Smt Rangamma Vs Smt Ningamma

(BY SRI. R.S. HEGDE, ADV., FOR R1 & R10 R1 TO R3, R5 TO R8 ARE SERVED AND UNREPRESENTED V/O/DTD:31.05.2023, NOTICE TO R11 H/S V/O/DTD:27.06.2022 WP DISMISSED AS ABATED AGAINST R4)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS ISSUE WRIT OF CERTIORARI QUASH THE IMPUGNED ORDER VIDE ANN-G DTD. 13.03.2020 AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER ORDER 14 RULE 5 READ WITH SECTION 151 OF CPC VIDE I.A. NO.22, IN O.S. NO.07/2012, PENDING ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SIRA, TUMKUR DISTRICT & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed challenging the order dated 13.03.2020 passed on IA.No.22 in OS.No.7/2012 by the Senior Civil Judge and JMFC, Sira, Tumkur District (for short ‘the trial Court’).

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NC: 2026:KHC:19435 W.P. No.13912/2020

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HC-KAR

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Heard Sri.Bhargav G., learned counsel for the

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petitioners and Sri.R.S.Hegde, learned counsel for respondent Nos.9 and 10 and meticulously perused the material available on record.

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The respondent Nos.1 and 2 filed OS.No.7/2012 seeking partition and separate possession of a one-fourth (1/4^th ) share in all the suit schedule properties. In the said suit, the present petitioners, who are the legal representatives (LRs) of defendant No.2 filed a written statement and also raised a counterclaim. The material on record indicates that the parties have adduced the evidence and the matter was posted for arguments. At that stage, the petitioners/LRs of defendant No.2 filed an application under Order XIV Rule 5 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’)seeking the framing of the following additional issue:

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“Whether the LRs of defendant No.2(a) to (c) proves that, the sons of Late Chikkadasappa have effected the unregistered partition deeds, with respect of the suit schedule properties in

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5 - NC: 2026:KHC:19435 W.P. No.13912/2020

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HC-KAR

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different dates 20.10.1975 and 12.05.1982 as contended in para 2 of written statement of LRs of defendant No.2(a) to (c)?”

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The trial Court, under the impugned order, rejected the said application and posted the matter for filing of the written arguments. The aforesaid additional issue sought to be framed was whether the LRs of defendant No.2 prove that sons of late Chikkadasappa had effected unregistered partition deeds in respect of the suit schedule properties on 20.10.1975 and 12.05.1982. It is to be noticed that in the written statement, the LRs of defendant No.2 have categorically asserted that Palu Vibhaga Patras dated 20.10.1975 and 12.05.1982 were not fully completed. They have specifically denied that there was a partition among the family. In such circumstances, now they cannot contend that there must be an additional issue to prove the very fact they had earlier denied. It is also noticed that the LRs of defendant No.2/petitioners herein have also raised a counterclaim in the said suit, which itself is one for partition. Ultimately,

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6 - NC: 2026:KHC:19435 W.P. No.13912/2020

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HC-KAR

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burden lies on the parties to prove that the suit schedule properties are joint family properties and they are entitled to the respective share. The trial Court has already framed the issues, recorded evidence and posted the matter for final arguments.

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In my considered view, the filing of such application at a belated stage is an abuse of process of law and there cannot be an additional issue as sought by the LRs of defendant No.2 in view of the specific averments in the written statement and in the counter claim. I do not find any error in the impugned order calling for interference. Accordingly, the writ petition is devoid of merit and the same is rejected .

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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ABK List No.: 1 Sl No.: 12

Smt Rangamma v. Smt Ningamma

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Smt Rangamma v. Smt Ningamma

Case brief

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