Karnataka High Court
Myalappa Aliyas Malatesh S/O ... vs Manjavva W/O Bharamappa Birajjnavar on 4 October, 2023
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NC: 2023:KHC-D:11695
WP No. 106055 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 106055 OF 2023 (GM-CPC)
BETWEEN:
MYALAPPA @ MALATESH
S/O. HANUMANTHAPPA KOYALAVAR,
AGE: 37 YEARS, OCC: BUSINESS,
R/O: SOMALAPUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
...PETITIONER
(BY SRI AVINASH BANAKAR, ADVOCATE)
AND:
1. MANJAVVA W/O. BHARAMAPPA BIRAJJNAVAR,
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: SOMALAPUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
2. GAYATRA W/O. KUMAR KARNALLI,
AGE: 37 YEARRS, OCC: HOUSEHOLD WORK,
MOHANKUMAR R/O: AVARGOL,
B SHELAR TQ: & DIST: DAVANGERE-577002.
3. CHANDRASHEKHAR
Digitally signed by
S/O. BHARAMAPPA BIRAJJANAVAR,
MOHANKUMAR B AGE: 31 YEARS, OCC: AGRICUTLURE,
SHELAR R/O: SOMALAPUR, TQ: RANEBENNUR,
Date: 2023.10.11 DIST: HAVERI-581115.
16:10:18 +0530
4. SANGEETHA W/O. DURGESH JOKANAL,
AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
R/O: KAVALETTU, POST: KUMARPATNA,
TQ: RANEBENNUR, DIST: HAVERI-581115.
5. MALA W/O. SHIVAYOGI LINGADAHALLI,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: MATTUR POST, KAGINELLE,
TQ: BYADAGI, DIST: HAVERI-581110.
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NC: 2023:KHC-D:11695
WP No. 106055 of 2023
6. DEEPA W/O. SURESH JOKANAL,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O: KAVALETTU, POST: KUMARPATNA,
TQ: RANEBENNUR, DIST: HAVERI-581115.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASH THE IMPUGNED ORDER DATED 26-
09-2023 ON I.A. NO. 13 IN O.S. NO. 38/2022 ON THE FILE OF PRL
SENIOR CIVIL JUDGE AND JMFC, RANEBENNUR VIDE ANNEXURE-D,
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by stranger purchaser assailing the order passed by the learned Judge on an application filed in I.A.No.13 seeking to reopen the petitioner's evidence and permit the petitioner to lead further evidence. The learned Judge has rejected the application. The learned Judge while rejecting the application has observed that present petitioner in spite of sufficient opportunities has failed to adduce evidence. The -3- NC: 2023:KHC-D:11695 WP No. 106055 of 2023 learned Judge has also noted that the matter is set down for arguments.
2. Petitioner has placed on record the issues framed by the trial court. On examination, issue Nos.1, 2 and 5 being core issues, the burden is entirely on the plaintiffs to establish that suit schedule properties are joint family ancestral properties. Issue No.5 also casts burden on the plaintiffs to establish that sale deeds dated 13.12.2013 and 16.11.2016 executed by Bharmappa during his lifetime in favour of the petitioner is null and void and not binding on the plaintiffs legitimate share.
3. Petitioner/defendant No.3 has moved an application when the matter is set down for arguments seeking leave to place on record the sale deeds. Though counsel for the petitioner has made feeble attempt in persuading this court that his evidence is absolutely necessary as the properties purchased by the petitioner were self-acquired properties of his vendor, the said contention cannot be acceded to at this juncture. Such a -4- NC: 2023:KHC-D:11695 WP No. 106055 of 2023 stand is not taken in the written statement. In the absence of issue in that regard, the petitioner's attempt to lead further evidence is futile exercise. It is equally trite law that in a partition suit, stranger purchaser has no voice. The sale deed executed by propositus Bharmappa and its validity will be subject to quantification of shares by the court. In the preliminary decree proceedings, the purchaser has no say and transferee's right in joint family property if any is subject to quantification of shares. The stranger purchaser has to workout his equitable rights in final decree proceedings. Therefore, I am not inclined to interfere with the order under challenge.
4. The writ petition being devoid of merits stands dismissed.
Sd/-
JUDGE MBS List No.: 5 Sl No.: 5