IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY, 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.30145/2017 (GM-CPC) BETWEEN:
1. Sri S.Paramashivaiah S/o late Somasundaraiah Aged about 45 years 2. Sri S.Basavarajaiah S/o late Somasundaraiah Aged about 40 years 3. Sri Rajesh S/o late Somasundaraiah Aged about 38 years 4. Sri S.C.Shivakumaraiah S/o late Channabasappa Aged about 60 years All are residents of Seethakalu Village, Urdugera Hobli, Tumkur Taluk & District, Pin: 572 140.
...Petitioners (By Sri N.K.Siddeswara, Advocate for Sri Amruthesh N.P., Advocate) AND:
1. Sri S.C. Chandrashekaraiah S/o Channabasappa Aged about 80 years.
2. Sri H.B.Shivakumar S/o late Chikkabasappa (Basappa) Aged about 60 years Both are residing at Seethakalu Village, Urdugera Hobli, Tumkur Taluk & District, Pin: 572 140.
3. Smt. Parvathamma W/o late Chikkabasappa (Basappa) Since dead by her LR 3(a). Basavambike D/o late Chikkabasappa (Basappa) Aged about 65 years R/o Hanabe (Post) Doddaballapura Taluk Bangalore Rural District Pin: 561 203.
... Respondents This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated 15.6.2017 passed by the learned Principal Senior Civil Judge and CJM, Tumakuru in O.S.No.87/2007 vide Annexure-K in dismissing the application filed by the petitioners for framing of additional issues by issuing a Writ of Certiorari.
This Writ Petition coming on for preliminary hearing this day, the Court made the following:
O R D E R The defendants 1 to 4 filed the present writ petition against the order dated 15.6.2017 made in O.S.No.87/2007 dismissing the application filed by the second defendant under Order 14 Rule 5 of CPC with cost of Rs.500/-
2. The plaintiffs filed a suit for partition and separate possession in respect of the suit schedule properties more-fully described in the schedule contending that the plaintiffs and defendants are the members of the joint family and suit schedule properties are ancestral joint family properties of plaintiffs and defendants and there was no partition. In spite of the demand, the defendants have not effected partition in favour of the plaintiffs. Therefore, suit filed for relief sought for.
3. The defendants filed written statement denying the plaint averments and contended that one Anubasappa had two sons by name Gubbisettappa, and Channabasappa. Shekarappa was not at all a member of the family of Anubasappa. As alleged in the complaint the first son of Gubbisettappa died issueless. Second son Channabasappa died leaving behind four sons namely S.C.Somasundaraiah, S.C.Chandrashekaraiah, S.C.Basavarajaiah and S.C.Shivakumaraiah. S.C.Basavrajaiah and S.C.Chandrashekaraiah have executed a registered release deed in respect of their shares on 6.10.1965 and 26.10.1966 in favour of S.C.Somasundariah and S.C.Shivakumariah. It was further contended that, Channabasappa’s 1st and 4th son i.e. S.C.Somasundaraiah and S.C.Shivakumaraiah have divided among themselves the properties on 1.3.1980 through partition deed. Hence, no properties are left to be divided.
4. It is further contended that the plaintiffs had convened a Panchayath on 28.2.2007 to effect partition of suit schedule properties, but it was failed. The other contention is that, Anubasappa had only two sons Gubbasettappa and Channabasappa. Shekarappa was not at all the members of the family of Anubasappa and he is not the son of Anubasappa. The plaintiffs have not come together with clean hands. Further contended that, the second plaintiff H.B.Shivakumar is not a member of the family, he is utter stranger to the family and is not entitled to any share in the suit schedule properties along with other plaintiffs. Therefore, sought for dismissal of the suit.
5. Based on the pleadings, the trial Court framed the following issues on 11.8.2016:
1. Whether the plaintiffs prove that the suit schedule properties are the ancestral and joint family properties?
2. Whether the plaintiffs prove that they are entitled for Partition and Separate Possession of their 1/6 share?
3. Whether the plaintiffs prove that the defendants have denied to partition the suit schedule properties?
4. Whether the defendants No.1 to 4 prove that S.C.Basavarajaiah and S.C.Chandrashekaraiah have executed release deed in respect of their shares on 06-10-1965 and on 20-10-1966 in favour of S.C.Somasundaraiah and C.Shivakumaraiah?
5. Whether the defendants No.1 to 4 prove that the suit filed by the plaintiffs is not maintainable?
6. What order or decree the parties are entitled for?
6. When the matter was posted for cross- examination of PW1, at that stage, second defendant filed an application under Order 14 Rule 5 of Code of Civil Procedure to frame additional issues as under:
1) Whether the plaintiffs proves that one Anubasappa had 3 sons namely Gubbasettappa, Shekaranna, Chennabasappa and they were in joint possession of the suit schedule properties after the demise of Anubasappa as they alleged in para 2 of the plaint?
2) Whether the plaintiffs further proves that the alleged 2nd son of Anubasappa viz Shekaranna had left behind lonely son viz Chikkabasappa @ Basappa and he also died leaving behind the 2nd plaintiff as alleged in para 2 of the plaint.
Reiterated the averments made in the written statement that the Shekaranna left behind him his only son Chikkabasappa @ Basappa who in turn left behind only son H.B.Shivakumar, second plaintiff are false and incorrect. He further contended that in view of the specific defense in the written statement the proposed additional issues are necessary and proper to adjudicate the matter between the parties. The said application was resisted by the other defendants contending that the application filed is only to drag on the proceedings and the issues already framed based on the pleadings are sufficient to resolve the dispute between the parties. Therefore, sought for dismissal of the application.
7. The trial Court considering the application and objections, by the impugned order dated 15.6.2017 has dismissed the said application with cost. Hence, the present writ petition is filed.
8. I have heard the learned counsel for the petitioners.
9. Sri N.K.Siddeswara, learned counsel representing Sri N.P.Amruthesh, learned counsel for the petitioners vehemently contended that the impugned order passed by the trial Court dismissing the application under Order 14 Rule 5 of CPC, framing of additional issues is erroneous, contrary to material on record. He further contended that, when the defendants have taken a specific contention in the written statement that second plaintiff is utter stranger to the family, the trial Court ought to have answer the issue in that regard. The same has not been done. Therefore, the trial Court ought to have allowed the application filed by the second defendant for framing of additional issues.
10. He further contended that, the trial Court has not framed proper issues based on the averments made in the plaint and the averments in the written statement. Therefore, he sought to quash the impugned order by allowing the present writ petition.
11. Having heard the learned counsel for the petitioners, it is undisputed fact that the plaintiffs filed suit for partition and separate possession contending that they are members of the joint family consisting of plaintiffs and defendants and suit schedule properties are joint family properties of plaintiffs and defendants. The defendants filed written statement denied the averments and taken a specific contention that second plaintiff is not a member of the joint family, he is utter stranger to the family. Based on the pleadings, the trial Court framed the issues as already stated supra.
12. The first issue was; whether the plaintiffs prove that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants. While deciding the rights of the parties, the trial Court has to record a finding with the relationship between the plaintiffs and the defendants. When the defendants have taken a specific contention that the second plaintiff is not a member of the joint family, it is for the plaintiffs to prove that they are the members of the joint family by adducing cogent, oral and documentary evidence on record and the plaintiffs also have to prove that they are entitled to 1/6th share in the suit schedule properties and further they have to prove that the demand made by the plaintiffs for partition is denied by the defendants. The trial Court considering the entire material on record recorded a finding that the suit filed on 11.8.2006 for partition and separate possession answering issues which already framed with regard to prove that the joint family properties are the ancestral properties of the plaintiffs and defendants, the burden is on the plaintiffs to prove the relationship and the flow of title to establish their share and the nature of property. It is always open for the defendants to cross-examine the plaintiffs with regard to relationship of second plaintiff, since they have denied in written statement. The trial Court has proceed to dismiss the application mainly on the ground that the application filed is only to solve the proceedings. The material on record clearly indicates that according to the plaintiffs, they are the members of the joint family. The suit schedule properties are joint family properties of plaintiffs and defendants. According to the defendants, they have denied the plaint averments and specifically taken a contention that the second plaintiff is not a member of the joint family. If that is so, it is for the plaintiffs including second plaintiff to establish relationship of the defendants and suit schedule properties are the joint family properties. The trial Court considering the entire material on record has recorded a finding that in order to prove the first issue framed, the plaintiffs are bound to prove the relationship and the flow of title with them to establish their share and nature of properties.
13. In view of the same, the impugned order passed by the trial Court is just and proper. No interference is called for in the present writ petition in exercise of power under Article 227 of the Constitution of India.
Accordingly, this writ petition is dismissed.
Sd/- JUDGE AP