Dismissed

Smt. B.V. Anasuya @ v. Sri Shanmukappa

Karnataka HC1 Feb 2024WP/35484/2016

Case brief

AI extract

What is this about?

Plaintiffs in a suit for declaration, possession and mandatory injunction challenged the trial court's framing of an additional issue casting burden on them to prove title. The High Court held that where defendants deny plaintiffs' ownership in the written statement, burden lies on plaintiffs, and dismissed the writ petition, confirming the impugned order.

What the court decided

AI extract

Smt. B.V. Anasuya @ Vs Sri Shanmukappa — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:4386 WP No. 35484 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 35484 OF 2016 (GM-CPC)

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BETWEEN:

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SMT. B.V. ANASUYA @ ANASUYAMMA B.V AGED ABOUT 72 YEARS, HOUSE HOLD, D.NO.109/90-91 "SRI LAXMI" T.C. LAYOUT BEHIND LIC OFFICE OPP. MAHAVEERA BHAVAN DAVANAGERE.

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Digitally signed by PAVITHRA N Location: high court of karnataka

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SRI. B. VITTALACHARYA S/O KRISHNACHARYA AGED ABOUT 75 YEARS, BUSINESSMAN, D.NO.109/90-91 "SRI LAXMI" T.C. LAYOUT BEHIND LIC OFFICE OPP MAHAVEERA BHAVAN DAVANAGERE-577001.

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(BY SRI. SANTOSH R NELKUDRI, ADVOCATE)

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…PETITIONERS

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AND:

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SRI SHANMUKAPPA S/O LAXMANAPPA AGED ABOUT 55 YEARS BROKER, SIDDESHWARA PLOT RANEBENNUR TOWN HAVERI DISTRICT.

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SRI. D. SHIVAJI RAO SALANKI S/O DURGOJI RAO AGED ABOUT 72 YEARS,

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2 - NC: 2024:KHC:4386 WP No. 35484 of 2016

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BUSINESSMAN, D.NO.575, KAIPET DAVANAGERE-577001.

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SMT. BHAGYAMMA W/O LATE B.R. UDAYKUMAR AGED BAOUT 42 YEARS HOUSE HOLD, D.NO.362/1 MYASABEDARA KERINEAR VASANTA TALKIES DAVANAGERE-577001.

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KUM. B.V. LAXMI D/O LATE B.R. UDAY KUMAR AGED ABOUT 20 YEARS, D.NO.362/1 MYASABEDARA KERINEAR VASANTA TALKIES DAVANAGERE-577001.

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SRI. T.V. MANJUNATH S/O TELGI VEERAPPA AGED ABOUT 50 YEARS, BUSINESSMAN, D.NO.1166, 1ST CROSS, KUMBARA ONI, DAVANGERE-577001.

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SRI. B. CHANNAPPA S/O SRI. BEEMAPPA AGED ABOUT 65 YEARS AGRICULTURIST, ANAJI VILLAGE DAVANAGERE TALUK & DISTRICT-577001.

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SMT. SHIVARUDRAMMA D/O B. CHANNAPPA, AGED ABOUT 45 YEARS, HOUSE HOLD, ANAJI VILLAGE, DAVANGERE TALUK AND DISTRICT-577001.

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SMT. SAVITRA D/O SRI. B. CHANNAPPA, AGED ABOUT 42 YEARS, HOUSE HOLD

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NC: 2024:KHC:4386 WP No. 35484 of 2016

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ANAJI VILLAGE, DAVANGERE TALUK AND DISTRICT-577001.

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SRI. B.R. MANJUNATH S/O BANNIKATTE RAMAPPA, AGED ABOUT 40 YEARS, BUSINESSMAN. D.NO.362/1, MYASABADARA KERI, DAVANGERE-577001.

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SRI.K.RAMESH S/O SURVE KRISHNOJI RAO, SINCE DEAD BY LRS,

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SMT. RATNA BAI, W/O SURVEY KRISHNOJI RAO AGED ABOUT 55 YEARS, CORPORATOR, 3RD CROSS, 4TH MAIN, KHANADA AREA, VINOBA NAGAR, DAVANAGERE-577001.

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SMT. BHAGYAMMA W/O K. RAMESH AGED ABOUT 33 YEARS, HOUSEHOLD, 3RD CROSS, 4TH MAIN, KHANADA AREA, VINOBA NAGAR, DAVANAGERE-577001.

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KUM. VEDAVATHI D/O K. RAMESH AGED ABOUT 13 YEARS, MINOR REPRESENTED BY HER MOTHER GUARDIAN RESPONDENT NO.11.

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KUM. ANJALI D/O K. RAMESH AGED ABOUT 11 YEARS, MINOR BY GUARDIAN NATURAL MOTHER RESPONDENT NO.11.

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KUM. GAGANA D/O K. RAMESH AGED ABOUT 7 YEARS,

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4 - NC: 2024:KHC:4386 WP No. 35484 of 2016

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MINOR BY GUARDIAN NATURAL MOTHER RESPONDENT NO.11

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RESPONDENTS NO.12 TO 14 ARE MINORS REPRESENTED BY THEIR MOTHER NATURAL GUARDIAN SMT. BHAGYAMMA W/O LATE K. RAMESH, AGED ABOUT 33 YEARS, RESIDENT OF 3RD CROSS, 4TH MAIN, KHANADA AREA, VINOBA NAGAR, DAVANAGERE-577001.

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…RESPONDENTS

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(BY SRI. K.R. RAJENDRAN AND SRI S.V. RAJAN, ADVOCATES FOR R3 & R4; SRI MAHESH R. UPPIN, ADVOCATE FOR R6; VIDE ORDER DATED 26.08.2016, HAND SUMMONS SERVED ON R2, R4 TO R8, R10 & R11 AND ARE UNREPRESENTED; VIDE ORDER DATED 14.06.2023, NOTICE TO R1 IS DISPENSED WITH; R12 TO R14 ARE MINORS AND REPRESENTED BY R11; VIDE ORDER DATED 16.12.2022, PETITION AS AGAINST R9 STANDS DISMISSED AS ABATED; VIDE ORDER DATED 23.01.2024, PETITION AS AGAINST, R8 IS DISMISSED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 17.06.2016 PASSED IN O.S.NO.28 OF 2007 IN I.A.NO.XI ON THE FILE OF 1ST ADDITIONAL SENIOR CIVIL JUDGE DAVANAGERE AS PER ANNEXURE-J AND ETC.,

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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5 - NC: 2024:KHC:4386 WP No. 35484 of 2016

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ORDER

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Plaintiffs in OS.No.28/2007 on the file of the learned First Additional Senior Civil Judge at Davanagere are impugning the order dated 17.06.2016 passing the order regarding framing of additional issue.

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Heard Sri. Santosh.R.Nelkundri, learned counsel for the petitioners and Sri. K.R.Rajendran and Sri.S.V.Rajan, learned counsel for respondent Nos.3 and 4,

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Sri. Mahesh.R.Uppin, learned counsel for respondent No.6.

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Learned counsel for the petitioners submitted that

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the petitioners as plaintiffs filed the suit for declaration of his title, for mandatory injunction and also for possession. Defendant Nos.5 to 8 and 10 are the contesting defendants. The other defendants are only formal parties. Initially, the Court has framed issues casting the burden on the plaintiffs regarding proof of their title, based on various documents. However, plaintiffs filed an application to delete the said issue as the contesting defendants have admitted the ownership of the plaintiff while filing the written statement. But when the matter was heard, the trial Court again framed the issue

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NC: 2024:KHC:4386 WP No. 35484 of 2016

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casting burden on the plaintiffs to prove the title over the suit property as on the date of the suit. Hence, the petitioners are before this Court.

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Learned counsel submitted that when the title of the plaintiffs are already admitted by the defendants in the written statement and when such issue framed was already deleted at the request of the plaintiffs, the trial Court was not justified in framing the same issue once again casting the burden on the plaintiffs. Accordingly, they prays for allowing the petition and setting aside the impugned order.

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Per contra , learned counsel for respondent No.6 opposing the petition submitted that the petition against respondent Nos.8 and 9 is already dismissed for default. No steps were taken to restore the petition against respondent Nos.8 and 9. When admittedly defendant No.8 is the contesting respondent, the petition is liable to be dismissed as a whole.

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Learned counsel also submitted that in the written

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statement, the defendants have taken a specific contention that the plaintiffs are not the owners of the property and they are not having the title to the property as on the date of the suit.

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NC: 2024:KHC:4386 WP No. 35484 of 2016

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Under such circumstances, the trial Court has rightly framed the additional issue casting the burden on the plaintiffs who are seeking declaration of their title. There is no illegality in the order passed by the trial Court. Hence, he prays for dismissal of the petition.

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Admittedly, the petitioners being the plaintiffs filed the suit OS.No.28/2007 seeking declaration, mandatory injunction and for possession. Initially, the Court has framed the issue casting the burden on the plaintiffs to prove their title over the property. However, the said issue was came to be deleted on the application filed by the plaintiffs. When the matter was heard by the trial Court after recording the evidence of both the parties, the Court felt necessary that there must be a issue casting burden on the plaintiffs to prove their title as on the date of the suit as the same was disputed by the contesting defendants. It is therefore, the issue was came to be framed.

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When the plaintiffs are seeking declaration of their

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title on the basis of specific averments made in the plaint and when the same is denied by the defendants in the written

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8 - NC: 2024:KHC:4386 WP No. 35484 of 2016

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statement, the burden should be on the plaintiffs to prove that they are the owners of the property in question. Unless the plaintiffs prove their ownership over the property as contended, they may not be entitled for the declaration as sought. Under such circumstances, I do not find any merits in the contention taken by the plaintiffs.

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Moreover, against defendant No.8, who is admittedly, contesting defendant, petition is already dismissed vide order dated 23.01.2024 and the same was not restored on file. Under such circumstances, the petition is liable to be dismissed. Accordingly, I proceed to pass the following:

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ORDER

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i. Writ petition is dismissed .

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ii. The impugned order dated 17.06.2016 in OS.No.28/2007 on the file of the learned First Additional Senior Civil Judge at Davanagere passing the order regarding framing of additional issue is confirmed.

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BH: List No.: 1 Sl No.: 8

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Sd/JUDGE

Smt. B.V. Anasuya @ v. Sri Shanmukappa

Case brief

What is this about?

What the court decided

Smt. B.V. Anasuya @ v. Sri Shanmukappa

Case brief

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