Karnataka High Court
Shivajirao Balagouda Patil vs Flt Lt Kuleep Shivajirao Patil (Retd) on 30 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:12436
WP No. 103782 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 103782 OF 2024 (GM-CPC)
BETWEEN:
1. SHIVAJIRAO BALAGOUDA PATIL,
AGE: 83 YEARS, OCC: ADVOCATE & AGRICULTURE,
2. VIJAYA W/O. SHIVAJIRAO PATIL,
AGE: 67 YEARS OCC: HOUSEHOLD WORK,
3. DEEPALI D/O. SHIVAJIRAO PATIL,
AGE: 36 YEARS, OCC: SERVICE,
4. INDRAJEET S/O. SHIVAJIRAO PATIL,
AGE: 34 YEARS,
OCC: BUILDING CONSTRUCTION AND
INTERIORS DECORATOR,
ALL ARE R/O: KALKHAMB VILLAGE,
POST: MUCHANDI, TAL: &DIST: BELAGAVI-590016.
...PETITIONERS
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND:
GIRIJA A 1. FLT. LT. KULEEP SHIVAJIRAO PATIL (RETD),
BYAHATTI
AGE: 51 YEARS, OCC: TECH SERVICE BUSINESS,
Location: HIGH
COURT OF
R/O. RS NO.206 SMRUTHI, RANADE ROAD,
KARANTAKA
DHARWAD
HINDWADI, BELAGAVI-590011.
BENCH
2. DR. RUPALI KIRAN LUGADE,
AGE: 44 YEARS, OCC: MEDICAL PRACTIONER,
R/O. AGARKAR ROAD, TILAKWADI,
BELAGAVI-590006.
3. SONALI AVINASH LONDHE,
AGE: 41 YEARS, OCC: SERVICE,
R/O. BENGALURU, PRESENTLY AT: RS NO.206,
SMRUTHI, RANADE ROAD,
HINDWADI, BELAGAVI-590011.
...RESPONDENTS
(R1 & R3 HELD SUFFICIENT; R2-SERVED)
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NC: 2024:KHC-D:12436
WP No. 103782 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT QUASHING THE ORDER DATED
02/04/2024 IN OS NO.195/2013 BY THE IV ADDL. SENIOR CIVIL
JUDGE AND JMFC-BELAGAVI IS PRODUCED AT ANNEXURE-F.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
1. Heard the learned counsel for the petitioners.
2. The petitioners in this writ petition have prayed this Court to issue writ of certiorari or any other writ quashing the order dated 02.04.2024 passed in O.S.No.195/2013 by the IV Addl. Senior Civil Judge and JMFC-Belagavi ('the Trial Court' for short), vide Annexure-F.
3. The main contention of the petitioners before this Court is that;
3.1. Respondents No.1 to 3 have filed a suit for partition and separate possession and declaration in O.S.No.195/2013. The Trial Court having taken note of the pleadings of the -3- NC: 2024:KHC-D:12436 WP No. 103782 of 2024 plaintiffs and defendants, framed the issues. Thereafter plaintiffs have filed an application before the Trial Court under Order XIV Rule 5(1) read with Section 151 of CPC to frame the additional issues that, whether the defendants No.1 and 2 are legally married and whether defendants No.3 and 4 are illegitimate children of defendants No.1 and 2 and they are not entitled for any share in any of the suit schedule properties.
3.2. The application was allowed and the same is challenged before this Court in W.P.No.101288/2018. The writ petition was disposed of with a direction that the petitioners therein are always at liberty to object marking of documents, if they are sought to be marked contrary to the provisions of law and the Trial Court while framing the additional issue will not blindly accept the contention of defendants and -4- NC: 2024:KHC-D:12436 WP No. 103782 of 2024 will frame additional issue by imposing burden of proof on a person, who alleges the sad fact. 3.3. After disposal of the writ petition, the advocate for the plaintiffs made submission that the Trial Court has already framed additional issue casting burden on the defendants and defendants have preferred the appeal before the Hon'ble High Court of Karnataka and the same has been confirmed and again, there is no necessity to reconsider the order and recast the issues. The advocate for defendants took the contention that there is a direction from the Hon'ble High Court of Karnataka to reconsider the order on I.A.No.12 and prays to frame the additional issue by casting burden on the plaintiffs.
3.4. The Trial Court having taken note of the said contentions of the respective parties, formulated the points; (i) Whether the defendants have made out grounds to -5- NC: 2024:KHC-D:12436 WP No. 103782 of 2024 reconsider the order on I.A.No.12? and (ii) whether there is direction from the Hon'ble High Court of Karnataka for reconsideration of the order and framing of additional issues? and answered both the points for consideration in the negative after discussing the material record 3.5. The Trial Court also taking note of the order passed by this Court in W.P.No.101288/2018, in paragraph No.10, extracted paragraphs 3 and 4 of the order of this Court and came to the conclusion that the High Court of Karnataka has confirmed the order of the Trial Court and there is no direction to reconsider the order and recast the issues.
3.6. The Trial Court further observed that, the defendants themselves have admitted in the written statement that, during the lifetime of the first wife of defendant No.1, defendant No.1 married with the defendant No.2 as per the -6- NC: 2024:KHC-D:12436 WP No. 103782 of 2024 consent and wish of the first wife and so even if the additional issues were not framed it will not change the nature of the case and additional issues have already been framed.
3.7. Further, the arguments of the defendants' counsel is that, the burden has to be shifted on the plaintiffs to prove the additional issue is not sustainable, because, if the burden is shifted on the plaintiffs, it amounts to shifting of negative burden. So existing additional issues framed by this Court are proper and correct and the contention of the defendants is not sustainable. 3.8. Aggrieved by the same, defendants No.1 to 4 have filed the present writ petition before this Court.
4. Learned counsel of the petitioners' contended that, the issues ought to have been recasted and reframed shifting the burden on the plaintiffs, since the plaintiffs took specific pleading in the plaint that the -7- NC: 2024:KHC-D:12436 WP No. 103782 of 2024 second marriage is not a valid marriage. Instead of that, the burden is shifted on the defendants and hence the order impugned is liable to be set aside. The counsel would also contend that, the plaintiffs have knocked the door of the court in terms of Section 101 of the Evidence Act and the burden of proof is on the person who asserts the same and the order impugned is erroneous and it requires interference.
5. Having heard the petitioners' counsel and also taking note of the material on record, the suit is filed by respondents No.1 to 3 seeking the relief of partition contending that the suit schedule properties are ancestral properties and they are entitled for the share. It is also not in dispute that the defendants filed written statement contending that the second marriage is at the instance of the first wife and the same is also taken note of by the Trial Court while passing the impugned order. The reasons are also -8- NC: 2024:KHC-D:12436 WP No. 103782 of 2024 given that the defendant No.1 admits that he married second wife that too at the instance of the first wife. There is no dispute with regard to the second marriage, but the only contention of the plaintiffs is that the same is not a valid marriage. The plaintiffs also not disputing the second marriage and defendants also not disputing the second marriage. The only contention of defendants that, at the instance of the plaintiffs only the second marriage had taken place. When such being the case, I do not find any error committed by the Trial Court in framing of additional issues and the question of recasting the said issues does not arise. The additional issue framed by the Trial Court is that, whether the defendants proves that defendant No.2 is the legally wedded wife of the defendant No.1 and whether they entitled for share in the suit schedule properties. In view of the specific admission on the part of the defendant No.1 that he married the second wife, that too with the consent of the -9- NC: 2024:KHC-D:12436 WP No. 103782 of 2024 plaintiffs, the burden is on the defendants to prove whether the said marriage was taken place at the instance of the plaintiffs or not. As such, I do not find any error committed by the Trial Court in passing such an order. The very contention that the order impugned is not sustainable in the eye of law cannot be accepted. Hence I do not find any merit in the petition to quash the impugned order.
6. In view of the observation made above, I pass the following:
ORDER Writ petition is dismissed.
Sd/-
(H.P.SANDESH) JUDGE gab CT-MCK List No.: 1 Sl No.: 25