Karnataka High Court
Vinay vs Michael on 7 December, 2022
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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WP No. 45778 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 45778 OF 2017 (GM-CPC)
BETWEEN:
1. VINAY
44 YEARS.
2. VIVEK
42 YEARS.
3. VIKAS
38 YEARS.
4. VIKRAM
Digitally 37 YEARS.
signed by B A
KRISHNA
KUMAR
PETITIONERS ARE CHILDREN OF
Location:
High Court of LATE VELERIAN PEREIRA AND
Karnataka
R/O MAIN ROAD, YADTHARE
VILLAGE, P.O BYNDOOR - 576 201
UDUPI DISTRICT.
...PETITIONERS
(BY SRI VYASA RAO K.S., ADV.)
AND:
1. MICHAEL
67 YEARS
S/O LATE BONIFACE PERIERA
R/O LOBO PRABHU COURT
FLAT NO.305, LIGHT HOUSE HILL
HAMPANAKATTE
MANGALURU - 575 001.
2. REV.FR.LOUIS PERIERA
80 YEARS
VEER ASHOK CO-OP HOUSING
SOCIETY, BG-3-119, LULLA NAGAR
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WP No. 45778 of 2017
PUNE - 411 040
MAHARASTRA STATE.
3. ALPHONSE PEREIRA
73 YEARS
SURYA BETTU, HOUSE NO.6/122
POST KALLIANPURA - 576 114
UDUPI DISTRICT.
4. WALTER PEREIRA
68 YEARS
NO.103, CANARA PARADISE
6TH CROSS, 1ST MAIN
MISSION COMPOUND
UDUPI - 575 101.
5. BESSY
69 YEARS.
6. LIONAL
67 YEARS.
7. CYNTHIA MIRANDA
65 YEARS.
8. MILLAR
62 YEARS.
9. ROMAL
55 YEARS.
RESPONDENTS 5 TO 9 ARE
CHILDREN OF PRECILLA AMAN
R/O C/O BRIDES BEAUTY PARLOUR
VYAVAHAR COMPLEX
NEAR CITY BUS STAND
UDUPI - 576 101.
10. JULIANA PEREIRA
48 YEARS.
11. SANTHOSH
45 YEARS.
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WP No. 45778 of 2017
12. SATHISH
43 YEARS.
RESPONDENTS 10 TO 12 ARE
CHILDREN OF LATE WILLIAM PEREIRA
AND R/O SONA APARTMENT
FLAT NO.2-118, LULLA NAGAR
PUNE - 411 040.
13. NAVEEN RAJESH
40 YEARS
S/O BENEDICT DAVID
'STANLY PARADISE'
A 401, BEHIND SHIVAR GARDEN
SUP SCHOOL ROAD, MAIN ROAD(E)
THANE - 401 107.
14. VIJAY
48 YEARS.
15. VISHWAS
46 YEARS.
RESPONDENTS 14 & 15 ARE
CHILDREN OF LATE VELERIAN PEREIRA
AND R/O MAIN ROAD
YADTHARE VILLAGE
P.O. BYNDOOR - 576 201
UDUPI DISTRICT.
...RESPONDENTS
(BY SRI NARAYAN MAYYUR., ADV., FOR
SRI S.R. HEGDE HUDDLAMANE, ADV., FRO R-1;
V/O DATED 27.04.2017 NOTICE TO R-2 TO R-15 ARE D/W)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER ANNEX-A DTD.4.8.2017 PASSED BY THE III ADDL. CIVIL
JUDGE AND JMFC, UDUPI ON I.A.NO.7 IN O.S.NO.199/2014 AND
ALLOW I.A.NO.7 FILED BY THE PETITIONERS AS PRAYED FOR.
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WP No. 45778 of 2017
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition under Article 227 of the Constitution of India is filed assailing the order dated 04.08.2017 passed by the III Addl. Civil Judge & JMFC, Udupi, on IA no.7 in O.S.No.199/2014.
2. Brief facts of the case as revealed from the records which would be necessary for the purpose of disposal of this petition are, respondent no.1 herein had filed O.S.No.199/2014 before the Trial Court seeking the relief of partition, cancellation of settlement deed dated 25.07.2006 and for permanent injunction. In the said suit, defendant nos.15 to 18 who are the beneficiaries of the settlement deed dated 25.07.2006 had entered appearance. Defendant no.15 had filed a detailed written statement, which was adopted by defendant nos.16 to 18. In the written statement, it was specifically contended that the suit schedule property was the absolute property of Rev. Fr. Stanly R. Periera who had executed the registered settlement deed dated 25.07.2006 and a contention was also raised that the suit was barred by limitation. On the -5- WP No. 45778 of 2017 basis of the rival pleadings, the Trial Court had framed as many as six issues on 27.07.2016, which reads as under:
1. Whether plaintiff prove that he is the joint owner of the plaint schedule property?
2. Whether the plaintiff proves that the settlement deed dated 25.07.2006 is liable to be cancelled?
3. Whether the plaintiff is entitled for the relief of partition?
4. Whether the defendant proves that he is the absolute owner by way of settlement deed?
5. Whether plaintiff has valued the suit properly and court fees paid is sufficient?
6. What decree or order?
3. Defendant nos.15 to 18 had thereafter filed an application under Order XIV Rule 5(1) and Section 151 of CPC with a prayer to frame additional issues, which reads as under:
a) Whether the plaintiff proves that he has developed the suit property by affecting vast and valuable improvements contended in the suit?-6- WP No. 45778 of 2017
b) Whether defendants 15 to 18 prove that suit property is the absolute property of Rev. Fr.
Stanley R. Periera?
c) Whether the suit is barred by limitation?
d) Whether the plaintiff is entitled for
permanent injunction?
e) Whether defendants 15 to 18 prove that
the regd. settlement deed dated 26.07.2006
executed by Rev. Fr. Stanley R. Pereira in favour of Vinay Pereira is legal and valid document?
4. The said application was opposed by the plaintiff by filing objections. The Trial Court vide the order impugned has partly allowed the said application and being aggrieved by the same, defendant nos.15 to 18 are before this Court.
5. Learned Counsel for the petitioners submits that the Trial Court has only allowed the application in so far as it relates to the proposed additional issue no.(e) is concerned, and the application in so far as it pertains to proposed additional issue nos.(a) to (d) has been rejected. He submits that the proposed additional issue nos.(b) to (d) are relevant and the same arises for consideration having regard to the rival -7- WP No. 45778 of 2017 pleadings, and therefore, the Trial Court was not justified in rejecting the application in so far as it relates to the proposed additional nos.(b) to (d). He fairly submits that the proposed additional issue no.(a) will not arise for consideration in the suit.
6. Per contra, learned Counsel appearing for respondent no.1 has argued in support of the order impugned and submits that the issues which have been already framed by the Trial Court covers the entire dispute between the parties and the additional issues which are now sought to be framed are not relevant, and accordingly, he prays for dismissed of the petition.
7. I have carefully considered the arguments addressed on both sides and also perused the material available on record.
8. The plaintiff has sought for the relief of partition, cancellation of settlement deed dated 25.07.2006 and for permanent injunction in respect of the suit schedule property. In the written statement filed by defendant no.15, a specific plea has been taken that Rev. Fr. Stanly R. Periera who has -8- WP No. 45778 of 2017 executed the settlement deed in favour of defendant no.15 is the absolute owner of the suit schedule property. It is further contended in the written statement that the suit is barred by limitation. The Trial Court while framing the issues has not taken into consideration that the plaintiff has also sought the prayer for permanent injunction. Therefore, in my considered view, the proposed additional issue nos.(b) to (d) would arise for consideration in the suit having regard to the rival pleadings and the prayer made in the suit. The Trial Court was, therefore, not justified in rejecting the application in so far as it relates to the proposed additional issue nos.(b) to (d). Under the circumstances, the order impugned in so far as it relates to rejection of the application in respect of the proposed additional issue nos.(b) to (d) is unsustainable. Accordingly, the following order:
9. The writ petition is partly allowed. The order dated 04.08.2017 passed by the III Addl. Civil Judge & JMFC, Udupi, on IA no.7 in O.S.No.199/2014, in so far as it relates to rejection of the prayer for framing the proposed additional issue nos.(b) to (d) is set aside. The Trial Court is directed to frame proposed additional issue nos.(b) to (d) as additional -9- WP No. 45778 of 2017 issues and thereafter proceed in the matter in accordance with law.
Sd/-
JUDGE KK