well established principles of law of evidence. He further contended that the additional issues framed by the trial Court suo motu will give raise to the parties to lead additional evidence and as such an opportunity would enable them to fill up the lacuna in their evidence already on record. Admittedly, except deleting issue No.1 parties were not allowed to adduce any evidence on issues 2 to 7. Therefore, the learned counsel submits that the impugned order passed by the trial Court is contrary to the material on record and cannot be sustained. Therefore, sought to allow the writ petition.
11. Per contra, Sri. M. S. Varadarajan, learned counsel for respondent No.3 and Sri. Rama Mohan. M, learned counsel for respondent No.2 sought to justify the impugned order and contended that after completion of evidence by both sides when the matter was posted for arguments, the trial Court thought it fit to frame the additional issues and the trial Court has not allowed either of the parties to adduce any evidence on the additional issues framed. They further submit that the additional issues framed by the trial Court are in order to resolve the dispute between the parties and therefore, sought to dismiss the writ petition.
12. Having heard the learned counsel for the parties, it is not in dispute that the plaintiffs filed the suit for partition and separate possession in respect of suit schedule properties contending that they are members of joint family and they are entitled to partition as sought for. The same was opposed by the defendants contending that there was already partition between the members of the joint family and therefore, the suit was not maintainable. It is not in dispute that based on the pleadings, the trial Court at the first instance framed 4 issues and permitted the parties to adduce evidence both orally and documentary. It is also not in dispute that when the matter was posted for arguments, the 3rd defendant filed an application to frame additional issues under Order 14 Rule 5 of CPC as stated hereinabove. The trial Court dismissed the said application by order dated 07.02.2017. The said order passed by the trial Court has reached finality. The parties adduced evidence based on the pleadings and issues framed by the trial Court. The trial Court while framing additional issues on 03.01.2018 has not assigned any reasons for framing such additional issues.
13. It is also not in dispute that the application filed by the present plaintiffs to delete the additional issues framed by the learned judge suo motu on 03.01.2018 came to be allowed in part by the impugned order deleting issue No.1 and retaining other issues. The trial Court considering the application and objections has held that burden of proving all additional issues lies on the defendants as per their written statement filed respectively and the plaintiffs have to establish their case as per the contentions took in the pleadings of the plaint as suit schedule properties are joint family properties and during the period when the issues were framed on 27.10.1999 the additional defendants were not impleaded and therefore, the additional issues came to be framed. The trial Court failed to notice that after the additional defendants were impleaded, the 3rd defendant filed an application for framing additional issues, which came to be rejected. It is also not in dispute that after framing of the additional issues by the learned Judge suo motu on 03.01.2018, as submitted by learned counsel for the parties, the parties were not allowed to adduce any evidence on the proposed additional issues framed by the trial Court.
14. Framing of additional issues without there being proper evidence and pleading would not arise. Therefore, as already stated above, the trial Court permitted all the parties to adduce and produce evidence based on the original issues framed in the suit. If that is so, there was no necessity for the trial Court to frame additional issues suo moto without any reasons and proceed with the judgment without allowing the parties to adduce their evidence on the additional issues framed.
15. For the reasons stated above, the writ petition is disposed of. The impugned order passed by the trial Court dated 04.02.2019 on I.A.No.38 in O.S.No.3844/1995 retaining issues 2 to 7 is unnecessary. The trial Court is directed to proceed with the suit based on the original issues framed at the inception and the evidence adduced thereon both orally and documentary. It is further made clear that during the course of judgment if the trial Court based on the oral and documentary evidence feels necessary to frame additional issues, it shall proceed with the judgment and decree in accordance with law based on the oral and documentary evidence already adduced and produced by both parties.
Ordered accordingly.
Sd/- JUDGE VP