IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS. JUSTICE S. SUJATHA WRIT PETITION Nos.57288-57289/2018 (GM - CPC) BETWEEN:
SMT. SUSHEELA W/O. LATE OBOJI RAO, HINDU, MAJOR, R/AT D.NO.2-24-12 ADARSHA NAGAR, JELLIGUDDE, BAJAL, MANGALORE – 575 001. ... PETITIONER (BY SRI VIKAS K.K., ADVOCATE FOR SRI SACHIN B.S., ADVOCATE) AND:
SMT. YOGINI DECEASED BY HER LRs.
1(a) SMT. PREMALATHA S. HEGDE W/O. SATHISHCHANDRA HEGDE AGEDA BOUT 62 YEARS, R/AT ALANKAR HOUSE, AJJARAKADU, UDUPI – 576 101.
1(b) SMT SUREKHA D. SHETTY W/O. DIVAKAR SHETTY, AGED ABOUT 60 YEARS, R/AT NO.101, BLUE DIAMOND SHIVABAG, KADRI, MANGALORE – 575 001.
1(c) SRI PRABHAKAR ADAPPA W/O. RAMDAS BHANDARY, AGED ABOUT 56 YEARS, R/AT “PAVITHRA”, NEAR BALIGA STORE, BEJAL, MANGALORE – 575 001.
1(d) SMT. MALLIKA R. BHANDARY W/O. RAMDAS BHANDARY, AGED ABOUT 56 YEARS, R/AT KODAKKAL HOUSE, ALAPE VILLAGE, PADIL POST, MANGALORE – 575 001.
1(e) SMT. SHYMALATHA SHETTY W/O. SATHISH SHETTY, AGED ABOUT 54 YEARS, R/AT MAIREGUTHU HOUSE, BAJAI PAKALADKA , MANGALORE – 575 001. ... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD:29.11.2018 PASSED ON IA NO.7 AND 8 FILED BY THE PETITIONER IN O..SNO.110/2009 ON THE FILE 1ST ADDITIONAL CIVIL JUDGE AND JMFC MANGALORE, THEREBY DISMISSING IA NO.7 AND 8. COPY OF THE ENTIRE ORDER SHEET IN O.S.110/2009 IS PRODUCED HEREWITH AND MARKED AS ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has challenged the order dated 29/11/2018, passed on I.A.Nos.7 and 8 in O.S.No.110/2009 on the file of I Additional Civil Judge and JMFC, Mangalore (“trial Court” for short).
2. Learned counsel for the petitioner fairly submitted that I.A.No.7 has been allowed in favour of the petitioner and accordingly, he is not pressing the writ petition insofar as I.A.No.7 is concerned.
3. As aforesaid, writ petition is now restricted to the orders passed on I.A.No.8 by the trial Court. Issue No.4 framed by the trial Court reads thus:
“4. Whether the defendant proves that she is the absolute owner of schedule premise by way of adverse possession?”
4. The relevant portion of the averments made in the written statement filed by the defendant/petitioner is quoted hereunder for ready reference:
“Even till today the defendant continued to be in possession and enjoyment of the said house with appurtenant land measuring 3 cents asserting absolute right in herself openly, peacefully, notoriously, uninterruptedly, continuously and to the knowledge of the plaintiff.”
5. The prayer sought by the petitioner in I.A.No.8 is to delete issue No.4. It is not in dispute that considering the pleadings of the parties, issues were framed. Particularly, in view of the specific plea taken by the petitioner in the written statement that the defendant is in continuous possession and enjoyment of the house with appurtenant land measuring 3 cents (suit property) asserting absolute right in herself openly, peacefully, notoriously, uninterruptedly, continuously and to the knowledge of the plaintiff, which is nothing but the plea of adverse possession. The issue regarding adverse possession to be proved by the defendant has been framed. Hence, the prayer of the petitioner to delete the said issue has rightly been rejected by the trial Court. No error found in the order impugned.
6. Writ petitions stand dismissed.
Sd/- JUDGE S*