Karnataka High Court
R Aswathanarayana vs Smt S G Bharathi on 10 March, 2014
Author: Mohan .M.Shantanagoudar
Bench: Mohan .M. Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF MARCH, 2014
BEFORE
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
WRIT PETITION NOS.23687-23688/2013(GM-CPC)
BETWEEN:
R. ASWATHANARAYANA
AGED ABOUT 68 YEARS
S/O LATE P. RAMAMURTHY
R/A NO.14, II MAIN
N R COLONY
BANGALORE-560019
(BENEFIT OF SR CITIZEN NOT CLAIMED)
...Petitioner
(By Sri. B.N. Anantha Narayana, Adv.,)
AND :
1. SMT S G BHARATHI
AGED ABOUT 66 YEARS
W/O B M CHANDRAIAH
PRESENTLY R/A NO.21017
PRESTIGE SHANTHINIKETHAN
ITPL MAIN ROAD
MAHADEVAPURA POST
WHITE FILED, BANGALORE-560048
2. S RANGANATHA
AGED ABOUT 43 YEARS
S/O LATE P SATHYANARAYANA
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PRESENTLY R/A NO.583
V MAIN
HANUMANTHANAGAR
BANGALORE-560019
3. S MANJUNATH
AGED ABOUT 46 YEARS
S/O LATE P SATHYANARAYANA
R/A NO.14, II MAIN
N R COLONY, BANGALORE-560019
...Respondents
(By Sri. Dayalu, Lalitha P.M., Adv., for R-1)
These writ petitions are filed under Articles 226 and
227 of the Constitution of India, praying to set aside and
quash the Order dated 31.5.2013 passed on I.A. No.7 & 8 in
O.S. 1369/2010 on the file of the Court of the III Addl. City
Civil Judge, Bangalore City vide Annexure-H, etc..
These writ petitions coming on for preliminary hearing,
this day, the Court made the following:-
ORDER
Respondent No.1 herein filed a suit for possession of the suit property in her favour. Petitioner No.1 and respondents 2 and 3 are the defendants in the suit. Initially the following issues were raised by the Trial Court:-
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i) Whether the plaintiff proves that the 1st defendant is in permissive possession of the suit schedule property as alleged?
ii) Whether the plaintiff is entitled for the reliefs as sought?
iii) What order or decree?
2. The petitioner herein filed an application for recasting the issues. In other words, defendant No.1-
petitioner herein wanted the following issues to be added to the existing issues:-
i) Defendant No.1 to prove the sale deed dated 5.6.1972 is nominal one/security document for loan?
ii) Defendant No.1 to prove that
himself and defendant No.3
perfected title by adverse
possession?
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iii) Defendant No.1 to prove that the plaintiff is a money lender and this suit is not maintainable?
3. The Trial Court curiously reframed the issues as under:-
i) Whether the plaintiff proves the alleged landlady and tenant relationship between her and the defendants 1 and 3?
ii) Whether the suit is bad for mis-
joinder and non-joinder of
necessary parties?
iii) Whether the suit is barred by
limitation?
iv) Whether the plaintiff is entitled for
taking possession of the property from defendant Nos.1 and 3?
v) Whether the plaintiff is entitled for the mesne profits?-5-
vi) To what order/relief the plaintiff is entitled?
The issues earlier framed were deleted and the aforementioned six issues are now reframed. Defendant No.1-petitioner herein is aggrieved by the aforementioned six issues which are reframed by the Trial Court.
4. Sri Ananthanarayana, learned counsel appearing for the petitioner submits that the Court below is not justified in deleting the issues framed at the inception. Thus, he prays that certain of the issues now framed are to be deleted and the earlier issues framed are to be inserted.
5. Sri Dayalu, learned counsel for the respondent No.1-plaintiff submits that issues that arise for consideration is already framed by the Trial Court at the inception and therefore there was no need for the Trial Court to recast the issues. Thus, according to -6- him, the Trial Court is not all justified in recasting the earlier issues.
6. Having heard the learned advocates on record and after going through the material on record, I am of the opinion that the issues are to be reframed.
Plaintiff is claiming the suit property by virtue of the registered sale deed dated 5.6.1972. It is submitted by the learned advocates that in the earlier suit filed by the parties, it is already decided that defendant No.1 is not the tenant over the property. Thus, the only question to be decided in the suit is whether the plaintiff is entitled to possession of the suit property based on the registered sale deed or not. Though there is no counter claim by the defendants, they have pleaded that they are in adverse possession of the property. The first issue framed by the Trial Court at an earlier point of time i.e., "whether the plaintiff proves that the first defendant he is in -7- permissive possession of the property?", includes the point as to whether the defendant is in adverse possession of the property. Both these questions go hand in hand. Therefore, there is no need to have another issue casting burden on the defendants to prove that they are in adverse possession of the property. However, the issue as to "whether the suit is barred by limitation?" needs to be decided having regard to the plea taken by the defendants that the suit is barred by limitation.
Accordingly, the Trial Court is directed to frame the following issues:-
1. Whether the plaintiff proves that the first defendant is in permissive possession of the suit property as alleged?
2. Whether the suit is barred by limitation?-8-
3. Whether the plaintiff is entitled to the reliefs as sought for?
4. What order or decree?
The Trial Court after framing the aforementioned issues shall proceed with the matter. The six issues as are framed by the Trial Court by the order dated 31.5.2013 are set aside.
Writ petitions are disposed of accordingly.
Sd/-
JUDGE *ck/-